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L4 Prof Development Patient Rights

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aliasesL4 Prof Development Patient Rights

11 min read

Overview

This lecture is the second in a three-part medical law series and covers patient rights in Aotearoa/New Zealand: what a “right” is and how patient rights relate to legal and human rights, the history and structure of the Code of Health and Disability Services Consumers’ Rights, a worked case example applying the Code, and the Health and Disability Commissioner (HDC)‘s complaints process and recent statistics.

What are rights?

  • Rights are freedoms and entitlements.
  • Legal rights are freedoms or entitlements supported by law.
  • Human rights are freedoms and entitlements every human being should have (some are also legal rights).
  • Patient rights are freedoms and entitlements every patient should have (some are also legal rights).
  • Everyday examples given of different kinds of rights: the right to remain silent, women’s right to vote, the right to housing, children’s right to free education, parents’ right to choose a religious school, and a patient’s right to refuse treatment.
  • Selected sources of patients’ rights in NZ: principles of the Treaty of Waitangi; international documents (e.g. Universal Declaration of Human Rights, Declaration of Helsinki); Bill of Rights Act 1990; Human Rights Act 1993; Privacy Act 2020 and the Health Information Privacy Code; Health and Disability Commissioner Act 1994 and the Code of Health and Disability Services Consumers’ Rights.

History of the Code

  • 1960s-1980s: an unethical cervical cancer study at National Women’s Hospital was exposed by journalists Sandra Coney and Phillida Bunkle (“An Unfortunate Experiment at National Women’s”).
  • This led to the 1988 “Report of the Committee of Inquiry into Allegations Concerning the Treatment of Cervical Cancer at National Women’s Hospital and into Other Related Matters.”
  • 1994: the Health and Disability Commissioner Act (assented 20 October 1994) was passed, establishing the HDC and the Code of Health and Disability Services Consumers’ Rights.

Structure of the Code

  • Clause 1: consumers have rights, providers have duties, and providers must take steps to inform consumers of their rights.
  • Clause 2: sets out the 10 rights.
  • Clause 3: there is no breach if the provider took “reasonable actions in the circumstances” to give effect to the rights and comply with the duties in the Code; the onus is on the provider to prove this. “The circumstances” includes the consumer’s clinical circumstances and the provider’s resource constraints.
  • Clause 4: definitions.

The 10 rights

  • Right 1: right to be treated with respect.
  • Right 2: right to freedom from discrimination, coercion, harassment, and exploitation.
  • Right 3: right to dignity and independence.
  • Rights 1-3 form the “attitudinal umbrella” under which all services must be delivered.
  • Right 4: right to services of an appropriate standard, meaning services provided with reasonable care and skill, that comply with legal, professional, ethical and other relevant standards, delivered in a manner consistent with the consumer’s needs, in a manner that minimises potential harm and optimises quality of life, and with cooperation among providers. Referenced standards include Good Medical Practice (Medical Council of NZ) and the Code of Professional Conduct for Medical Students.
  • Right 5: right to effective communication.
  • Right 6: right to be fully informed.
  • Right 7: right to make an informed choice and give informed consent, including refusal and withdrawal of consent.
  • Right 8: right to one or more support persons.
  • Right 9: the Code applies in teaching and research.
  • Right 10: right to complain.

Case example: follow-up of test results and referral

Case reference: hdc.org.nz/decisions/search-decisions/2014/13hdc00599.

  • Right 6 breach: Dr C failed to fully inform Mrs A of imaging results. The HDC considered this especially significant given the potential seriousness of the result in light of Mrs A’s history of breast cancer, and found this was information a reasonable consumer in her circumstances would expect to receive. Dr C breached Right 6(1).
  • Right 4 breach (quote 1): Dr C did not review the records when he saw Mrs A on 23 November 2009 and did not arrange adequate timely follow-up, so failed to provide services with reasonable care and skill, breaching Right 4(1).
  • Right 4 breach (quote 2): Dr C’s referral letter was not of an appropriately professional standard because it did not give the specialist all the relevant information about Mrs A’s clinical history, breaching Right 4(2).
  • HDC recommendations arising from the case: GP to send a written apology to the family; GP to review aspects of his practice and provide HDC evidence of changes; GP to audit the past two years of records to ensure proper test communication and follow-up; the medical centre to develop policies ensuring test results are actioned and referrals made in a timely manner; HDC report sent to the Medical Council recommending a competence review; HDC referred the case to the Director of Proceedings to consider disciplinary action.

Additional case studies (rights breached to be identified from case facts)

  • Doctor breached the Code for providing anti-vaccination misinformation (21HDC02706).
  • Inadequate healthcare provided to a patient in prison (16HDC01703).
  • Failure to provide information about fertility to a young man prior to chemotherapy (13HDC00475).
  • Insensitive communication and discriminatory behaviour when reviewing an HIV-positive patient for colonoscopy (03HDC13605).

HDC complaints process

When a complaint is received, the HDC conducts a preliminary assessment leading to one of four outcomes:

  1. Close the complaint.
  2. Refer the complaint back to the provider (which can lead to the Advocacy Service).
  3. Refer to the Privacy Commissioner or another agency.
  4. Formal investigation, after which the HDC decides whether the Code has been breached.

