Roy Heather: Injury Prevention Rehabilitation and Compensation Amendment Bill (No 3) — First Reading 
Roy Heather: Injury Prevention Rehabilitation and Compensation Amendment Bill (No 3) — First Reading 
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HEATHER ROY (ACT) 
: 
 The Injury Prevention Rehabilitation and Compensation Amendment Bill (No 3) appears to be a series of amendments tidying up Accident Compensation Corporation anomalies that exist at present. The key measure of course is the new regime for treatment injuries. It is interesting to have a quick look through the explanatory note where the Government states that its aim “moves away from the punitive system of finding medical error and reporting medical misadventure cover decisions: gains the co-operation of the health sector to participate in the claim process to support claimants to make claims … : supports and acts as a catalyst for quality/learning initiatives in the health sector:” and “helps maintain the safety net through reporting cases …”. 
All of these are very worthy and I think that not a person in this Chamber would disagree with them. In my mind the question is in practice how all of those points will be achieved. It is a good start to try to deal with the difficulties around medical mishaps. The definitions which include “error” and “rare and severe” criteria will be replaced with a definition of “personal injury caused by treatment” or as it is referred to throughout the bill the newly defined “treatment injury”. That is a step in the right direction. 
Madam Chair I am just finding it a little difficult to concentrate with the conversations happening around me. 
Madam DEPUTY SPEAKER 
: Can I say to members—please can the member be seated—it is very difficult for members to hear. 
HEATHER ROY 
: I think that given the Accident Compensation Corporation’s “no fault” approach to accident compensation it is very logical to deal with these things. Some time ago when these changes were first mooted I made some statements. I think that for too long there has been an incentive for patients to find fault with the performance of our medical professionals—I will come on to the flip side of that coin in a moment. A separation of guilt and compensation and a fairer system of medical misadventure assessment is long overdue. Under our current system a claimant is expected to prove fault by a health professional who then has to be found culpable in order for compensation to be awarded. That has provided in the past a tempting financial incentive for a patient to prove that his or her health professional has erred. That obviously is unacceptable and there should be no such incentive in a fair system. Changes are definitely needed to ensure that anyone seeking medical compensation does so but not frivolously. 
The Minister has said on many occasions that people who should be entitled to compensation have been missing out when it comes to medical misadventure. It is very important that there is some sort of balance in this regard. ACT has maintained for quite some time that the fairest and most efficient way to deal with this matter is to establish an insurance-based scheme that should be open to competition including involvement from the private sector. This would ensure that while deserving patients are compensated our health professionals are not left open to illegitimate claims. 
Going back briefly to what the Government intends in this legislation it talks about supporting and acting as a catalyst for quality learning initiatives in the health sector and I believe that that comes back directly to protected quality assurance provisions for all health professionals. Those have been seen for many years and have developed well over the past decade amongst the medical profession and that profession has been including other health professionals as time has gone on and other health professionals have also developed their own good-quality quality assurance programmes. 
The Health Practitioners Competence Assurance Act which is due to come into force in September provided a lot of discussion around this point. At the beginning many of us on the select committee were very unhappy with the provisions for the protection of quality assurance programmes. Those concerns have in the main been dealt with and certainly the medical profession and many of the other health professionals’ bodies have now decided that they can operate well with them. But what we want to establish is an environment where health professionals feel they are able to get together with a degree of protection and discuss mistakes that have been made in a no-blame environment and learn from the experiences of those who have been in such positions themselves. 
Before I move forward much further I would like to talk a little about the accident compensation scheme generally and again these are points that are pertinent to this legislation although they do cover the whole of the scheme. ACT has always been unhappy that injuries caused by accident are covered for compensation but illness is not. Those of us who have worked in the medical profession do not have to look very far to find examples. In fact if one wanders into any orthopaedic ward in the country in either private hospitals or public one will often see two patients in beds side by side. One might be somebody who is perhaps in his or her 60s who through no fault of his or her own has developed osteoarthritis and requires surgery for a joint replacement. It is not uncommon to find in the next bed a young person who might have had a motorbike accident—frequently caused by that person’s own mistake—and because it was an accident that person is covered for compensation. Those of us who have worked in that situation often observe the injustice those two separate injuries present despite the fact that they receive similar treatment and the patients have similar health needs. New Zealanders deserve a health system that deals with those two categories requiring medical treatment in the same way. Many people seem to have given up on creating that fair kind of system but it is achievable by using insurance-based schemes. 
For a brief period of course in 1999 we did have a glimmer of hope about achieving that type of system. Competition was introduced into the market and the private sector was allowed to tender alongside the public. The choice that was presented to the employers for the employers account in this regard is something that ACT is certainly committed to achieving again. 
But if I turn back to the bill I find it does appear logical to align “treatment injuries”—as the new definition will be—with the general no-fault approach to accident compensation. But ACT would like to highlight some potential problems. 
The bill tries to define treatment injury so as to exclude the particular injury or complaint itself. Some might say that that is logical but for others it would signal a creeping extension of the accident compensation scheme to cover sickness and ill health and I do not think that is the intention of this legislation at all. But in trying to define it issues do arise. The new section 32(2) proposed to be inserted into the Injury Prevention Rehabilitation and Compensation Act by clause 13 describes the sorts of things that are not considered personal injuries and there is a list. They include the underlying condition. They also include anything that might arise from a logical progression of the condition or treatment if it is an anticipated part of the treatment and may include known side effects as an example. But then the new section 33 defines “treatment” extremely widely. It includes treatment diagnosis and even the decision not to give treatment or to not provide treatment in a timely manner. Potentially any situation where a health professional fails to immediately and correctly diagnose a condition and correctly treat it could be construed as a treatment leading to a treatment injury. That could even apply perhaps to the non-treatment of the thousands of people on waiting lists for elective services. 
