GUEST BLOG: Ian Powell – Non-Disclosure Agreements in Health New Zealand – an oxymoron!

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Oxymoron is one of the more sharpest and cutting words in the English vocabulary. It is a figure of speech that juxtaposes concepts with opposite meanings within a word or in a phrase that is a self-contradiction.

It can be used as a rhetorical device in order to illustrate a point to communicate and reveal a paradox. “Old news’ and “deafening silence” are simple examples.

In part because of their complexity and, in part, when decision-making gets driven by ideology at the expense of values and pragmatism, universal public health systems can be prone to incisive oxymorons. Aotearoa New Zealand is no exception.

Culture and health systems effectiveness

The most effective health systems are those where the prevailing leadership and workforce culture is relational rather than contractual.

Relational culture critical for health system performance

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Relational recognises that in a highly complex, labour intensive and integrated system (within hospitals; within communities; and between communities and hospitals), relationships based on engagement are critical for high performance.

This culture further recognises that health professionals are the prime source of expertise and experience in quality improvement, innovation and health system improvement.

Contractualism, in contrast, both fails to recognise and devalues relational culture; at least in practice if not word.

Its ‘morality’, if that is an apt word to use, comes from a limiting formal agreement based on an unequal power relationship or declared statement.

This includes rigid budgetary settings that that narrow down the scope of the system to the extent that healthcare access and quality and health professional wellbeing are relegated to a lesser importance (again more in practice than words).

Broadly speaking the more relational the culture of a health system, the more likely it is to be a better performing system in the context of health access, quality, and outcomes.

These, in turn, lead to improved productivity and a better return for the health dollar. Conversely, the more contractual the system culture, the more the opposite the results.

The high point of New Zealand’s health system having a relational culture was, at least in my experience, in the first decade since the formation of district health boards (ie, the 2000s).

The high point of the prevalence of a contractualism culture was in the 1990s with the ideological endeavour to run the health system on a competitive business model.

Contractualism has incrementally increased since then; today it has become a fully deliberate high point.

Enter Non-Disclosure Agreements

Neutrally expressed and without context, a Non-Disclosure Agreement (NDA) is a legally binding agreement put in place when two or more parties will be sharing confidential information.

They wish to ensure that such information remains confidential and is not disclosed, published or disseminated to other parties.

Andrea Vance exposes ‘gag orders’

NDAs have been unheard of in my recollection of our health system. In the wider public service their use has been sparing.

That is, until Stuff National Political Editor Andrea Vance exposed their use by Health New Zealand (Te Whatu Ora) with a 9 September paywalled piece published by The Post: Health NZ staff required to sign gag orders over budget pressure.

She reported that “Almost 70 Health New Zealand staff were required to sign gag orders as the agency buckled under financial pressure.”

Vance’s breaking story was quickly followed up at midday by Radio New Zealand Political Editor Jo Moir who described it as a “surge”: NDA surge in Health NZ.

The 67 staff required to sign these documents included managers, human resource advisors and administration staff.

Implications of NDAs in Te Whatu Ora

Margie Apa defends use of NDAs

Te Whatu Ora Chief Executive Margie Apa’s defence came down to the need for confidentiality over “recent financial pressures….and dealing with Budget-sensitive information.”

Subsequently she argued that Health New Zealand was a new organisation as further justification for this NDA “surge”.

Meanwhile Health Minister Shane Reti ducked for cover advising Radio New Zealand that, while NDAs should be applied appropriately, the matter was operational.

Again, on 9 September, Radio New Zealand followed the issue up on its early evening programme, Checkpoint: Scary gagging connotations.

Employment lawyer Barbara Bucket was interviewed. She described this new practice as scary, including its gagging connotation.

She also questioned the legal status of these NDAs observing that many if not all of these pressured staff would have had confidentiality obligations in their employment agreements.

Further, NDAs could not trump employee rights under current employment and whistleblowing legislation.

Health Select Committee

Nine days later, both Commissioner Lester Levy and Margie Apa appeared before Parliament’s Health Select Committee. This was already scheduled well before Andrea Vance’s breaking story but inevitably the subject came up.

Former Health Minister Ayesha Verrall described the use of NDAs as “North Korean”

As reported in The Post by Stuff health reporter Rachel Thomas (paywalled; 18 September): Health NZ employment practice “North Korean”.

“North Korean” was the tag given to Health New Zealand’s new employment practice by former Health Minister Ayesha Verrall. Allowing for some hyperbole, it was not far off the mark.

