Executive Summary
1. That the ‘Woodhouse Principles’ be applied to assessing the options on the treatment of medical misadventure. (Section 1)
2. The fault principle which underpins medical error conflicts with the Woodhouse Principles, the Ottawa Charter and the Ministry of Health’s guidelines to reportable events, particularly in regard to prevention. (Section 2)
3. On the available information Option 3 (Unintended injury in the treatment process) is the choice which most closely fulfils these principles. (Section 3)
4. However, the consultation document does not pay sufficient attention to the prevention possibilities of the scheme, nor to the administration costs issues. Some suggestions for improvement are discussed. (Section 4)
5. The ACC should be charged with a vigorous program to reduce medical misadventure. (Section 5)
6. While the medical misadventure is currently funded as a part of the non-earners scheme, it is suggested that an ‘insurance’ levy on health professionals as a part of their ACC levy would be more appropriate. The introduction of such a levy, plus the gains from a vigorous prevention program and a reduction in compliance costs would mean that the application of option three would not add a burden to the public purse. (Section 6)
1. The Woodhouse Principles
1.1 The 1966 Royal Commission on Personal Injury (a.k.a. the Woodhouse Commission) set down principles by which an effective accident compensation scheme should be judged.
1.2 The primary principles were
“2. Prevention, Rehabilitation, and Compensation – Injury arising from accident demands an attack on three fronts. The most important (sic) is obviously prevention. Next in importance is the obligation to rehabilitate the injured. Thirdly, there is a duty to compensate them for their losses. The second and third of these matters can be handled together, but the priorities between them need to be reversed. No compensation procedure can ever be allowed to take charge of the efforts being made to restore a man to health and gainful employment.”
1.3 It added that
“3. Safety – This needs no elaboration. Any modern compensation scheme must have a branch concerned solely with safety. …”
1.4 It then sets down Five General Principles for rehabilitation and compensation:
“4. Community Responsibility
Comprehensive Entitlement
Complete Rehabilitation
Real Compensation
Administrative Efficiency.”
1.5 It is to be regretted that these principles are not mentioned in the Consultation Document. They remain a fundamental way of judging the merits of proposed schemes. In particular, the first priority that the Woodhouse Principles give to prevention is given a low priority in the Document.
2. Medical Misadventure and the Woodhouse Scheme
2.1 Medical misadventure was not in the Woodhouse Commission’s original terms of reference. It was introduced in the Accident Compensation Legislation in 1974, but it was not until 1992 that medical misadventure was defined by statute. In the interim the Courts developed their own concepts, which involved two key notions: ‘medical error’ when a person giving treatment failed to give a reasonable standard of care; and ‘medical mishap’ where there was an unexpected or undesirable accident as a consequence of medical care.
2.2 These court generated definitions maintained the notion of fault in regard to medical error, even though the concept was largely eliminated in accident compensation.
2.3 The Woodhouse Commission did not recommend the abandonment of the fault approach when it established its basic principles. Rather the abandonment derived from its application of those principles. It found that
“171, In summary our conclusions upon the topic are
…
(2) The fault principle cannot logically be used to justify the common law remedy and is erratic and capricious in operation.
…
(5) The common law remedy falls far short of the five requirements outlined in the report …”
2.4 The fault principle in medical misadventure is subject to the same criticisms, but it also suffers from a more serious failure. Recall that the Woodhouse Commission gave the highest priority to prevention. A system which is based upon fault generates a confrontational relationship between the ACC and the health professional which discourages the self-review which is essential for the health professional’s professional development.
2.5 The Ottawa Charter, the foundation document for Health Promotion sets down the necessary actions as
– Build Healthy Public Policy;
– Create Supportive Environments;
– Strengthen Community Actions;
– Develop Personal Skills;
– Reorient Health Services.
2.6 More recently, the Ministry of Health’s Reportable Events Guidelines argued, in the spirit of the Ottawa Charter:
‘There needs to be a fundamental rethinking of the way the health sector approaches the challenges from when things go wrong … To improve this outmoded approach successfully and move towards an environment that supports and encourages self-learning the following are essential:
– a standardised process for investigation, analysis and reporting
– a culture of learning – not one of blame.
– a process of communicating the lessons learned so that others may benefit from this experience.
– ensuring systems and practices change as a result of the lessons learned.’ (2001:1)
2.7 The Charter and the Guidelines are both consistent with the spirit of the Woodhouse Principles in prioritising prevention, and provide guidance on the application of those principles in regard to medical misadventure.
2.7 On the other hand the current fault-based approach to medical misadventure is out of line with the principles set down in the Woodhouse Commission, and the application of those principles as suggested by the Ottawa Charter and the Ministry of Health’s guidelines. Where medical misadventure is concerned, the ACC legislation and resulting practices are not yet at the healthy public policy stage.
3. Choosing Between the Options
3.1 Of the options proposed by the Consultative Document, only Option 2 and Option 3 removes fault as the basis of receiving ACC cover, while the status quo and Option 1 do not.
3.2 Option 3 better meets the other Woodhouse Principles than Option 2 (as noted in the Consultative Document on page 23, when it points out that it is more closely aligned with the ACC scheme.).
3.3 The Consultative Document thinks that Option 3 does not promote a learning culture in health care as much as Option 2. (p.23) However, as Section 4 of this submission argues, the report is weak on the opportunities for prevention. There is no reason why health promotion under Option 2 or Option 3 should not be more vigorous, nor why Option 3 should not involve as successful a learning culture as Option 2, perhaps more so, given that it better ‘reduces focus on the actions of individual health professionals.’
