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The human cost of centralising our health system

There is to be a radical change in the way health services are delivered in New Zealand.

Health reform announcementAll 20 district health boards in New Zealand are to be abolished and replaced by a single national organisation called Health New Zealand. Health New Zealand will have four regional divisions.

A new Māori Health Authority will be established with the power to commission health services, monitor the state of Māori health and develop policy.

A further new Public Health Authority will be created. The Ministry of Health will be strengthened and will monitor performance and advise the Government.

Essentially, we are moving from a decentralised model to a very centralised one. This ought to allow for the right amount of specialisation for New Zealand and better access to healthcare, especially from the regions that are not well serviced now.

Reference is made to early intervention to keep people out of hospitals. Reference is made to our ageing population and the need to respond to health crises like the Covid-19 pandemic.

Time will tell whether these changes make much difference to the way the public is cared for.

Māori health statistics show there is real need for a more focused healthcare for Māori. The creation of a new Māori Health Authority is a positive change for the better in the new structure.

Overall, two things are certain.

Firstly, the change will cost a very large amount of money.

Secondly, there will be significant employment consequences. It seems safe to assume that the leadership and support structure in the 20 district health boards will be stripped out. People will lose their jobs. Most should be re-employed in the four regional centres or one of the new national organisations such as Health New Zealand, but many will obviously miss out.

It will be interesting to see whether those currently employed will be given preference over new people when the new bodies are looking for staff. The usual employment law would mean the new bodies, as different employers to the health boards, would not be obliged to take on existing staff. No doubt the relevant unions will be knocking on the minister’s door, asking for assurances for their members.

Further, the shrinking pool of employers for medical professionals would significantly increase the impact of a serious misconduct process involving a doctor, for example.

Many of these processes end in an agreed departure, including confidentiality terms. These enable the parties to move on without litigation to decide the merits of the allegations and dismissal.

A doctor might move from one health board to another, confident that the former employer cannot disclose what was alleged. With a centralised employer, many medical professionals will have fewer alternatives. They might want to move to another hospital, but it’s more likely to be the same employer.

A similar problem is arising for career public servants in general. The Public Service Commission recently released new guidelines for recruitment practices. The new policy applies to many governmental organisations.

The new guidelines suggest recruiting bodies ask applicants whether they have been subject to a serious misconduct investigation. Where that investigation is concluded, and the finding of serious misconduct was upheld, the prospective employer wants to know about it. Similarly, where the investigation is current and not yet concluded, the government employer wants to know about that too.

At the application stage, a prospective employee is asked to consent to a serious misconduct disclosure from their previous employer. If they do not consent to a serious misconduct disclosure, this does not mean they cannot be employed.

Obviously they will be asked why they refused to consent and that will be considered in deciding whether to progress the application. But realistically it is not easy to believe that such a person is likely to be employed.

Employing managers are asked to decide on a case-by-case basis including looking at the risk profile of the role and the requirements of the position. How recent any integrity or conduct issue occurred is a consideration. So is any counselling, retraining or rehabilitation the person has undergone. Finally, the explanation by the candidate is also relevant. Generally, the inquiry goes back only three years, but for senior or high-risk roles the inquiry may go back further.

To aid with this approach, the commission has suggested that government employers think carefully whether to include confidentiality terms when settling matters. They are encouraged to consider in settlement discussions what the parties can agree to say if consent is sought for disclosure further down the track.

Many candidates will be surprised to hear about these new guidelines and the impact they have on their privacy. People want the opportunity to put their mistakes behind them and move on with their lives.

The new guidelines suggest recruiting bodies ask applicants whether they have been subject to a serious misconduct investigation. Where that investigation is concluded, and the finding of serious misconduct was upheld, the prospective employer wants to know about it. Similarly, where the investigation is current and not yet concluded, the government employer wants to know about that too.

At the application stage, a prospective employee is asked to consent to a serious misconduct disclosure from their previous employer. If they do not consent to a serious misconduct disclosure, this does not mean they cannot be employed.

Obviously they will be asked why they refused to consent and that will be considered in deciding whether to progress the application. But realistically it is not easy to believe that such a person is likely to be employed.