But going back to the new section 32(2)(c) that paragraph lets the Government off the hook by excluding from the definition of personal injury caused by treatment or treatment injury “personal injury that is solely attributable to a resource allocation decision:” and this is where the waters suddenly become very murky. The lack of treatment or failure to provide treatment is defined as a treatment—so far so good. But what if the injury is not solely attributable to a resource allocation decision? What if that is only 90 percent of the reason for the injury? So here I think and my concern is raised that this opens up the grey area for lawyers and litigation that has been discussed by some other members. There is a grey area in what is a result of a resource allocation decision and a grey area as to whether and to what extent any treatment is an anticipated part of treatment. It would seem that conflicting medical opinions will be all that is required to show that some doubt exists as to the cause of any injury. I too like Dr Hutchison would like to highlight that there is no regulatory impact statement with this bill and we will be raising that at the select committee. 
JUDY TURNER (United Future) 
: 
 I rise on behalf of United Future to support the referral of the Injury Prevention Rehabilitation and Compensation Amendment Bill (No 3) through to the select committee stage. As a consequence of a recent review initiated by the Government this bill is primarily designed to change the way in which medical misadventure claims are covered by the accident compensation scheme. Such claims fall into two categories: medical error which covers the failure of a health professional or organisation to observe a certain standard of care and medical mishap which covers adverse consequences of treatment. But perhaps the most significant amendment in this bill is that it removes the distinction between the two and replaces them with a definition of “personal injury caused by treatment”. Medical misadventure claims now cost about $47 million a year and the changes are estimated to cost an extra $8.69 million because the new definition of “treatment injury” does broaden the scope of claims. 
Amongst the present criteria for a successful medical mishap claim is the requirement that the injury needs to be both rare and severe which means that it must occur in no more than 1 percent of cases and in some cases requires at least another 14 days of treatment. Such criteria are too arbitrary often bearing little relationship to the circumstances of patients and resulting in a significant number of claimants unfairly missing out on cover. It probably comes as little surprise to learn that since the medical misadventure system was introduced in 1992 60 percent of claims have been declined for failing to meet the criteria. 
In terms of establishing medical error the current criteria mean establishing that an individual practitioner or organisation is at fault. That has always been inconsistent with the no-fault ethos of the accident compensation scheme. The removal of the distinction between error and mishap under this bill and the new focus on personal injury caused by treatment directs the Accident Compensation Corporation to examine the injury that results not whether someone is to blame for it. 
In addition the current requirement that the corporation must establish responsibility and report individual practitioners involved in medical error claims to the relevant registration authority has resulted in reluctance to participate in the claims process on the part of health practitioners. As a result the resolution of claims is often delayed or hindered and it is the person who is injured who suffers as a result whether medical error is established or not. 
It is expected that practitioners will be more receptive to an accident compensation claim investigation if they know that it is focused more squarely on ascertaining whether the patient is eligible for assistance rather than determining where the fault lies. That raises the question of who has responsibility that those who make medical errors are investigated. Under the bill the Accident Compensation Corporation will have a clear obligation to inform claimants of their ability to complain about treatment injury and of the role of the Health and Disability Commissioner. If the corporation decides there is a risk of harm to the public as a result of information it collects in order to process claims then it must report the information to the agency that has statutory responsibilities for addressing and determining competency issues such as the Director-General of Health. That is entirely consistent with the corporation’s injury prevention role. 
It is also fair to point out that the mechanisms for dealing with practitioner competence have developed significantly since the medical misadventure scheme began. Since the establishment in 1996 of the Health and Disability Commissioner to resolve patients’ complaints and accountability concerns there has been a fourfold decrease in the number of practitioners facing disciplinary hearings. District health boards have improved systems in place to monitor and address issues arising from adverse medical events and the passage of the Health Practitioners Competence Assurance Act last year created a single regulatory framework for health professionals. 
Perhaps the key area of concern for United Future is that the bill may not go far enough to ensure that incidents of treatment injury are fully investigated. That is not to say that that should be the responsibility of the Accident Compensation Corporation as we accept the position that that is not the intent of the scheme nor is it where the corporation’s expertise lies. But we do need to make absolutely sure that some other entity steps into the breach and it needs to be aware of what is going on when it does so. This House is all too familiar with one common cause of most incidents of systemic failure: the lack of inter-agency coordination. Perhaps the examples that spring most readily to mind are those tragic instances where the agencies involved in child protection have failed to work together to ensure the safety of abused and neglected children. 
I am concerned that the desire to put the Accident Compensation Corporation at arm’s length from investigations into staff competence could lead to a situation whereby the risk of further injuries is not adequately communicated to those who have responsibility for practitioner competence and conduct. For example what is the threshold for action in a situation in which the Accident Compensation Corporation decides it should pass on information that it collects in the course of processing claims that suggests there is a risk of harm to the public? Does the corporation wait until it is aware of repeated instances of error or does it act only when it considers the problems to be systemic rather than simply accidental? And are there such things as accidents or on the other hand is there a danger that the reporting requirements that remain will still lead to reluctance from health practitioners to participate in the claims process if they feel they will be reported to their professional body? Those are certainly issues that the committee will need to focus on when considering the bill. But at this stage we are very happy for it to enter the process and we will support the first reading.