Informed consent

Since her appointment in late 2020, Commissioner Morag McDowell has seen a steady rise in the Health and Disability Commission’s public profile. That is bringing more issues to their attention.

Matt Shand | Journalist

Complaints to the Health and Disability Commissioner are on the increase with a 25 per cent rise in complaints over the last 12 months and a 14 per cent increase in 2021.

Commissioner Morag McDowell says one of the common reasons medical professionals can find themselves subject to a complaint is when there is a breakdown of informed consent between patient and practitioner.

“Informed consent is very much at the heart of the Code of Health and Disability Services Consumers’ Rights,” McDowell said. “It forms about 15 per cent of our complaints and that number has remained steady over the years.

“Early resolution is the best resolution. Robust internal practices can prevent complaints making it to us in the first place, as the consumer has their needs met.”

“It is important to think about informed consent as a process rather than a tick box. It is the right to make an informed choice to give informed consent and that consent must be freely given. It is the right to receive reasonable information and have that communicated effectively.”

“Communication regarding health information can be complex, so does require consideration of how this is being heard. Communication can be more challenging for providers when engaging with people who are distressed, who have difficulties processing information or who are from different cultures or speak different languages. So additional considerations need to be taken into account.

“Practitioners need to be attuned to signs a person may not be understanding,” she said.

“A good process is to ask the patient to explain back to you what it is they understood about the information they have been given.

“Consent is an interactive process and it’s not a single moment in time. There needs to be ongoing discussions if things change.”

To assist people in their understanding of informed consent the HDC launched an e-learning module on November 17, Aotearoa Patient Safety Day, to provide education resources and methods to ensure effective communication.

The three modules cover topics such as understanding the purpose of the Code, applying it to practice, ensuring informed consent is gained, and understanding the right to complain. Each module can be completed in about 30 minutes.

“Understanding responsibilities under the Code helps improve the quality of care and avoids complaints,” McDowell said.

“I do acknowledge the stress that being on the receiving end of a complaint can cause.”

The HDC is looking into its processes in a bid to make the complaints process more people centric, both for consumers and for providers.

Resolving complaints in a timely manner is also a key priority. “Last year we managed to close 71 per cent of complaints within three months, 78 per cent within six months and 87 per cent within 12 months.

“Complaints can be serious and highly complex," she said. There are often multiple providers, and we need to gather clinical notes and other information.

“We are focused on fairness in our process and ensure the provider and consumer have the opportunity to be heard. Sometimes in the case of an investigation this process can take time to resolve sometimes more than two years.”

With the healthcare system becoming overstretched and under resourced there is more pressure on the health workforce. McDowell says her office factors in this additional pressure when ruling on cases and looks for systemic issues that can be resolved.

“We have a wide jurisdiction,” she said. “We can look at systemic issues and use our data to raise concerns immediately. If we are seeing, for example, a group of complaints coming from a particular service we can go to Te Whatu Ora to ask what is going on.

“If it is a matter of concern, we can escalate that immediately.”

McDowell says the best course of action for people who find themselves on the receiving end of a complaint is to treat it as a chance to learn and look for opportunities for early resolution.

“Early resolution is the best resolution,” she said. “Robust internal practices can prevent complaints making it to us in the first place, as the consumer has their needs met. It’s good for a provider to identify what concerns the consumer has and take the action needed. If it can be managed, then it is more effective than waiting months or years for resolution.

“Most complainants want what happened to them to not happen to someone else. Look at what remedial options you can put in place to address the issue at hand. If it escalates to a formal process, it is important to engage with requests for information and seek professional personal support if you need it.”