Employing managers are asked to decide on a case-by-case basis including looking at the risk profile of the role and the requirements of the position. How recent any integrity or conduct issue occurred is a consideration. So is any counselling, retraining or rehabilitation the person has undergone. Finally, the explanation by the candidate is also relevant. Generally, the inquiry goes back only three years, but for senior or high-risk roles the inquiry may go back further.

To aid with this approach, the commission has suggested that government employers think carefully whether to include confidentiality terms when settling matters. They are encouraged to consider in settlement discussions what the parties can agree to say if consent is sought for disclosure further down the track.

Many candidates will be surprised to hear about these new guidelines and the impact they have on their privacy. People want the opportunity to put their mistakes behind them and move on with their lives.


Moved on – what does it mean?

Mandating vaccinations at the best of times is a vexed issue. It is even more so in the environment of a global pandemic where millions of people to date have died of COVID-19. With the development of safe vaccinations to protect against the virus, New Zealand is starting to roll-out the vaccinations to people at most risk of contracting the disease before it is rolled-out to the general population (over 16 years old).

Covid19 VaccineThe roll-out has not gone as smoothly and as quickly as some people may like. There still remain a significant number of border workers that have not had the vaccination. It is not entirely clear if this group of workers are opposed to the vaccination or if this is due to availability issues. Whatever the case, the Prime Minister has now said unvaccinated border workers will be “moved” by the end of the month. What this means is unclear.

The law around this is complex

The starting point is section 11 of the Bill of Rights Act which states that “everyone has the right to refuse to undergo any medical treatment.”

It is often understood (incorrectly) that this right has unlimited application to all circumstances. However, it only applies to acts done by “any person or body in the performance of any function, power, or duty conferred or imposed on that person or body by or pursuant to law.” Further, the Employment Court has confirmed that employment relationships fall outside of the exercise of the performance of a public function and the right to refuse medical treatment does not apply in the employment context.

Under the Health and Safety at Work Act an employer must ensure, so far as is reasonably practicable, the health and safety of workers who work for it, as well as for the people in its workplace (whether they are other businesses workers, or visitors to the workplace).

This is a significant obligation on employers, but by virtue of the words ‘so far as is reasonably practicable’, this is not an absolute obligation to prevent anything harmful from ever happening and is subject to reasonable limits. For a lot of employers as the roll-out of the vaccination continues, this duty will start to minimise responsibilities from protecting the workplace from the risk of COVID-19. For other employers, in higher risk workplaces, this duty will continue until the world becomes a safer place again.

For those employers in higher risk workplaces, the obvious questions are whether they would be justified to mandate vaccination and/or whether they would be justified in “moving on” an unvaccinated worker in its workforce (whether by termination of employment or redeployment into any available lower risk roles).

Either of these scenarios are problematic from an employment law perspective.

Would a direction to have a COVID-19 vaccination be lawful and reasonable? The case of Engineering Printing and Manufacturing Union v Air New Zealand is somewhat analogous. The full Employment Court considered the legality of a drug testing policy that Air New Zealand was introducing. Under the policy, employees would be asked to provide written consent to the drug test, but an employee refusing to do so or to undergo the test would face the same consequences as in other like situations where an instruction is refused. The Court accepted that the employer’s health and safety obligations made it reasonable for employers to discharge their duties by a variety of available practicable means, including drug testing in safety sensitive areas.

It was noted that a direction to take a drug test may be both lawful and reasonable and, if so, an employee cannot resist it on legal grounds. However, any disadvantage or dismissal that may ensue after a refusal is tested for lawfulness and reasonableness of the instruction as well as the fairness and reasonableness of the employer's actions in all the circumstances.

The Court went further to say that employees may have good reasons for either refusing drug tests or for returning positive tests that will mean that in spite of the direction to take the test being a lawful and reasonable instruction, such employees are not to be unjustifiably disadvantaged or dismissed in all the circumstances.

It is likely that in the context of vaccinations, which are an invasive procedure, there will be stronger and more ‘good reasons’ to refuse than there are reasons to refuse drug testing. As such, it may be more difficult to show that taking disciplinary action (either dismissing the employee or moving the employee into a less risky role) against an employee who refuses to get a vaccination is fair and reasonable.

