GUEST BLOG: Ian Powell – Consequences of hospital maternity systems failure and unsafe staffing levels

The Health and Disability Commissioner Act 1994 is bipartisan (National and Labour) legislation which aims to promote and protect the rights of health and disability services consumers (predominantly patients) in Aotearoa New Zealand.

The Act arose out of the Cartwright Inquiry in the late 1980s which, among other things, highlighted the patient harm that could be caused by failure to respect the importance of informed consent by patients over their treatment.

The Act’s purpose clause requires the:

• promotion and protection of the rights of consumers (this led to the development of an enforceable code of rights);
• facilitation of the fair, simple, speedy, and efficient resolution of complaints; and
• creation of an advocacy service to support consumers navigating the complaints process.

But what it is most known for is the requirement to establish a Health & Disability Commissioner to oversee the investigation of complaints against healthcare and disability providers.

A Commission (HDC) was created to enable these requirements to be met. Over time deputy commissioner positions were also established.

Internal and External Moralities

Health systems are most effective when two ‘moralities’ are aligned – internal and external.

Health systems need both internal and external moralities aligned

‘Internal moralities’ reside within the ethos of health system workforces through what is often referred to as the culture of professionalism; that is, their commitment to and expertise in providing accessible quality patient care.

The spirit of this culture is reinforced by the various colleges and associations that health professionals belong to.

‘External moralities’ define the overall parameters of health systems beginning with legislation. In New Zealand’s health system the Health and Disability Commissioner Act is one of these parameters.

I have discussed the importance of internal and external moralities in a previous post (20 September 2023): Internal and external moralities.

Revealing Health & Disability Commissioner Decision

Health & Disability Commissioner Act an important external morality

I was reminded of the importance of the HDC Act as an external morality in a decision (24 July) over a complaint by Deputy Commissioner Rose Wall (published on 24 November): System failures; unsafe staffing.

The heading of the 7-page decision was ‘System failures result in unsafe staffing levels and inadequate fetal monitoring’. The date of the incident was redacted.

The complaint was from ‘Mr A’. It was about the antenatal care provided to his wife, ‘Mrs A’, at Waitākere Hospital in Auckland. Sadly, Mrs A’s baby passed away in utero and was stillborn. The specialist obstetrician (senior medical officer – SMO) involved was ‘Dr B’ while the midwife was ‘RM C’.

Deputy Commissioner Rose Wall

Among the Deputy Commissioner’s conclusions was:

I am alarmed that Dr B appears to have been dealing with responsibilities beyond one SMO’s capacity such that she may not have been alert or sufficiently engaged in the conversation with RM C to be able to provide appropriate advice or recall that the discussion took place.

Further:

…monitoring should have been repeated overnight, and I am critical that this did not occur. As Dr B was responsible for Mrs A’s care planning and the care plan was inappropriate, in my view Dr B bears some responsibility for this failure. However, I consider this is mitigated by Health NZ’s failure to ensure that Dr B was adequately supported to call in a second SMO, as outlined below.

She also referred to the HDC’s Code of Health and Disability Services Consumers’ Rights (referred to above) and its Health and Disability Services Standards (HDS) document.

As Wall explains the HDS is “…designed to establish safe and reasonable levels of services for consumers, and to reduce the risk to consumers from those services.”

Specifically, in the context of the HDS Standards, she noted that:

…Health NZ was required to ensure that ‘the day-to-day operation of the service is managed in an efficient and effective manner which ensures the provision of timely, appropriate and safe services to consumers’. Further, under Standard 3.6 Health NZ was required to ensure that ‘consumers receive adequate and appropriate services in order to meet their assessed needs and desired outcomes’. Standard 3.6 supports Outcome 3 of the HDS Standards that ‘Consumers participate and receive … services that are planned, coordinated and delivered in a timely and appropriate manner’.

28. It was Health NZ’s responsibility to ensure that sufficient levels of skilled and experienced staff were in attendance to ensure the provision of safe, timely, and competent care.

This led to Deputy Commissioner Wall’s main conclusion:

…I consider that Health NZ failed to ensure that the service provided to Mrs A was managed in an effective manner to ensure the provision of timely, safe, and appropriate care to Mrs A and her baby, in accordance with Mrs A’s assessed needs. As such, I find that Health NZ failed to comply with Standard 2.2 and 3.6 of the HDS Standards, and, accordingly, breached Right 4(2) of the Code.

Right 4(2) states: ‘Every consumer has the right to have services provided that comply with legal, professional, ethical, and other relevant standards.’  

Morality Alignment

Deputy Commissioner Rose Wall’s published decision is more discursive than what I have discussed above. Its scope is wider and considers other relevant issues and complexities.

Nevertheless, her focus on the relationship between systems failure and unsafe staffing, and then adverse outcomes that can arise, is insightful. This focus has not been a common theme of past Commissioner decisions.

However, it is timely to recall that one of the earliest Commissioner decisions was to uphold a complaint from the Christchurch Hospitals Senior Medical Staff Association, following their publication of a document Patients are Dying.

The complaint was about the consequences of a ‘system failure’ (poor managerial leadership) beginning with the disestablishment of experienced nursing positions.

I suspect that health professional staffing shortages are the consequence of wider health system failures. Combined they can contribute to bad clinical outcomes for patients and their families.

Further, I suspect this has been understated perhaps at least since the late 2000s when severe shortages first began to emerge with hospital specialists.

Rising acute hospital admissions means increased health professional fatigue and burnout

Now these shortages have become the ‘new normal’ across the full spectrum of health professionals. The turning point for this shift was when the rate of acute hospital admissions became greater than the rate of population growth; ie, since 2011.

The consequences of this turning point include clinically dangerous delayed diagnosis and treatment, inpatient bed blocking in public hospitals, overcrowded emergency departments, and fatigued and burnt-out health professionals.

Health Minister Simeon Brown: please take note (NZ Herald)

Even with their high level of fatigue and burnout, the internal morality of health professionals is fortunately strong in Aotearoa’s health system.

Also fortunate is that the Health and Disability Act, as one of the systems; external moralities, is aligned it. Hopefully the practice of Commissioners will continue to reflect this more.

But much more important is the need to have a health system political and bureaucratic leadership that doesn’t make the ‘system failures’ that lead to unsafe staffing and consequential patient harm (or worse) in the first place.

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.