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It’s a wrap!

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With Christmas 4 sleeps away, end of year work deadlines are looming; not to mention final shopping to be done, social functions to attend and turkeys to cook.  But stop for a minute, take a deep breath, hold it for 3 seconds and exhale.  Repeat.  Now take a minute to reflect on the year that has almost been, before it’s over.

At Claro, we have witnessed and been actively involved in some significant developments in our legal system when it comes to health law over the past year.  As our gift to you, here are our Christmas crackers relevant to the health sector:

  • Top of the list would have to be the new Health and Safety at Work Act, which came into force on 4 April 2016.  That law imposes stringent changes to health and safety – not only for employees but anyone who could be affected by the work carried out.  With its aim being to reduce the number of people killed or hurt at work, the law says you need to do what’s “reasonably practicable” to manage health and safety risks at work and in fact wherever the work is undertaken.  It’s all about taking responsibility for what you can control.  And that responsibility, and in turn liability, is now broad – not only is it on the person conducting a business or undertaking, but on officers of the business (such as directors and even board members) who must exercise due diligence.  The stakes are higher than ever now too, as penalties have increased for offences.
  • The right to smoke while a patient in hospital has been a hot issue this year.  Last month, the Supreme Court considered whether the smoke free policy of Waitemata District Health Board (in particular a smoking ban for mental health units) is lawful.  Two psychiatric patients and a former nurse initially challenged the ban, saying it was a breach of human rights to be effectively forced to stop smoking and a freedom had been taken away from them.  The Court of Appeal dismissed the appeal and supported the policy, saying it was addressing the need to reduce both the incidence of smoking – particularly in the mental health sector – and exposure to second-hand smoke.  The policy was also found not to discriminate against any detained psychiatric patients but rather applied to all people on the WDHB premises.  The final say now rests with the Supreme Court so watch this space!  Whatever the decision, it will have ramifications on our ever growing smoke free environment – and more broadly on how DHBs go about setting policies.
  • Fluoridation may soon be coming to a DHB near you.  In April 2016 the Government signaled its intention to make DHBs, rather than local authorities, responsible for deciding whether to fluoridate community drinking water supplies. The move saw fluoridation become a big-ticket item in the September 2016 local government elections; with anti-fluoride DHB candidates standing up and down country.  Now the Government has introduced a Bill which will see fluoridation come into sharper focus in 2017.  If passed, it is possible that responsibility for fluoridation decisions will devolve to DHBs as soon as mid-2018 – a move that will no doubt be met with a sigh of relief from local councils but with a degree of trepidation from DHBs.
  • Complaints against health professionals are on the rise.  In the 2015/16 year the Health and Disability Commissioner received and closed its highest ever number of complaints:  1,958 complaints were received, 2,007 complaints were resolved and 61 formal investigations resulted in breach opinions.   These complaints related primarily to care and treatment; with inadequate treatment and misdiagnosis the most common issues complained about.  Complaints about communication also continue to feature.  As the Commissioner himself has acknowledged, these trends continue to highlight the importance of getting the basics right — read the notes, ask the questions, talk with the consumer.
  • Practitioners continue to be held to account for engaging in the type of conduct all health professionals ought to know is not acceptable.  Entering into sexual relationships with patients has been a theme – some resulting in charges being laid before the Health Practitioners Disciplinary Tribunal.  Cases involving breaches of privacy involving accessing the records of patients without legitimate reason continue to appear.  The regulators will continue to come down hard on these matters.  Such (mis)conduct also has significant implications for employers.  With personnel constantly changing, it’s a good reminder of the need to ensure it is made very clear to all health professionals the standards they are expected to meet.
  • Unfair Contract Terms came to the fore for the Aged Care sector this year with the Commerce Commission indicating that it would be looking closely at whether admission agreements for rest homes and retirement village contracts contained unfair terms.  Such wholesale agreements are usually ‘pro-forma’ with potential residents having very little wriggle room, let alone any scope for meaningful negotiation.  If the Commerce Commission deems any term in these agreements to be unfair, then it can ask a Court to declare that the term is unfair, rendering it unenforceable.  For those in the Aged Care sector, early 2017 will be a good time for rest home and retirement village operators to ensure their contracts do not contain terms that could be held “unfair”.
  • 2016 heralded changes to the Coroners Act, with the aim of improving the quality, consistency and timeliness of coronial investigations and decision making; and ultimately reducing the impact on families of people who have died.  The role of coroners has been clarified, with the aim of reducing duplication between coroners and other authorities that investigate deaths and accidents; as well as the recommendations they do make to prevent future deaths more focused and relevant.  The media can also now report a death as a “suspected suicide” before an inquest is concluded, if the facts support that conclusion.  The law change also removed the requirement for coroners to hold an inquest if a person died in official care or custody – providing coroners instead with a discretion to do so.
  • The right to know – an elementary but critical legal right to be able to see information that is about you.  In 2016, the value of a personal right to access information was stronger than ever, as agencies accumulate ever-richer information stores and share that data more widely.  There is a real need to bring the current law up to date to better respond to a range of technology and other changes in the last twenty years.  This issue will be one to watch in 2017 with a proposed Bill to be introduced to Parliament.  
  • Bullying and bad behaviour of health professionals in the operating theatre and in hospital settings more broadly has received a lot of attention this year.  Changes to the health and safety law have reinforced that tolerance for such behaviour is not acceptable and perpetrators will be in the firing line.  Concerns have escalated to a high level with the Royal Australasian College of Surgeons issuing clear statements to manage this serious misbehaviour.  We think there will be more to come on this issue in 2017.
  • Last but not least, there have been some noteworthy developments in the public sector with implications for DHB members.  In June 2016, the Ministry of Health attempted to tackle the old chestnut of conflicts of interest in the health and disability sector, publishing guidelines for DHB members intended to be an ‘everyday handbook’ for managing conflicts of interest and to  “maintain public confidence and integrity in the health sector”.  In the procurement space, the Court of Appeal has restored order to the world of government contracting, dismissing the Problem Gambling Foundation’s challenge to the Ministry of Health’s procurement process for problem gambling services.  The decision should provide comfort for DHBs and other public sector agencies that judicial review of procurement decisions will usually only be available on a very narrow basis.  The Ombudsman’s office and the Auditor-General remain as watchdogs, however, to ensure that the discharge of public powers and duties is taken with integrity and competence.


So it’s a wrap after an action-packed, eventful and rewarding year – with 2017 shaping up to be no different!  We wish you all a wonderful festive season and relaxing summer break. 

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