3.4 The Consultative document pays little attention to efficiency, or administration costs (Section 5). It notes that Options 2 and 3 both improve ‘time to decide cover’, and judges that Option 3 will better ‘improve[.] timeliness and understanding of cover decisions’. Such changes also reflect some reduction in administration costs.
3.5 Either Option 2 or Option 3 would be better than the Status Quo, especially if the prevention program is extended (as is possible once the no-fault principle is introduced), and given more attention to compliance costs. Option 3 is superior to Option 2 as it is more consistent with the Woodhouse Principles.
3.6 Option 3 is therefore the preferred choice for the development of medical misadventure.
4. Prevention and Health Promotion
4.1 The Woodhouse Commission gave the highest priority to ‘prevention’, saying the choice was ‘obvious’. However, there is little consideration of the topic in the Consultation Document.
4.2 As has already been argued, the removal of the fault approach offers opportunities for a more vigorous program aiming to reduce medical misadventure and improve quality of treatment.
4.3 In particular, as applies elsewhere in ACC’s area of concern, the vast majority of medical errors are largely accidental. In other (equally unlucky) circumstances, another health professional could have made a similar error. Even so, as with most accidents, the incidence of errors and the damage each generates could be reduced by practical prevention measures.
4.4 Thus ACC should not simply report back to the individual professional. The promised provision of ‘trend analysis information’ is a useful adjunct to a health promotion program. But there is also the need for reporting pertinent case studies on medical misadventure to all the relevant health professionals, in line with the reportable evens guidelines of creating a process of communicating the lessons learned so that others may benefit.
4.5 For this to work effectively, each health professional needs to belong to a cooperative peer review quality assurance group that has an established program of reviewing all adverse events. Any review of adverse events should be multidisciplinary, critically analysing the systems and processes involved with the event. It should recommend improvements and monitor the actioning of these recommendations. Its emphasis should be educational.
4.6 The specific arrangement depends on the circumstances of the professional. Those based in hospitals or group practices can have an internal peer review system. For those who work in smaller units, the group can be locals coming together, perhaps under the umbrella of a local or national association. Very isolated professionals may have to meet in cyberspace.
4.7 It is recommended that ACC be charged with a vigorous program of prevention of medical misadventure and promotion of quality assurance, in which cooperative peer review groups will be an integral part. Although such groups should (ideally) be voluntary, effective participation in quality assurance should be required as a part of professional registration.
4.8 When reviewing individual cases, medical experts should be asked to recommend any steps that should be taken to reduce the likelihood of similar problems occurring. The options should include doing nothing, feedback to the individual professional, feedback to the entire (or part of the) profession. The expert would also have the option of recommending the referral of the case for disciplinary consideration, although this latter course should be uncommon.
5. Administration Issues
5.1 The Consultative Document hardly refers to administration issues, except tangentially with its expectation that the abandonment of the fault approach will speed up decision making.
5.2 It might be thought that administration issues are outside the scope of this review. However high administration costs are sometimes forced by legislation, and any proposed change to statute should take them into consideration.
5.3 The ACC should therefore be invited to review its procedures to identify how it can reasonably reduce administration costs, including those which could be reduced by statutory change.
5.4 As well as the direct costs to the ACC of managing medical misadventure, administrations costs apply to individuals when decisions are delayed or when the requirements on them are onerous. A particular problem is when the administration costs of investigation far exceed the costs of the rehabilitation and compensation being requested.
5.5 In regard to these latter occasions, where claimants asking only for treatment costs, the ACC might have the option of identifying a ‘prima facie’ case and offering the treatment rather than an investigation. Instances might include:
– where the treatment costs are small;
– where the effect of a favourable decision would bring forward a treatment, ACC could fund the immediate treatment and be reimbursed by the District Health Board when the treatment would have normally occurred (so the cost to ACC would be only the loss of interest).
– There may be other such options for the prima facie route, again minimizing administration costs.
5.6 The suggestions in paragraph 5.5 may not apply to a lot of cases, but will reduce administration costs for the system. By focussing on treatment they prioritise rehabilitation, as the Woodhouse Principles set down, and because they are not concerned with cash transfers (compensation) they do not provide a financial incentive to use the scheme.
6 Funding the Scheme
6.1 The reform of the scheme to Option 3 (or Option 2) would involve the ACC in further outlays. The estimates provided by the Consultative Document suggest the additional costs would not be large. They would be smaller insofar as the prevention program reduced medical misadventure and where administration costs to the ACC were reduced.
6.2 Even so, the new approach may involve a further cost on the general taxpayer if the scheme were to continue to paid out of a non-earners fund.
6.3. An option would be to add to the current ACC employer’s levy for each registered medical profession an amount which would cover the full cost of the medical misadventure scheme. However, the part of the employer’s levy which was a charge on public financed health activities, would be reimbursed through the Ministry of Health. Thus the additional revenue from the scheme would come from private payments for health care.
6.4 In the longer run the levy rate might be varied to reflect the incidence of medical misadventure by institution as well as by health profession. This is not a necessary development, but it may provide some health promotion incentives.
Note: I am grateful for assistance from Dr Alan Gray, who need not agree with all the opinions expressed, and is not responsible for any mistakes.
An earlier report on an aspect of the accident compensation is The Hsitorical Context of the Woodhouse Commission