Current developments in New Zealand health law.

• Author: von Tigerstrom, Barbara

The legal framework governing health care in New Zealand is similar in many respects to that in Canada and other common law jurisdictions. There are however, some important differences, which are of interest from both an academic and a practical perspective. In addition, New Zealand health law is in the midst of an especially dynamic period, with legislative reforms recently undertaken or on the horizon in a number of areas. This paper will briefly describe a few of the more significant current developments, aiming to highlight features that are unique to New Zealand or otherwise of particular interest.

1. Context: The New Zealand health care system and legal system

   The health care system in New Zealand is composed of a comprehensive public system much like Canada's, but unlike in Canada a parallel system of private insurance and private clinics and hospitals exists alongside the public system. The public system is administered by 21 District Health Boards (DHBs), reporting to and receiving funding from the Ministry of Health. The DHBs are generally responsible for planning and providing services for the population of a specific area, though the Ministry retains a degree of direct involvement in some areas including mental health and public health. (1)

   There are a few significant differences between the New Zealand and Canadian legal systems that are relevant to health care. First, unlike Canada and neighbouring Australia, New Zealand is a unitary jurisdiction with no provinces or territories, so there is no division of powers and national legislation regulates health care throughout the country. A further difference is the lack of a written constitution or a constitutional charter of rights. The New Zealand Bill of Rights Act 1990 (2) includes many of the same rights as the Canadian Charter of Rights and Freedoms, but has only the status of ordinary legislation and gives way to an inconsistent provision in another statute. (3) As well as the rights to life and liberty, the Bill of Rights includes explicit rights "not to be subjected to medical or scientific experimentation without ... consent" and "to refuse to undergo any medical treatment." (4)

   Apart from these differences in general public law, the most striking--and probably the best known--feature of the New Zealand legal system that is relevant to health law is the existence of a no-fault compensation system for personal injuries due to accident. A brief discussion of this scheme as it applies to "medical misadventure" will be discussed in the next section. Before turning to that topic, one important institution should be mentioned: the Health and Disability Commissioner (HDC). The HDC was created in response to the report of the Cartwright Inquiry, (5) a committee of inquiry established in 1987 following public outcry about a research study undertaken at the National Women's Hospital in Auckland. From 1966 to the mid-1980s, women at the hospital were subjected to repeated cervical smear tests and biopsies without being offered adequate treatment, in order to test a theory that carcinoma in situ was not a precursor of invasive cervical cancer, as was (and still is) the prevailing view. The great majority of women were not informed that they were participating in a research study, and it appeared that obvious symptoms of invasive cancer were overlooked or downplayed. Following protests by members of the medical community and the public, a committee of inquiry was established, led by Justice Silvia Cartwright. (6)

   Among the recommendations of the inquiry was the need to appoint a Health Commissioner to receive and investigate complaints and raise health professionals' awareness of patients' rights, and the need to develop a statement of patients' rights. In 1994, the office of the HDC was established, (7) and the Code of Health and Disability Services Consumers' Rights (the Code) was enacted as a regulation in 1996. (8) This Code includes the right to be treated with respect; to freedom from discrimination, coercion, harassment and exploitation; to dignity and independence; to services of an appropriate standard; to effective communication; to be fully informed; to make an informed choice and give informed consent; to support; and to complain about a health or disability service provider. (9) These rights incorporate the essential common law principles of medical negligence, consent, and informed consent as well as other basic rights. In the event of a complaint, the onus is on providers to show that they took "reasonable actions in the circumstances" to give effect to these rights. (10) Any person may complain to the HDC of an alleged breach of the Code, (11) and the Commissioner may commence an investigation either in response to a complaint or on his own initiative. (12) Complaints may also be referred to the HDC from health professional bodies, in which case proceedings by those bodies will be suspended pending the Commissioner's investigation. (13) If a breach of the Code is found, the Commissioner may make recommendations to the provider; report his opinion to the health professional body, Minister, or other appropriate person; make a complaint to a health professional body (or assist the individual in making a complaint); or refer the matter to the Director of Proceedings. (14) The Director of Proceedings may then provide assistance or representation to a complainant in disciplinary proceedings, or institute proceedings before the Human Rights Review Tribunal or disciplinary proceedings. (15) If the matter goes to the Human Rights Review Tribunal, the Tribunal has the power to declare a breach of Code and order any appropriate relief. (16) The HDC framework therefore combines some of the advantages of the ombudsman model--providing relatively simple, accessible, flexible, and speedy procedures for the resolution of complaints--with more extensive powers, where appropriate, to provide an important independent accountability mechanism for health care in New Zealand.

2. The ACC framework and "medical misadventure"

   Originally established by the Accident Compensation Act 1972, the accident compensation scheme has been revised several times and is now governed by the Injury Prevention, Rehabilitation, and Compensation Act 2001. (17) The scheme is administered by the Accident Compensation Corporation (ACC; formerly Accident Compensation Commission) and is funded by premiums paid by employers and employees as well as a variety of other sources including some direct payment from government. It provides no-fault insurance for personal injury caused by accidents (including, but not exclusively, motor vehicle accidents), occupational conditions and diseases, and "medical misadventure." (18) A claimant who is covered by the Act may be eligible to receive rehabilitation (including medical treatment) as well as weekly or lump sum compensation. (19) The Act bars court proceedings for damages arising directly or indirectly from personal injury that is covered by the scheme, (20) so it is not possible to sue for damages in addition to or instead of claiming under the Act. The exception to this is claims for exemplary damages, (21) but the courts have insisted that exemplary damages will only be awarded in exceptional cases, are not intended to be compensatory, and are not to be used to remedy any perceived inadequacy of ACC entitlements. (22)

   Personal injury caused by "medical misadventure" is among those covered under the Act, and includes personal injury suffered by someone seeking or receiving treatment by or at the direction of a registered health professional. (23) Abnormal reactions and complications, as well as injuries suffered in the context of a clinical trial, are included only if certain conditions are met. (24) Cover extends to a third party such as a spouse or child who is infected as a result of infection caused by medical misadventure. (25) In all cases, only personal injury caused by medical misadventure is covered, so causation must be established. It is up to the claimant to prove causation; the fact that medical misadventure might have contributed to the injury is not sufficient to establish a claim. (26)

   Medical misadventure may consist of either "medical mishap" or "medical error." (27) Medical mishap refers to a severe, rare adverse consequence of treatment that was properly given. (28) Medical error, by contrast, is essentially medical negligence: "the failure of a registered health professional to observe a standard of care and skill reasonably to be expected in the circumstances." (29) It can include a similar failure by an organisation where "the error cannot readily be attributed to a particular registered health professional." (30) The statute specifies that medical error can arise in the course of diagnosis, giving...