HEALTH LAW AND POLICY

Assessment Two

Introduction

Being a patient under the care of a doctor is probably the only occasion where an individual unconditionally places their welfare in the hands of another.  However, not everything goes according to plan - sometimes the unexpected happens and things go wrong.  It is often assumed that complaints to some form of statutory Health Ombudsman are an effective mechanism not only to resolve individuals’ complaints, but also to improve the overall quality of health care (Paterson, 2001).

In this assignment I will discuss the laws and legislations that are relevant to Case 00HDC00835. Secondly, I will examine the impact of law and the accountability of Health Practitioners. Thirdly, I will investigate the legal issues raised from the complaints of the patient, and the patient’s family.   I will pay attention to some of the issues that frequently challenge the elderly population.  I will also attempt to identify some policy considerations that are specific to this case. Finally, I will form my own opinion of whether decisions made by the Health and Disability Commissioner struck a fair equilibrium.  Other comments will be raised for examination.

Law and the Tensions that Arise

The law of torts is defined as a “civil wrong”.  It is concerned with those situations where the conduct of one person causes harm to another (Todd, 1997).  A primary function of the law of torts - in particular the tort of negligence - is to compensate for damage caused by personal injury (Todd, 1997).

Health Practitioners in New Zealand are largely protected from the “no fault” Accident Compensation Scheme (ACC), which reduces practitioners chances of being sued in court.  However, a patients’ ability to sue a practitioner may also be limited by this scheme (Johnson, 2004). Just because ACC is available, does not mean it can be readily used, therefore those not belonging to ACC may become vulnerable. It may seem unfair - but that is how the Act is framed, and although proposals for change have been put forward, ACC has continued to raise boundary issues (Health & Disability Commissioner, 2004).  

The Health and Disability Commissioner is the primary vehicle for dealing with complaints about any health and disability service provider in New Zealand, in other words, they promote and protect the rights of consumers (patients) and to facilitate fair, simple, speedy and competent resolution of complaints.  The Health and Disability Commissioner Act 1994 protects the rights of health consumers and disability service consumers.  Similarly, the purpose of the Health and Disability Services (Safety) Act 2001, is to promote the safe provision of health and disability services, and establishment of consistent and reasonable standards to the public, whilst encouraging providers of these services to take responsibility for providing a safe environment for there patients.

The Code of Health and Disability Services Consumers’ Rights (CHDSCR) introduces 10 step guides for every health provider to inform consumers of their rights; and for patients to exercise their rights, e.g. the right to be treated with respect; to be free from discrimination; and the right to complain (Johnson, 2004).  Rights 6 and 7 are discussed later in the essay.

The purpose of the Health and Disability Services (Safety) Act 2001, is to promote the safe provision of health and disability services, and establishment of consistent and reasonable standards to the public, whilst encouraging providers of these services to take responsibility for providing a safe environment for there patients (Johnson, 2004).

Many Acts and Regulations impact on medical practice standards.  The most significant is the Health Practitioners Competence Assurance Act (2003), which comes into full force in September 2004.  The principal purpose of HPCA is to protect the health and safety of the public by providing ways to ensure that health practitioners are competent and fit to practice their professions.  The Act was mainly a response to very recent public examples of medical error (like the Bottrill case), and also a response to demands from lobbyists to make health professionals more accountable and respect health care consumers’ rights (NZ Nurses Organisation, 2004).  The HPCA Act is an attempt to streamline some of the bureaucratic processes by having main health professional groups under one piece of legislation, e.g. a need to update legislation like the 1977 Nurses’ Act (NZ Nurses Organisation, 2004).

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Norrie (as cited in Grigg-Seill & Ireland, 1992) argues that the philosophical individuality that lies at the heart of criminal law is flawed and limited, and that the result is distinguished by unreason and lack of principle of that legal policy.  He also says that the key to understanding is to expect continuous tensions and illogic, and not to look for rationality and coherence (Norrie, 1992).  


In Criminal Law there is a maxim - “the act does not make a person guilty unless his or her mind is guilty” (Diesfeld, 2004; Lecture Notes). If for example an ...

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