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Insights

The many ways you can find yourself wanting defence support


The best way to find out how good your insurance is, is to make a claim – but who wants to find out that way?



It is tempting to be complacent over medical indemnity cover by believing that the Accident Compensation Corporation (ACC) reduces exposure to big claims. In reality reputation jeopardy can be a bigger risk than a damages claim and damages are still claimable in certain types of cases in NZ. In our country health professionals can find themselves answering for the sequelae of one event in over 10 different processes and over many years. So having the right cover and support is essential.


This is one of the many reasons why it is so important for health professionals to pay close attention to the quality of their medical indemnity insurance.


Figures released by the Health and Disability Commission (HDC) show that in 2018, 22 percent of doctors had had a complaint brought against them, up 33 percent in just seven years.


The Human Rights Review Tribunal and the Privacy Act provide mechanisms in which a Health Practitioner may face a damages claim of up to $350,000.


Medical indemnity insurance is a requirement for many health professionals in New Zealand. Through Aon and NZI, Medicus offers a product that provides certainty of cover through an insurance contract supported by a discretionary fund for deserving cases that don’t fit within the contractual terms. Every member of the team no matter what professional group they belong to can be covered by the one indemnifier, so the team speaks as the team they are. If there are conflicts then separate representation will be arranged.


If a complaint is lodged against a health professional, having indemnity insurance through Medicus will cover that practitioner as set out in the contract for legal costs while the case in front of the practitioners professional or Coroner’s Court, Health Practitioners Disciplinary Tribunal, or HDC or other specified fora. Damages exposure is set out in the contract for a specified amount which exceeds the maximum claimable in the Human Rights Tribunal (for the full terms see the contract of insurance).


We’ve listed the ways a complaint or concern can be investigated and actioned – as well as the possible consequences for health practitioners These range from publicity through to substantial fines, imprisonment, or the removal of your ability to practice.


The many ways a health practitioners can find their practice under scrutiny – and the consequences.


An inquest – The main purpose of a Coroner’s Inquest is to establish the cause of death and make recommendations on how the circumstances leading to the death could have been avoided. If the death is caused by medical treatment, then the actions and any failures of all members of the team may be questioned. Members of the attending team can be asked to provide statements and appear in the Coroners Court and give evidence and be cross examined in a public hearing. Although the Coroner does not attribute blame the process can feel as if witnesses are on trial. Hearings often attract media interest.


A hospital inquiry – These inquiries will follow serious events. If issues about an individual are identified this can lead to further actions involving those persons.


Claim to ACC – ACC can consider claims for treatment injury without the health professional knowing of the investigation. Health professionals can find ACC having formed a concern about them and this has been referred to their professional body with no opportunity to be heard on the matter.


Referral of convictions – Convictions are referred to the Medical Council, Nursing Council, Dental Council, or other applicable professional bodies and will be considered even though the health professional has been through the courts. Convictions can be investigated or result in a medical assessment and sometimes conditions on practice after the matter is considered by the professional body. If serous the matter of the conviction can end up before the Health Practitioners Disciplinary Tribunal.


Complaint to the HDC – The Commissioner can decide to investigate and resolve complaints alleging breach of code of patient rights. Possible outcomes for health professionals include no further action, recommendations of actions to take, referral to the Director of Proceedings (the prosecutor for the HDC) for action referral to the professional body of the health practitioner.


Consideration by Director of Proceedings – The Director of Proceedings considers whether to refer cases to the to the Human Rights Review Tribunal, and/or the Health Practitioners Disciplinary Tribunal.


Medical Council, Nursing Council, Dental Council, Psychologists Board, Physiotherapy and other professional bodies – The professional bodies can consider a complaint and decide to refer concerns to a Professional Conduct Committee, and/or Health Committee and/or for a performance or competence review.


A Professional Conduct Committee (PCC) – Considers the complaint/referral and can decide to take no action, refer to the police, counsel to the practitioner, refer for conciliation, bring charges before the Health Practitioners Disciplinary Tribunal and refer for a review of the health practitioner’s health and/or competence and /or scope of practice.


Competency issue –Professional bodies may instigate a competence/performance review process. This can result in a health practitioner having conditions put on their practice or losing the ability to practice.


Consideration of health practitioner’s health – This determines whether a health practitioner is fit to practice. Outcomes could be suspension from practice, or having conditions imposed on their practice.


Health Practitioners Disciplinary Tribunal – Charges can be brought to the Tribunal to determine whether the health professional has engaged in professional misconduct. This is a public hearing. The health professional faces penalties including cancellation of registration, suspension of up to three years, conditions on practice for up to three years, censure, or a fine not exceeding $30,000 as well as costs.


Referral by HDC to Human Rights Review Tribunal – A practitioner can face a damages claim of up to $350,000, receive an order restraining or requiring certain conduct, or other relief deemed appropriate.


Privacy Commissioner – If there is an allegation of breach of a privacy from the way health information is managed. The Commissioner can resolve cases, or the complainant or Director of Proceedings can bring a claim before the Human Rights Tribunal for outcomes including Damages of up to $350,000.


Human Rights Commissioner – A complaint can be made that a health professional has acted in a way that breaches human rights such as discrimination against a particular ethnic group while practicing. The Commissioner can resolve cases, or the complainant or Director of Proceedings can bring a claim before the Human Rights Tribunal for outcomes including Damages of up to $350,000.


Crimes Act: manslaughter – If a patient dies during treatment due to a lack of care that is a significant departure from expected standards, then a health professional can face a criminal trial with exposure to the risk of imprisonment.


Other criminal offences such as under the Medicines Act and Misuse of Drugs Act 1975 e.g. for prescribing to known drug addicts without approval of Medical Officer of Health, self-prescribing, cultivation or importation of drugs of abuse – Life imprisonment (Class A), 14 years (Class B), or otherwise eight years in prison.


Claims for civil damages that are not covered by ACC – Such as exemplary damages and claims arising from a medical trial.


Trial by media – Publicity. Embarrassment. Harassment by media.


A Commission of Inquiry – These can particularly arise when the Institution that you work at is criticised and can result in public comment that could damage the reputation of a health professional.