Submission to the Select Committee on Health In Regard to the Injury Prevention, Rehabilitation, and Compensation Amendment Bill (2004, No 3) by Brian Easton and Alan Gray.
Keywords: Health; Social Policy;
Summary of Submission
We support the general approach of the Bill to remove the notion of fault in medical misadventure and to extend rehabilitation and compensation to all those who suffer treatment injury. However, we do not believe there should be any exemption for treatment injury as a result of resource shortages. This is inconsistent with the Bill’s general principles.We recommend that the Bill be amended by deleting the proposed new Section 32,(2c), thus making it absolutely clear that in principle all treatment injury is covered by the ACC medical misadventure scheme, whatever the cause.We recommend that the Government immediately institute a Waiting Times Strategy to eliminate, over a period of not more than three years, excess waiting times.
We recommend that a procedure be devised that where treatment injury is caused by resource shortage, that a review process be established parallel to that which applies to health professionals.
1. General Issues: Support for the Legislation
1.1. We wish to support the general approach of the “Injury Prevention, Rehabilitation, and Compensation Amendment Bill (No 3)” which proposes to eliminate the fault element in regard to Medical Misadventure, and replace it with an entitlement based on Treatment Injury.
1. 2. The fault principle has no place in the rest of the ACC legislation, for the reason that it has no place in medical misadventure. It impedes rehabilitation, it delays fair compensation, and it discourages the development of the safety culture which should be aiming to prevent further misadventures. The submission of one of us to the earlier committee of enquiry whose recommendations led to the Bill under consideration is attached as Appendix A. (Also attached as Appendix B is a Listener column which one of us wrote.)
1.3. We are satisfied that the alternative proposals for dealing with medical professionals who display incompetence via the Health and Disability Commissioner and their professional bodies will be effective, and will not have the deleterious impact on prevention, rehabilitation and compensation that the current system generates.
1.4. We are delighted that ACC is establish a unit to use the information that will be generated by the new scheme to develop a safety culture and increase prevention. Whether such a responsibility should be included specifically in the legislation is a matter of public policy. Whether there should be unit with such a remit somewhere in the government system is a matter of principle.
1.5 We support the general approach of the Bill to remove the notion of fault in medical misadventure and to extend rehabilitation and compensation to all those who suffer treatment injury. However. we do not believe there should be any exemption for treatment injury as a result of resource shortages. This is inconsistent with the Bill’s general principles. Our objection is detailed in the next section.
2. The Resource Shortage Exemption
2.1 Section 13 of the Bill proposes to amend the principal Act by repealing sections 32 to 34, and substituting revised sections consistent with the new principles.
2.2 However the new section 32, “Personal injury caused by treatment (treatment injury)”, has a provision as follows:
(2) Personal injury caused by treatment or treatment injury does not include the following kinds of personal injury: …
(c) personal injury that is solely attributable to a resource allocation decision:
2.3 We take the view, which we believe is widely held within the professional medical community, that a personal injury arising from failure to treat for whatever reason is a treatment injury. That includes failure to treat because of resource shortages.
2.4 Therefore, we reject the Bill’s notion that the failure to treat because of resource allocation decisions is not treatment injury, even though a failure to treat by a medical professional is treatment injury,
2.5 Indeed, we see the possibility of an appalling anomaly arising, insofar as two patients could have the same condition, and be treated at the same time. One, however, may receive compensation and rehabilitation because he or she had delayed treatment as the result of a diagnostic error by a medical professional, while in the other receives none because she or he was properly diagnosed but treatment was delayed because of resource shortages.
2.6 We believe that the public will also find it unacceptable that while there is an onus on health professionals to provide high quality care, the effect of the clause is to exempt organisations providing health care from a similar standard. We doubt the public would understand the justification for omitting treatment injury because of a lack of resources from the ACC scheme.
2.7 The proposed clause is a successor to one in the current Act. The amending Bill represents a new vision for the ACC scheme as far as medical misadventure is concerned. It would be totally inappropriate to leave in the Bill a fossil from a past age – in effect an exemption for a particular sort of fault.
