Private specialist practice is an integral part of the New Zealand health sector. Specialists operate their businesses in a competitive environment which, at the same time, is subject to a unique and demanding body of regulation. From business structure and competition law to patient communication and dispute resolution, early, targeted, legal support pays dividends in private practice.
Claro’s lawyers have a wide range of experience in the health sector. We regularly advise health providers and provider groups on documentation, consent processes and other areas of clinical governance that are essential to sound practice. It is important that all involved in private practice, whether patient, specialist or staff, understand where professional, legal and financial responsibilities lie. We advise on the implications of business structure, roles and responsibilities, procurement processes and employment matters. When problems arise in the form of conflict, complaint or investigation we are fully equipped to assist. Our lawyers routinely advise on dispute resolution and complaint responses, with a focus on early intervention and constructive solutions.
We regularly advise clinical specialist groups on:
- Clinical and corporate governance
- Employment relationships
- Complaints and investigations
- Information systems and privacy
- Contracts and business advisory
- Medical law and treatment issues
- Compensation and claims for damages
- Pharmaceuticals, medicines and medical devices.
Examples of work done by Claro lawyers
Disclosure of information protected by a quality assurance activity without justification. specialist groups have a Protected Quality Assurance Activity Notice (PQAA). We have advised providers in situations where there has been inadvertent disclosure of protected information outside of the PQAA. We have also advised providers where there has been an incorrect understanding that the PQAA provisions apply. It is recommended that providers have clear policies and procedures for managing PQAA information to minimise the risk of breaching the confidentiality provisions that apply to PQAA information. Providers who hold PQAAs should also be aware that reports provided to the Ministry of Health are amenable to disclosure under the Official Information Act.
Pricing of surgical procedures under health insurance arrangements. Pressure on health insurers has resulted in changes to the way health insurers reach agreement with individual doctors, specialist groups and private hospitals. We have advised on competition law issues relating to the setting of prices and structural issues to protect specialist groups from criticism while maximising efficiencies.
Review of and advice on proposed information sharing frameworks, including the sharing of information across multiple agencies, and the obligations on all agencies with respect to that information.
Investigation into issues relating to the follow up of patient results in a general practice setting. We advised a Primary Health Organisation (PHO) on its obligations where concerns were held about the management of patient referrals at one of the PHO’s general practices. Processes for acting on clinical results at the practice had been under pressure, in part because of the departure of senior doctors and a succession of locums. We advised the PHO on what steps it needed to take to satisfy itself that patient care had not been compromised, and the PHO’s obligations under its contract with the DHB. Immediate steps were taken to ensure no patients had suffered.
Resolution of employment relationship problems and personal grievances. We advise health sector employers on the management of issues relating to employees’ health, competence and conduct; bullying and stress; breakdowns in the relationship between employers and employees; and personal grievances. We attend mediations and, if necessary, represent clients before the Employment Relations Authority or courts.
Development of clinical governance, legal compliance and risk management policies, procedures and guidelines so that these are easy to understand for staff across the organisation. We have complemented those policies, procedures and guidelines by the development of information sheets and checklists, which set out key principles in simple, non-legalistic terms.
Competence, health and conduct issues that affect the safety of an employee’s services. We regularly advise public and private sector providers on their obligations to act where concerns are identified about the safety of services; including the process to follow and notification obligations to the relevant regulatory authority, and to other hospitals or facilities where the employee works.
Health and Safety in Employment Act investigations and prosecutions. We have acted for both public and private sector organisations facing investigations and prosecutions relating to breaches of the Health and Safety in Employment Act. We have advised organisations and boards on their obligations under the legislation and the need to comply with guidelines such as the Institute of Directors guide Good Governance Practices Guideline for Managing Health and Safety Risks. We have advised public and private health providers on when patient falls and injuries resulting from clinical incidents require reporting under the Health and Safety in Employment Act.
Credentialing of health professionals. The obligations on employers of health professionals to ‘credential’ their employees have increased significantly over the last decade. No longer is it acceptable merely to check that the employee has a current practising certificate or for a quick reference check to be undertaken. There are increasingly clear requirements for credentialing all health professionals, in both the public and private sector, both before employment and on a continuing basis. We have been involved in all aspects of the credentialing process; including acting in cases where there is the difficult interface between credentialing and managing poor performance. Our lawyers were involved in the Dr Hasil case at Whanganui DHB – the Health and Disability Commissioner’s report into that case remains a leading guide to what is required when credentialing senior doctors. The case can be accessed here.
Prescribing medicines remotely by text or email. The Medicines Act, Medicines Regulations and Misuse of Drugs Act contain important requirements relating to the prescription only medications and controlled drugs. We have advised on these various obligations, including whether such medications can be prescribed by text, SMS or email. We have also advised on whether text, SMS or emails can be used to communicate a ‘verbal order’ for prescription only medications and controlled drugs.
Contractual dispute about the extent of general practitioners’ obligation to provide access to primary health services under the back-to-back general medical practice agreement. We acted for South Canterbury DHB in a High Court claim brought by a group of general practitioners who alleged that the DHB and an independent practitioner association were in breach of contract for deducting capitation funding following the GPs’ refusal to provide after-hours medical services to patients. The dispute arose following a reclassification of the GPs’ practices from rural to non-rural. Amongst other things, the issue for the Court was whether the GPs reliance on a telephone triage service and the DHB’s hospital emergency department amounted to compliance with the GPs’ contractual obligation to provide access to First Level Services. The High Court found in favour of the DHB and the independent practitioner association. The decision can be found here.