Health Law and Policy

 Introduction
The New Zealand healthcare providers are dedicated to the provision of quality healthcare to disabled individuals in the society. This is in pursuant to the 1994 Act committed to the promotion and protections of rights of persons with disability. The health and Disability Commissioner Act 1994 guarantees patients rights in the country. The legislation is a response to an indictment that found gross violation
of patients rights in the country because of lack of informed consent and peer supervision. The investigations revealed poor ethical practices that limit the ability of the healthcare system to deliver quality services to the patients. The country presented a unique challenge, especially for the patients because of the no fault accidental compensation scheme. The scheme left no means for the patients to present complaints. The Act provides a means of measuring healthcare services for the disabled in the society.
The main feature of the Act is right four that the rights to service of every disabled patient. The code guarantees every disabled person the right to service by a reasonably skilled practitioner with care. The services provided must comply with all the relevant standards. The services provided to the patient must be consistent with his or her needs and aim at minimizing the potential to harm the patients quality of life. The last unalienable right to the consumer is his or her right to co-operate with others to ensure quality and continuity of service. A close examination at the rights guaranteed in Right 4 reveals that most of them are vague and open to different interpretation. Given the ambiguity of these standards and others in the health care sector, this analysis investigates possible interpretations in cases where patients file complaints against a practitioner.
Health law and policy
The New Zealand approach to ensuring appropriate healthcare relies on the Bolam Standards. The Bolam standards were first established in a 1957 case of Bolam v Friern hospital management committee. From this case, the Bolam test was derived. The Bolam test recognizes that reasonable care must conform to standards acceptable by peers in the profession. This test enables the court to pursue the standards in right four despite their vagueness. In healthcare, an investigation may start in one of several ways. This includes a coroner investigation, which deals with the death of a patient and is aimed at preventing future death and ensuring justice. An investigation may start as a police investigation with the purpose of establishing criminality in an adverse event. An investigation may also be an ACC investigation, which is aimed at determining harm with to establish entitlement to compensation (Keenan, 2010). There are also investigations carried out by healthcare organizations internally to ensure the hospitals and other healthcare facilities often the best service possible. Some of the internal investigations aim to determine whether malpractice has occurred while others aim to ensure compliance with regulations (Skegg and Paterson, 2007).
Patients data is protected by The Health Practitioners Competence Assurance Act, 2003. Some of the information protect by this Act may be obtained during a protected quality assurance activity. The ministry of health has the authority to authorize the release of this information in cases where there is substantial evidence that a malpractice may have occurred. The health and disability commissioner conduct the investigation and pass the information to the medical Council for considerations. Although the Bolam test provides a means of investigating malpractice in the healthcare provisions sector, there is no knowledge or discipline basis in the investigation. There are no clear regulations outlining how investigators are chosen (Greer et al, 2013). The standard practice of the investigators is also not clear. Standard practice is ambiguous because it is not clear who take responsibility for what. Even in cases where there is delegated responsibility. Members of the profession are unclear on the medico-legally responsible individual in case of an adverse event. It is also not clear who is the first contact when a practitioner or any other individual has questions about the quality of care provided to a patient (Keenan, 2010).
It is clear from the above examples that there is room for improvement in the healthcare sector. This is especially true for the safety investigation function. Regardless of the shortcoming outlined above, the organizations involved have enhanced safety for both the patients and practitioners. However, to ensure uniformity of compliance with the best possible standards, it is important that the legislation of regulations governing medical investigation safety be given priority. The legislation must recognize health system specific safety investigation standards with the aim of improving the process. To ensure the investigation of safety standards and compliance of the same every time, it is paramount that the investigating body be independent. The independent body shall investigate adverse events in healthcare organizations; however, the regulations of the investigations will remain under the legislation. To ensure the regulations are effective in establishing a malpractice not solely for punishing, but also for improving practice, the legislation must provide robust regulations (Downie & Llewellyn, 2008).
To develop a comprehensive system management system, the health regulatory body must liaise with other safety regulatory bodies in other industries. This may include the aviation industry which has comprehensive regulations covering safety investigations and who is legally responsible for what. Taking such an approach in the improvement of the healthcare system will avoid the reinvention of the wheel by healthcare professional. Adoption of regulations and policies from other industries will enable the rationalization of the various paths that investigation processes take in the healthcare sector (Hunsley, 2001). Because the regulations have been tested and proven in other industries, the healthcare sector will be in a position to refine them as they develop a clear and consistent standard of practice. The practice will also improve by developing a consistent mechanism for collecting data and a culture of learning from mistake. The implementation of the changes faces several challenges include the high cost of carrying out investigations to collect data and the development of new policies. However, the cost may be reduced if the sector builds on existing safety policies and regulations in other sectors (Burgess, 2008).
