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Accountability and fair pay.

Nurses' practice is subject to investigation from a plethora of organisations and authorities. Nurses are also subject to the same disciplinary processes and outcomes, which can include substantial financial penalities, as other health practitioners. But nurses do not have the same ability to earn as much as many other health practitioners. Is that fair?

Nurses are no longer doctors' handmaidens. Nursing is a regulated, independent profession, with high standards of practice across all specialties.

When an adverse event occurs, nurses are just as accountable as all other health practitioners and are investigated in exactly the same way and are subject to the same penalties. Their pay should reflect this.

The special occupation of health practitioner gives rise to legal considerations peculiar to that occupation. Nursing is only one of many health practitioner occupations in New Zealand, but all are treated in the same manner if an adverse event occurs and is investigated. It is the special occupation of health practitioners generally that gives rise to particular legal considerations. Nurses are in the same position as all other health practitioners when it comes to how their practice is scrutinised, their conduct investigated, and the disciplinary procedure and penalties that can be imposed on them. This is despite the huge disparity in pay between them and other health practitioner groups, eg doctors. Nurses' pay is considerably less than that of some other health practitioners, yet nurses are equally accountable.

Nurses are no different to other health practitioners in that they are subject to standards of care. Acts of Parliament and regulations have created standards in the form of codes of conduct in respect of such things as privacy, informed consent, and mental health patients' rights. These standards are contained in the Privacy Act 1993, Health Information Privacy Code 1994, Health and Disability Commissioner Act 1994, Health and Disability Commissioner (Code of Health and Disability Services Consumers' Rights) Regulations 1996, and Part 6 of the Mental Health (Compulsory Assessment and Treatment) Act 1992. Much of this legislation affects consumer rights, and came about to address perceived power imbalances between health practitioners and consumers.

There have also been standards published by Standards New Zealand, which, in effect, are delegated legislation. In 2002, the New Zealand Minister of Health gave notice under the Health and Disability Services (Safety) Act 2001, approving health and disability standards and mental health standards in the provision of hospital, residential disability, and rest-home care. These standards are found in booklet form and are available from the Ministry of Health and Standards New Zealand. They are designed as guidelines to help health organisations implement policies and protocols to ensure compliance with legislation, eg the Code of Health and Disability Services Consumers' Rights (the Code). They also set standards for the development of policies and protocols relating to privacy, infection control, mental health services and restraint. While these standards are designed to help health agencies towards best practice, it may well be that they will come to be regarded as a standard against which practice is measured, and that failure to follow a guideline in a standard could amount to a breach of a legal standard.

There are also professional and ethical standards set by the various professional bodies, and these are also used when considering whether the health practitioner's practice is reasonable. The means to investigate and discipline members of the profession who allegedly fall short of these standards of practice, is exactly the same for all health practitioners, regardless of what they are earning. Nurses, just like doctors and dentists, who earn substantially more than nurses, may find their practice scrutinised by many bodies that have the power to carry out investigations, sometimes simultaneously.

For example:

* A judge in a civil law proceeding

* A Coroner

* A Professional Conduct Committee

* The Health Practitioners' Disciplinary Tribunal

* The Health and Disability Commissioner

* The Director of Proceedings

* A District Inspector of Mental Health

* The police, investigating whether to prosecute for breach of the criminal law

* The Privacy Commissioner

* The Human Rights Review Tribunal

* The Accident Compensation Corporation's Medical Misadventure Unit

* A sentinel event inquiry

* A Commission of Inquiry

One complaint may be investigated by up to 12 different bodies, and health practitioners may need to defend their practice before each of these.

An example of this interrelatedness is where someone dies in a hospital, perhaps a patient in a psychiatric ward or a baby following a traumatic delivery. The hospital will immediately begin risk management procedures that might include a sentinel events process or some internal case investigation. There will be a perinatal or internal mortality review, where the care given will be scrutinised. There may also be an independent review. The matter will be referred to the Coroner and police interviews may be required.

A claim for funeral expenses may be made to ACC, and this will initiate a medical misadventure investigation. The family may make a complaint to the Health and Disability Commissioner. If a breach of the Code is found, then the health practitioner may be investigated by the Director of Proceedings, who may lay a charge of professional misconduct. This is then heard before the Health Practitioners' Disciplinary Tribunal (see box at right). A full, public disciplinary hearing will take place and once that finding is issued, there is potentially a further hearing before the Human Rights Review Tribunal. If the health practitioner is unhappy with the decisions of either of these two latter bodies, he or she has the right to appeal to the Court.

If the circumstances are particularly serious, criminal and civil proceedings may also be initiated against the health practitioner. The final forum before which a health practitioner may have to appear and give evidence is generally a Coroner's Court.

It can take many years to move through each of these forums, and this can leave both patient and practitioner psychologically battered. Neither party is able to achieve closure and move on with their lives while various proceedings are still hanging over their heads.

Not only are the various organisations that can scrutinise a health practitioner's conduct interrelated, but evidence from one forum can also be used by another. For example, Coroners' inquests are usually held in open court, so investigators from the Health and Disability Commissioner's office can sit in on an inquest. As inquests are generally open to the public, there is nothing to prevent anyone attending.

Mention also needs to be made of the media's role in relation to accountability. It is very difficult for health practitioners who are filmed or named in the media to escape damage to their reputation, regardless of the outcome of any investigation.

Also, all health practitioners, regardless of which profession they belong to, could find themselves the subject of proceedings brought by the Director of Proceedings before the Human Rights Review Tribunal for a serious breach of the Code. Where the Tribunal is satisfied, on the balance of probabilities, that there is a breach of this Code, it may:

* declare there has been a breach of the Code;

* order the health practitioner to restrain from continuing or repeating the breach;

* order the health practitioner to perform certain acts to redress the loss or damage suffered by the complainant;

* order payment of compensation to the affected. (1)


All health practitioners are now regulated and disciplined under the same legislation, the Health Practitioners' Competence Assurance Act (HPCA) 2003.

Under the HPCA Act, all health practitioners, regardless of their profession and regardless of what they earn, are disciplined in exactly the same way--before the Health Practitioners' Disciplinary Tribunal.

The Tribunal is an independent disciplinary tribunal that will hear charges of professional misconduct against all health practitioners. In the case of nurses, this is instead of the Nursing Council. The Tribunal will consist of a chairperson, who is a lawyer, and four panel. members, three of whom must be professional peers of the health practitioner who is the subject of the hearing, and one must be a layperson.

The procedure and process is exactly the same for all health practitioners and the Tribunal has the power to order exactly the same penalties to all health practitioners.

These include:

* Cancellation of registration by removal of the name of the person concerned from their register;

* Suspension from practice for a period not exceeding three years;

* An order that practice is only carded out under supervision;

* A fine not exceeding $30,000; and

* Censure.


(1) Johnson, S. (General Editor) (2004) Health Care and the Law (3rd New Zealand edition); Wellington: Brookers Ltd.
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Article Details
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Title Annotation:Legal Focus
Author:Johnson, Sue
Publication:Kai Tiaki: Nursing New Zealand
Geographic Code:8NEWZ
Date:Oct 1, 2004
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