Complaints against medical practitioners are more likely to be made public after a “significant” Ombudsman’s decision into a long-running Otago Daily Times complaint.
University of Otago law professor Andrew Geddis says the opinion regarding the application of the Official Information Act (OIA) in respect of the practitioners’ privacy versus public interest in complaint histories is “significant”.
While Ombudsman Ron Paterson, formerly the Health and Disability Commissioner (HDC), upheld the commissioner’s refusal to release the complaint history of a midwife to the ODT, he issued new general principles for the HDC and, by analogy, district health boards to apply in considering future requests under the OIA.
While the “traditional” approach had been to refuse those requests on privacy grounds, Geddis says the Ombudsman’s opinion means that approach is no longer acceptable.
“It [the opinion] lifts any blanket bar on such information being made public and instead requires an individual, case-by-case balancing, so it ought to lead to more information being made public than in the past.
“When you’ve got any general principles, applying them in particular circumstances will involve some discretion and some questions.
“HDC will make their calls, but of course the Ombudsman can always review those calls and tell them if they’ve got it wrong.”
In March 2013, the ODT complained to the Ombudsman about HDC’s refusal to release the complaint history of midwife Jan Scherp who had, the previous month, been cleared of an allegation of serious misconduct in respect of her care of Queenstown woman Sara Gutzewitz in 2010.
While Paterson upheld HDC’s decision, he says a “blanket approach” to withholding practitioner complaint histories on privacy grounds is not supported by the OIA.
In certain circumstances there might be a public interest in “lifting the veil” on complaint histories, sufficient to outweigh the health practitioner’s privacy interests.
The Ombudsman says in light of the “growing need for transparency” in the health sector, it was timely to reconsider the approach taken to similar requests.
“Both HDC and DHBs generally refuse such requests, invoking the privacy interest of the health practitioner as a good reason to withhold the information.”
Paterson says the cases go to the heart of one of the purposes of the OIA, “to protect official information to the extent consistent with the public interest and preservation of personal privacy”.
But regard also had to be given to another purpose of the Act, “to increase progressively the availability of official information to the people of New Zealand”.
The HDC said disclosing complaint histories would not play “any significant role in ensuring public safety” and it was also unlikely to improve patient choice as, in many circumstances, “patients do not have a choice of provider”.
It also said releasing information without context “at best … runs the risk of being meaningless; at worst, it may cause undue concern and alarm for patients”; and public safety was primarily the domain of the regulatory authority, therefore there was “no overriding public interest” in disclosing complaint histories.
However, Paterson says providing contextual information would address some of the HDC’s concerns.
He didn’t accept the co-regulatory roles of the HDC and relevant responsible authorities meant the public interest in public safety could be effectively discounted.
“The oversight of these agencies is vital in addressing the public interest in patient safety and practitioner accountability.
“However, there is also a public interest in promoting the accountability of the agency that received the complaint for the performance of its functions in assessing and investigating that complaint and ensuring appropriate remedial action is taken.”
The principles outline specific factors to assess the strength of the privacy versus public interest in disclosing a complaint history. That includes the number of complaints against any health practitioner.
Otago Daily Times