Clarifying health professionals’ educational needs

Rachael Heslop

It’s been the best part of a year since we launched Clarify to help health professionals better understand the law relating to their professional practices.  In that time we’ve learned much about where the biggest areas of need are – and we’d like to share them with you. Foremost among them is informed consent, and familiarising new professionals with the way the sector works.

There is a skill gap in informed consent

Health professionals continue to struggle with how to obtain genuine informed consent.  In 2017, a Health and Disability Commissioner (HDC) report on complaints about DHBs noted that 26% of all complaints about DHBs received by the HDC in the relevant period included an element of informed consent.  In 11.5% of all cases, informed consent was named as the primary issue. Results were reported as similar in the previous period’s report.

This suggests a problematic gap in skill – or knowledge – about the principles of informed consent: when is a patient competent to make a decision? How much information needs to be given to a patient about the proposed treatment? Is it OK to delegate obtaining consent to a junior or to another health professional?

And just in case you’re thinking that “legal” skill is less important than “clinical” skill in the grand scheme of What Health Professionals Need To Know – don’t forget that there are real risks to patients when their care isn’t managed in line with proper legal process.

In a widely reported 2008 HDC opinion, a surgeon failed to obtain informed consent from a patient in relation to the risks of the procedure he was undergoing.   Initially the patient’s risk of death within 90 days of the surgery had been 1%, but when blood test results revealed complications with his liver, that risk increased to around 20%.  The patient had already been anaesthetised when the blood test results came in, but the surgeon chose not to wake him to advise him of the increased risk and ask if he wanted to proceed.  Complications did arise, and the patient died following his surgery.

Clearly, failure to obtain informed consent doesn’t always end so catastrophically, but if you think about the thousands of interactions throughout New Zealand each day between health professionals and patients, it’s easy to see just how many opportunities there are for busy health professionals to rush the consent process and potentially put patients at risk.

Employers also need to be alive to the risks.  If their employees aren’t up with the play, or the systems aren’t in place to support them and things go wrong, then the employer risks a finding of vicarious liability in the event of a complaint to the HDC.

Some health professionals don’t understand their place in the system

If you’ve ever packed up and moved overseas, you’ll know the challenges –  finding somewhere to live in a housing market you don’t know and learning how to do what was second nature at home – from posting parcels home to mastering the public transport system and building a new network of friends.  At the same time, you’re learning a new job; getting a feel for new colleagues and workplace culture, and – if you’re a health worker – getting lost in the labyrinthine corridors of a large and sprawling hospital. In some cases you’ll also be speaking in a language other than your native tongue.

In short, you’re at risk of culture shock.  That same “culture shock” probably exists to some extent when you change jobs, or when, as a new graduate, you suddenly find yourself having to sink or swim, with new responsibilities and accountabilities in a busy clinical environment.

A 2018 study found that internationally, foreign-born workers are suffering from acculturation and occupational stress.  Last year, more than 2,000 overseas trained doctors and nurses were registered in New Zealand.   Similarly, around 2,500 New Zealand trained doctors and nurses registered for the first time and started their professional careers in New Zealand.

Any number of those doctors and nurses (as well as new practitioners in other professions) are likely to have experienced some of the culture shock and related stress we refer to above.  We don’t need to go into the details of how stress can manifest in the workplace – lack of concentration, low energy, inability to make decisions, exhaustion; any one of these symptoms, in the context of the health sector, can increase risk to patients.

Orientating health professionals who are new to practice in New Zealand will help them find their feet more quickly – resulting in safer, more confident workers who are a better long term investment for the sector.

What we’ve seen from Clarify uptake so far backs that up. Of our six modules, Overview of the NZ Health Sector has been the most popular.  That tells us that there are many health professionals looking for help in understanding their place in the system.

When you’ve been working in the sector for years, it’s easy to forget just how unique the New Zealand health system is – and that some key concepts in the management and funding of health issues can take some getting used to.  New health professionals need to come to grips with (for example) ACC’s unique no-fault compensation scheme; the role of the HDC as the watchdog of health and disability consumers’ rights; and, if they’re regulated under the Health Practitioners Competence Assurance Act, they need to learn what obligations they have to their responsible authority, and to members of the public.  It’s a lot to take in, and we shouldn’t underestimate just how daunting that might feel.

How can we help?

Here at Claro, we’ve always subscribed to the “fence at the top of the cliff” approach.  We think it’s best to equip people with the tools they need to do their job well, rather than help them pick up the pieces if it all goes wrong.

Clarify is a natural extension of that philosophy.  Health professionals who are unsure of their legal or ethical obligations can access Clarify for help.  An hour later, they can get up from their seat with greater confidence, and a certificate to prove they now have the knowledge to practise with more skill in the given area.

Similarly, Clarify’s certification process can assure employers that their employees have up to date training in key aspects of health law.  This assurance reduces the employer’s risk of vicarious liability, helps employees do their jobs with confidence, and, most importantly, protects patients.

Clarify modules include:

  • Overview of the Health Sector
  • The Law and Informed Consent
  • Health Information Privacy
  • Obligations of Health Practitioners under the HPCAA
  • Treating Incompetent Patients
  • Maintaining Professional Boundaries

 At $55 per module (online purchase price) Clarify is a simple, cost-effective way to help individuals and employers start addressing these issues. For employers looking for bulk enrolments in one or more modules for your staff, please contact us at clarify@clarify.co.nz to discuss options.

Click here to go to our Clarify website.


For further information contact Rachael Heslop.

Rachael Heslop
DDI:  04 550 5727
Email:  rachael.heslop@clarolaw.co.nz

This article is intended to provide a summary of the subject covered only and is necessarily general and brief. It is not intended as legal advice and nothing in the article should be relied upon without getting specific professional advice.