Every consumer in the country of New Zealand has the right to receive service that is in compliant with legal, ethical, and professional standards. Earlier investigations were heavily reliant on expert advice from individuals whose professional and competency was not established. Most of the published opinions did not refer to local laws and research to establish professional opinions. The reasoning provided when a breach was established was not clear, which left the reader of the report and the court wondering how the individual reaches these professional opinions. The manner in which the evidence was presented and reached reduced the credibility of the investigations. An example that establishes the inconsistent nature of the investigation is case 97HDC7172. The case concerns a man who received treatment for a buttock abcess. The issue in the case is that, after the incision, the wound was packed with a package inappropriate for the wound (HDC, 2013). This is a clear breach of right four because the man received treatment that was inconsistent with his needs. The man returned to the theater twice to correct the mistake. The commissioner found the doctor guilty of malpractice without seeking external advice from other professions. An investigation of the situation reveals that according to the commissioner, the right dressing for such a wound is gauze; however, there is research-based evidence that assert other types of dressing are more effective than the gauze. If the commissioner had sort professional advice, the outcome of the case might have been different. The case may also have served to inform other practitioners about the new evidence available to facilitate the change of practice for the better (Godbold & McCallin, 2005).
Cases such as the above example are outdated. Currently, professionals practice in an atmosphere that encourages professional opinions to guide service quality. Decision-making is guided by research-based evidence. Evidence based opinions presented by professionals currently contain a considerable amount of information drawn from different sources, including journal articles and literature reviews. This has made the professional opinions a valuable source of valuable information for practitioners seeking to improve their practice (Callaghan & Hunt, 2010). The opinions also have more weight because they have support from information found in other research publications. This also increases the credibility of the investigation process. The opinions are used by the commissioner to send a clear signal to practitioner about the expected standard of practice. These reduce the chances of an adverse event reoccurring (Godbold & McCallin, 2005).
The referral to ethical and legal standards in the opinion reports strengthens the signal sent to the consumers and practitioners that safety standards are regulated by written guidelines. The commissioner uses the investigations to make a recommendation to the practitioners. This is true even in cases in which there is no-breach. The main challenge in the investigation process is the standards of documentation. Poor documentation hampers investigation because there is no record to support the claims. It is important to note that poor record keeping does not always result in a breach of right four. The main question that arises then is how the commissioner decides the standards to be maintained to determine when a breach occurs (Keenan, 2010). The Bolam test provides a baseline for the process; however, it has undergone some improvements since its inception. Regardless of the rules and regulations, the health care provider acting in good faith must give treatment in accordance with his or her medical judgment (Burgess, 2008).
The English case law allows for the judge to question and deviant for finding made by a professional body in light of a practitioners allowance to make the best decision based on his professional judgment. In medical negligence cases, the Bolam test has been criticized for its lack of clear standards of evaluation. Use of peer reviews has been found to be inconclusive because there are many peer reviews presenting different arguments for a single situation. This is especially true in the medical profession where practitioners are concerned about the fate of their peers and the image of the profession. This produces a tendency of overly generous judgment because each recognizes that they may be next in line for the same or different mistake (Skegg and Paterson, 2007). The responsibility of the commissioner is to protect the rights of consumers; however, the current structure of evaluating malpractice leaves many loopholes for the professionals to protect each other. In accordance with its mandate, it is time for the commissioner to review the process of establishing adverse events to ensure a fair trial. The examples presented above make it clear that these are possibilities and indeed they have occurred in which either the consumer or practitioner has received unfair judgment. To ensure the commissioner continues to serve the role of protecting the consumer, it is paramount that the recommendations made in this paper are actualized to the fullest (Skegg and Paterson, 2007).
Conclusion
The examples given in the paper demonstrate that the current safety evaluation system in the healthcare sector is a provider based one. To ensure improved standards of evaluation, it is imperative that the system shift from a provider based to a consumer based one. This would facilitate a realignment of the investigations with the aims of the Act. The collaboration of the safety sector in the healthcare industry with other industries, such as aviation offers a unique chance for restoring public confidence in the health profession. This would provide consumers with assurance that the process of investigation and judgment is fair and the medical practitioners provide services to the best of their ability. The suggestions made in this paper are far reaching and warrant further research to substantiate them. The first step to ensuring that consumers receive the best service is creating an independent safety assurance body that is guided by legislation. The regulations in the legislation must cover the common adverse events known to occur based on past complaints. The regulations must also draw from professional information to ensure they are in line with the practice.


 References
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