2.8 We recommend that the Bill be amended by deleting the proposed new Section 32,(2c), thus making it absolutely clear that in principle all treatment injury is covered by the ACC medical misadventure scheme, whatever the cause.
3. Resource Consequences of The Proposed Change
3.1 The proposed change recommended in our paragraph 2.8 primarily affects where there are waiting lists, with the consequence that patients’ waiting times exceed that recommended by good medical practice. In our view waiting lists are not necessarily inappropriate insofar as their function is medical management. What is unacceptable is excessively long waiting times as a result of mismanagement and resource shortages.
3.2 Currently many patients face excessive waiting times and, as a result, suffer discomfort, the need for further treatment, and/or death, which would have been avoided by treatment within the accepted waiting times. As far was we know ,there is no comprehensive census of the degree of backlog, but there is sufficient fragmentary evidence to indicate many patients suffer from excessive waiting times.
3.3 There are two possible broad strategies for dealing with the abandoning of the exemption for resource shortages.
3.4 The first is that the revised clause come into operation immediately with the enactment of the Bill, and that patients who experience treatment injury from excessive waiting times be dealt with by ACC in exactly the same way as those who experience treatment injury from delayed diagnosis. That option would be our preference.
3.5 However, we are aware that size of the resulting fiscal exposure is unclear. An alternative would be to include in the Bill a specific provision which maintains the principle that treatment injury arises from resource shortage, but which delays the implementation of the principle for a fixed time specified by Parliament. This follows the common practice of different parts of a Bill coming into law at different times. In our view any delay should not be more than three years although, as we have said in our section 3.4, we would prefer immediate implementation.
3.6 Irrespective of whether the strategy of our paragraph 3.4 or of our paragraph 3.5 is adopted, it will be necessary to institute a Waiting Times Strategy, the purpose of which will be to eliminate the waiting time backlogs. A letter written to various people outlining a possible Waiting Times Strategy is attached as Appendix C. We believe that such a strategy is feasible within existing fiscal parameters.
3.7 The Waiting Times Strategy is essentially that each year the Government sets aside an amount from the additional fiscal surplus, and that District Health Boards and other public agencies be invited to tender for a share of it, using the funds to reduce waiting times for particular treatments. Once the backlog had been cleared the Board would promise to maintain their waiting times within the standard set by the Ministry of Health in consultation with relevant medical professionals. We think that a modest amount – we suggested $60m a year – would eliminate excessive waiting times in a short period.
3.8 One of us examined the dynamics of waiting times, and came to the spectacular, albeit it with hindsight obvious, conclusion that elimination of excessive waiting times benefits more than those in the backlog. While the elimination is a one-off outlay, all the subsequent recipients of the treatment within the recognised waiting times also benefit. The paper attached as Appendix D gives two examples based on the effect of delaying radiotherapy treatment for breast cancer using available best estimates of the higher morbidity as a result of delay.
– one shows that eliminating a backlog of 100 would save 22 lives in the first year and 110 in the first five years;
– the second uses a benefit cost analysis framework to conclude that total impact on all the women who would benefit as a result of eliminating a backlog makes the treatment 40 plus more times beneficial than the benefit to the cohort of the backlog.
The implication in either case is that the elimination of excess waiting times must be one of the treatment practices with the highest returns available in the health system.
3.9 We recommend that the Government immediately institute a Waiting Times Strategy to eliminate, over a period of not more than three years, excess waiting times.
4. Organisational Consequences of the Proposed Change
4.1 Currently organisations which fail to provide sufficient resources and so cause treatment injury, are exempt from any review by the proposed provision 32 (2c) and the existing equivalent. Even under the new system there will be no review, even though health professional who make equivalent mistakes are subject to review via the Health and Disability Commissioner and their professional bodies.
The following were attached:
Submission by Brian Easton to the Review of Medical Misadventure
Listener column (17 April 2004) “Accidents Will Happen”
Letter: Waiting Times Strategy
“The Gains From A Reducing Waiting Times” by Brian Easton.