But what was also revealed (although I was aware of it in advance) was that the Commissioner was uncomfortable. Albeit mildly, Levy publicly and explicitly disassociated himself from his chief executive’s decision.

Despite being clearly on the contractualism side of the culture spectrum, privately he is known to be very unhappy with the use of NDAs. Bad optics to say the least.

Bad decision (and bad advice?)

In fact, the introduction of NDAs predated Levy’s initial appointment as HNZ Chair by several months. Margie Apa introduced the practice nearly a year ago.

Her justification for NDAs is weak. Although Te Whatu Ora is a new organisation, overwhelmingly its staff are not.

The organisation was created out of a merger of the funding and planning section of the Ministry of Health and the entire staff of the former district health boards.

They are as fully aware of the importance of confidentiality, both clinical and financial, as their chief executive.

It appears that the idea of NDAs was based on internal human resource advice. Certainly HR has been recognised by many as a weak spot within Health New Zealand.

However, if it was based on this advice it is still no excuse. A chief executive with Apa’s experience, including in the public service, should be able to differentiate between good and bad advice.

Commissioner needs rid HNZ of its oxymoron

NDAs in health systems, and no doubt other sectors also, are a poor employment practice. They are a form of intimidation. They are punitive. As Barbara Bucket commented, these NDAs are scary and designed to gag.

NDAs have no place in a health system based on a relational culture. They can be consistent with one based on a contractualism culture but at the far end of that spectrum.

Commissioner Levy can and should sort this ‘health system and NDAs’ oxymoron

It is good that Commissioner Levy disagrees with Health New Zealand’s oxymoron. But, if he does not want to get entangled or otherwise compromised by it, he should require that the practice cease and existing NDAs terminated.

He has the power; time to exercise it.

 

Ian Powell was Executive Director of the Association of Salaried Medical Specialists, the professional union representing senior doctors and dentists in New Zealand, for over 30 years, until December 2019. He is now a health systems, labour market, and political commentator living in the small river estuary community of Otaihanga (the place by the tide). First published at Otaihanga Second Opinion

16 COMMENTS

  1. Put it this way: how comfortable would anyone be living next to a nuclear reactor whose workers had been forced to sign NDAs?

  2. As always, a good post @Ian.
    The distinction between NDAs and gagging is important in a democracy. NDAs where life and the physical and mental well being of parties might be compromised. Gagging more now increasingly used to prevent the managerialist and incompetent muppetry that goes on. It merely serves as an enabler, and so that muppets can go on to the next gig where they’ll feed at the trough.
    Where possible, and if you can afford it – avoid the gagging wherever possible. Many of these incompetents can be quite vindictive if they see their silly little egos being ridiculed.

  3. Do we think that Levy knew about the NDA’s before the exposure? Of course he did. This Government, and by extension Health NZ, are acting ‘North Korean’ to prevent discussion and opposition to their radical privatisation policies. If you were to catalog the lies (budgets/financial situation), deceit, obfuscation, collusion of this Government it exposes their corruption. It is clear that the intention is to make us a US controlled (and owned) state in the South Pacific, and they are working on the one obstacle holding this back- Te Tiriti o Waitangi. This Government is seriously anti New Zealand. Period.

  4. Within the Te Whatu Ora organisation I work, 9 administrators put forward their names for redundancies when this was advanced by Margie Apa. The head of administration declined all applicants due to admin being understaffed by six. The committee headed by Lester Levy overruled the head of admin and the Lest Levy appointed committee stated they will take the redundancy offers. The extra work load will come onto and already understaffed work force.
    The latest from Te Whatu Ora is pushing staff to take 3 weeks leave at Christmas…

    https://www.rnz.co.nz/news/national/530503/health-new-zealand-staff-told-they-must-take-three-weeks-leave-over-christmas

    Given parents are required to support their children throughout the year through school holidays, one can only presume the governments edict is one of an authoritarian regime.
    Fortunately I’m not held to a NDA so can voice what is actually happening within health.

  5. “It is clear that the intention is to make us a US controlled (and owned) state in the South Pacific, and they are working on the one obstacle holding this back- Te Tiriti o Waitangi. This Government is seriously anti New Zealand. Period.”

    Exactly, maori soverignity is effectively kiwi soverignity. Act want the treaty, nz’s constitutional basis gone so they can implement an Atlas Constitution.

  6. NDA’s: one of slime-bag Trump’s favourite tools.

    They should have no place in any public service or honest organisation.