HDC statistics (2024/25 Annual Report)

The HDC pursues its strategic objectives through four key functions: complaints resolution; promotion and education; system monitoring and impact; and focus populations (Māori, disabled people, and older people).

  • Complaints received: 2,647 by the Advocacy Service, 3,477 by the HDC.
  • Enquiries: 1,643 to HDC, 25,120 to Advocacy.
  • Complaints closed: 2,649 by Advocacy, 4,406 by HDC (including 190 investigations). The HDC closed 27% more complaints than it received.
  • 96% of Advocacy complaints were closed within 6 months.
  • 68% of HDC complaints in 2024/25 were closed using early resolution methods.
  • 82% of respondents were satisfied with the Advocacy Service’s complaint management process.
  • 809 recommendations were made to improve service quality and compliance; 91% were complied with.
  • Advocacy carried out 1,092 education sessions and 2,642 networking sessions (81% focused on priority populations).
  • 18,460 of HDC’s online education sessions were completed by providers.
  • 162 engagements with the aged care sector and older people to advocate for better services.
  • 329 systems and public safety issues were escalated.
  • 28 hui ā-whānau were held.

Outcomes of complaints closed by HDC in 2024/25 (Table 1)

  • Investigation: 190 total, comprising breach finding 145, no breach with adverse comment and recommendations 24, no breach with recommendations 7, referred to regulatory authority 5, no further action with recommendations or educational comment 4, assessment concluded with no further action needed 5.
  • Other resolution following assessment: 4,103 total, comprising no further action with recommendations or educational comment 530, referred to regulatory body 106, referred to other agency 44, referred to provider 1,004, referred to Advocacy Service 296, assessment concluded with no further action needed 2,021, withdrawn 102.
  • Outside jurisdiction: 113.
  • Total complaints closed: 4,406.

What was complained about (Table 2, most common primary issues, 2021/22 to 2024/25)

  • Inadequate/inappropriate treatment: 186, 302, 358, 391.
  • Missed/incorrect/delayed diagnosis: 240, 246, 228, 261.
  • Delay in treatment: 116, 135, 237, 252.
  • Inadequate/inappropriate examination/assessment: 144, 131, 168, 198.
  • Unexpected treatment outcome: 90, 122, 179, 149.
  • Failure to communicate effectively with consumer: 136, 151, 170, 165.
  • Lack of access to services: 119, 176, 156, 148.
  • Disrespectful manner/attitude: 163, 138, 152, 138.
  • Waiting list/prioritisation issue: 70, 108, 102, 104.
  • When all issues raised (not just primary issues) are considered, the most common complaint categories in 2024/25 were: care/treatment 78%, communication 68%, access/funding 16%, consent/information 15%, medication 15%, facility issues 12%.

Who was complained about (Tables 3 and 4, 2021/22 to 2024/25)

  • Organisations: Health New Zealand district (1,243, 1,377, 1,468, 1,326); medical centre (805, 786, 745, 742); prison health service (73, 112, 139, 174); aged residential care facility (183, 185, 184, 154); dental clinic (86, 98, 177, 121); pharmacy (111, 114, 109, 86); disability support provider (60, 64, 66, 78); specialist clinic (45, 70, 62, 67); home care services provider (103, 83, 63, 50).
  • Provider occupations: general practitioner (364, 371, 334, 314); midwife (79, 86, 96, 105); nurse (62, 74, 90, 93); dentist (64, 58, 186, 82); psychiatrist (65, 68, 71, 69); orthopaedic surgeon (51, 50, 57, 60); psychologist (67, 46, 67, 58).

Online resources

Ministry of Health, Medical Council of New Zealand, Health and Disability Commissioner, Human Rights Commission, Privacy Commissioner, and the Health Practitioners Disciplinary Tribunal websites were given as further resources (see lecture slides for URLs).

Self-test

  1. Distinguish a legal right from a human right, and explain how a patient right relates to both.
  2. List the sources of patients’ rights in New Zealand identified in the lecture.
  3. Describe the historical sequence of events that led to the creation of the Health and Disability Commissioner Act 1994.
  4. Explain what Clause 3 of the Code requires of a provider to avoid a finding of breach, and who bears the onus of proof.
  5. List Rights 1 to 3 and explain why they are described as the “attitudinal umbrella.”
  6. Describe what Right 4 (services of an appropriate standard) requires of a provider.
  7. In the follow-up case example (13HDC00599), explain why Dr C was found to have breached Right 6, and why the imaging finding’s context made this significant.
  8. In the same case, describe the two ways in which Dr C breached Right 4.
  9. List the six recommendations the HDC made following the follow-up case example.
  10. Describe the four possible outcomes of an HDC preliminary assessment.
  11. What proportion of HDC complaints in 2024/25 were closed using early resolution methods, and what proportion of recommendations made were complied with?
  12. Using the 2024/25 data, describe the trend in “inadequate/inappropriate treatment” as a complaint issue from 2021/22 to 2024/25, and identify the two most common complaint categories when all issues raised are considered.

Answers

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