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

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

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