  7. “NDA’s: one of slime-bag Trump’s favourite tools.”
    Exactly! Otherwise known as the coward’s toolkit. As above, the only valid reasons for an NDA is to preserve life and well being, or national security – GENUINELY. These arseholes regularly undermine OIAs and use them to cover their incompetence and muppetry.
    It’s almost worth giving them their knighthoods on the proviso they’re sent on their merry way NEVER to be allowed near public service positions, or ‘advisory’ roles in future. Let ’em try their luck offshore if necessary. I’d help pay a one-way fare.
    Things are bad. There’ll be not much left of lil ‘ole Nuzull that punches above its weight if this shit continues.
    Hopefully the ;collective left’ and/or progressives are getting a few bottom lines together. And that they’re doing what the hard right have done – publish the pallatable policies, and keep quiet about those things that need to be done, but which might not be that popular.

  8. But AO/NZ is one entire NDA.
    The biggest problem AO/NZ has is that it must enduringly hide its historic, and contemporary wealth from we normal, trusting, human lot.
    We can never be allowed to know just how literally, actually factually wealthy we in fact are or at least were before the billionaires, multi-millionaires and decades of being fleeced by foreign banker scum which has left many of us scrambling for a vacant door way to sleep in.
    Our AO/NZ has had vast wealth slid sideways into privateer pocketses from about1882 and that must have the NDA’d the fuck out of it
    From the moment we could ship perishable foods to the UK and beyond from 1882 at all started to go pear-shaped and Pete Tonged.
    The thieving, corrupt, greedy, scum who stole off with our farmers produce could never allow the knowledge of what the thieving, corrupt, greedy, scum were selling our farmers goods for once it arrived in the UK hence the dawn of the NDA.
    The Dunedin was the first ship to successfully transport a full cargo of refrigerated meat from New Zealand to England. In this capacity, it provided the impetus to develop the capacity of New Zealand as a major provider of agricultural exports, notwithstanding its remoteness from most markets. Wikipedia
    This historical importance of the Dunedin is due to this meat shipment, which proved refrigerated meat could be exported long distances, so establishing the New Zealand meat export industry, and transforming agriculture in New Zealand and Australia.
    On 15 February 1882, the Dunedin sailed with 4331 mutton, 598 lamb and 22 pig carcasses, 250 kegs of butter, hare, pheasant, turkey, chicken and 2226 sheep tongues. Sparks from the compressor’s boiler created a fire hazard. When the vessel became becalmed in the tropics, crew noticed that the cold air in the hold was not circulating properly. To save his historic cargo, Captain John Whitson crawled inside and sawed extra air holes, almost freezing to death in the process. Crew members managed to pull him out by a rope and resuscitated him.[4] The Dunedin arrived in London 98 days after setting sail.
    So yeah/Nah. NDA’s are in our blood to the point of us not really ever knowing exactly what the fuck it is that’s actually going on. 14 multi-billionaires, 3118 multi-millionaires each with a $50 million dollar minimum and four now Australian owned banksters NDA-ing us at a rate of $180.00 a second net 24/7/365 and lets remain ever mindful of our 600,000 people living in poverty with their 200,000 kids and then there’s them cute quaint homeless people, mostly Maori from what I’ve observed living in the crooked streets of our crooked little cities where people act crooked so the poor can’t get down.
    Evilnine Crooked ft. Aesop Rock
    https://youtu.be/U6dxYka2tRk?feature=shared

  9. Those interested to read of what a health battle can be like with the patient struggling on two fronts; with illness and trying to rise above irrational medical care, or lack, at the same time.

    Death Comes For Peter Pan by Joan Brady 1997
    SALES POINTS: * 1993 Whitbread winner and a hugely prestigious author.
    * Beautifully written, not a hint of self pity, not overwrought but brutal. . . shocking in its truth, the casualness of its cruelty, it should be read with great care – Dirkk Bogarde.

    THE BOOK; Alice Kessleris a fighter and when she is told that her husband only has a few months left to live, she refuses to accept it. Instead Alice searches relentlessly for a doctor willing to offer a better prognosis and when she fails to find one in England, she takes her beloved Peter back to where they came from. America, the land of miracles. But Alice soon discovers that their fight is far from over. Death Comes for Peter Pan is a turbulent and unpredictable love story – the story of a young woman’s fight for her husband’s dignity and a powerful indictment of the politics that rule medicine today.
    https://www.penguin.com.au/books/death-comes-for-peter-pan-9781446466445

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