Primary care is the backbone of our health system, with all New Zealanders likely to seek advice from primary care providers on many occasions throughout their lives. General practitioners, in particular, engage with all corners of the health system and are often the point at which health policy meets the population. Primary Health Organisations provide a unique and potentially creative mechanism for facilitating the provision of primary health services in their communities. This breadth and diversity in the primary care sector makes it all the more important for primary care funders and providers to understand and manage legal risk proactively.
We have been working with PHOs, general practices and other primary care providers for many years. We advise on policies, process and clinical documentation, professional responsibility and obligations around the transfer of care. Patient privacy presents challenges in primary care and we advise on collection, use and disclosure of information. We understand the legal framework around the provision of health and disability services as well as the funding, policy and practice context. We regularly assist with responses to complaints and investigations. We have expertise in dispute resolution, and represent clients in investigation and legal processes, including at coroners’ inquests and in dealings with the Health and Disability Commissioner.
We advise primary care providers on:
- Corporate and clinical governance
- Privacy and information management
- Contracts, procurement and business advisory
- Employment issues
- Complaints and investigations
- Medical law and treatment issues
- Compensation and claims for damages
- Mental health
- Pharmaceuticals, medicines and medical devices
Examples of work done by Claro lawyers
Contractual dispute about the extent of general practitioners’ obligations to provide access to primary health services under the back-to-back general medical practice agreement. We acted for a DHB in a High Court claim by a group of GPs who alleged that the DHB and an independent practitioner association were in breach of contract for deducting capitation funding after the GPs refused to provide after-hours services. The dispute arose following a reclassification of the GPs’ practices from rural to non-rural. One of the key issues for the Court was whether the GPs’ reliance on a telephone triage service and the DHB’s emergency department complied with the’ contractual obligation to provide access to First Level Services. The High Court found in favour of the DHB. The decision can be found here.
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 its obligations under its contract with the DHB, and on the steps it needed to take to satisfy itself that patient care had not been compromised. Immediate steps were taken to ensure no patients had suffered.
Primary care services agreements relating to delivery of primary care services by general practices in a range of contexts, including where the client was a PHO, and directly between a DHB and local general practices (in the context of there being no PHO in the district). We have in-depth knowledge of the national PHO services agreement, back-to-back agreements and the national systems for service delivery, claims and payment.
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; a breakdown in the relationship between employer and employee; and personal grievances. We attend mediations and, if necessary, represent clients before the Employment Relations Authority or courts.
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 responsible authority and to other hospitals or facilities where the employee works. Employment law requirements can clash in these cases with overriding obligations to act fast to protect patient safety. We have been involved in a number of cases involving such issues that have resulted in personal grievances being raised and legal proceedings issued.
A GP practice in a dispute with an exiting partner. We advised the residual partners on a range of issues relating to the acrimonious departure of one GP from the practice. Issues included patient enrolment/capitation, shareholding in the practice company, director rights/obligations and clinical practice matters such as the transfer of clinical records. The dispute was successfully resolved at mediation.
Drafting clinical governance, legal compliance and risk management policies, procedures and guidelines so that these are easy to understand for staff across the organisation, and complementing those policies, procedures and guidelines by the development of information sheets and checklists, which set out, in simple, non-legalistic terms, key principles.
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.