Joanna Manning

Prioritization: rationing health care in New Zealand

Joanna Manning and Ron Paterson he amount allocated to publicly funded health care for 2005/06 in New Zealand, a small counT try of some four million people, is

Exceptional Circumstances Schemes and the Social Factors Exclusion in healthcare rationing

NZ 9.68 billion, or 6.2% of GDP, an increase from the 5.7% of GDP in 2000/01. The Minister of Finance has recently signalled that spending in health and education has outpaced economic growth, and that the present rate of growth in health spending, which has grown at about 7% a year over the last decade, is unsustainable.1 Despite these big funding increases in recent years, the perception of New Zealanders is that the extra spending has made little difference, at least to hospital services and to people’s ability to access treatment.2 In surveys, health emerges as a leading concern for New Zealanders.3 Their concern is apparently less about the quality of services, than about their ability to access treatment whether they will be able to access timely health care when they or their family members need it. Whatever proportion of GDP a country spends on health care, demand for health care outstrips supply. The gap is exacerbated by the increased effectiveness of medicine. People with chronic conditions are staying alive longer, being maintained on expensive treatments, in contrast to brief, acute episodes requiring terminal care in the past. New, better, and expensive medical technologies and pharmaceuticals continue to be developed and promoted, thereby creating increased expectations, in a more educated and consumerist population, of what health care can and should provide. There is more than ever a need to ration health care. But at the same time, people are less prepared to defer to decisions when they suspect access is being denied on financial grounds, and some are prepared to use the law to challenge them if necessary.

Plus ça change, plus c'est la même chose: Negligence and Treatment Injury in New Zealand’s accident compensation scheme

Medical students are taught early on about the importance of taking account of a patient’s social circumstances in clinical judgment and medical decisionmaking, in assessment, diagnosis, treatment and especially discharge and follow-up of patients. When national Clinical Priority Assessment Criteria (CPAC) scoring systems replaced traditional waiting lists in New Zealand in the mid-1990s to ration access to elective surgery,1 the scoring tool for most procedures included a ‘social score’ component. The purpose of including social criteria was to ensure that social values were integrated into the decision-making process in an appropriate and transparent manner.2 The social factors incorporated in the priority criteria were age,3 work status, and whether patients were caring for dependants or threatened with the loss of their own independence. Misgivings were allayed by providing that they were to be given relatively little weight compared to clinical factors.4

Medical law in New Zealand

In 2005, cover for treatment injury replaced medical misadventure in New Zealand’s accident compensation scheme. The mischief was to remove the need for a claimant to prove a health practitioner’s or organization’s negligence to establish cover. The aim was to provide greater fairness for claimants, faster claims handling and a higher acceptance rate. A disturbing aspect of the case law interpreting the treatment injury criteria is that notions of negligence have crept back into the interpretation of these criteria and are becoming entrenched. The original purpose of the reform is in danger of miscarrying, unless these misguided interpretations are corrected by superior appellate courts. This is not simply a matter of being faithful to the intention of the reform but is necessary to maximize provider trust and cooperation in the claims process in the interests of claimants. A way to do this is to incorporate the concept of ‘preventability’ as defined in the Swedish, Danish and Finnish patient insurance schemes. It may prove impossible to eradicate fault altogether from treatment injury, but vigilance is required so that negligence is kept to a minimum. Negligence concepts might continue to play a role in the interpretation of the statutory exclusion from cover of personal injury that is an ‘ordinary consequence’ of treatment. Another is in relation to Accident Compensation Corporation’s (ACC’s) mandatory duty to report a risk of harm to the public. Any enthusiasm on behalf of ACC and the courts to ‘bring back negligence’ is ironically absent from the latter aspect of the scheme.