The same issues arise in the situation where the employer does not require the employee to be vaccinated but uses the fact that the worker is unvaccinated as the reason to justify dismissing the worker or moving the worked into a less risky role (the Prime Minister’s so called “moving on”). The employer’s actions will be tested for lawfulness as well as the fairness and reasonableness of the employer's actions in all the circumstances.

Conclusion

The Government has said that it will not make COVID-19 vaccinations mandatory. That places some employers in an unenviable position.

Employers in areas of higher risk in relation to COVID-19 should get legal advice on their risks if they do not take reasonable precautions to protect their workforce or visitors to their workplace from the potential risks of unvaccinated workers. They will need to balance that analysis against the potential risks from either mandating COVID-19 vaccination and/or “moving on” workers.


Even doctors suffer from unhealthy work environments

Some of the most sought-after professions can be the most demanding for young people to train in. The medical profession is no exception and current policies within the profession highlight the pitfalls of managing this difficult area.

Unhealth work environmentsJunior doctors entering the profession are highly motivated, highly intelligent and determined to succeed. The rigorous selection criteria for their profession ensures they are nothing but this.

But it is these characteristics which also make them vulnerable.

Such determination to succeed frequently means they are prepared to endure far more than they reasonably should. Junior doctors in New Zealand and Australia are reporting they are working unsafe hours, subject to toxic work environments, subject to sexism and sexual harassment, and the list goes on.

Frequently those subjected to problematic behaviour in the medical profession are reluctant to raise issues. Given the close connections between all those within the profession, junior doctors are justifiably apprehensive about raising any complaint which could damage their reputation and jeopardise their career. During my time in practice, I have encountered this on more than one occasion.

There are many obligations an employer has in these situations. They must provide a safe place of work. They must treat the employee fairly and reasonably and in a way that enhances trust and confidence.

Almost all workplaces and training institutions maintain bullying policies to address these issues, but any policy must have regard to the environment they operate within.

The Royal Australasian College of Surgeons has made “cup of coffee conversations” (CCC) a significant part of their bullying policy.

Under this policy, doctors are encouraged to invite those engaging in bullying behaviour to a cup of coffee. During the cup of coffee, the victim is encouraged to “clearly” and “unambiguously” raise the specific matters which are causing that person distress.

A tall order for someone who is afraid of the reaction they will get.

A cynic might suggest such policies are more likely to protect the perpetrator of such conduct as opposed to the victim.

Rhea Liang is the former deputy chairwoman of the Royal Australasian College of Surgeons’ “operating with respect committee”. In support of the policy, she has said on Twitter: “The whole point of the CCC is to provide an intervention shortly after the event (singular) more rapidly than has usually happened through more formal structures.”

She has also tweeted: “Importantly, the CCC lowers the barriers for reporting. Too many formal structures require disclosure of identity, investigation, statements of fact etc into which existing power differentials and discriminations play. It's too easy for the complainant to be silenced.”

Such goals are commendable. However, they arguably disregard the circumstances of those participating in the system. A trainee doctor and their trainer will never be on equal footing. Many would find it very difficult to initiate and hold such a confrontational conversation.

Emphasising such a policy only reinforces a view that it is the responsibility of victims to address bullying where it occurs. Where behaviour has continued for some time, such a policy might also suggest it was the failure of the victim not to raise the matter sooner that is blameworthy. Such feelings may cause complaints to be buried longer, or not raised at all.

Unfortunately, a recent case suggests dysfunctional relationships within district health boards (DHB) are a fact of life.

In 2019 a junior doctor employed by the Northland DHB brought a host of claims against her employer. One of the claims was that she was bullied.

She said she was often ridiculed, was “ripped into”, blamed for adverse events, given inconsistent instructions, and was threatened.

She claimed that as a result she became ill, lost weight, did not want to attend work, was confused and upset, and lost confidence in her abilities.

Another doctor at the DHB said he understood there was a “dysfunctional relationship” but the junior doctor had not described the behaviour as bullying.

After considering the evidence, the court ultimately held that “context for these dynamics was a high-pressure work environment”.

It found there were “at times significant workplace demands which arose from high patient numbers and the intensity of care required by them. These factors created significant stress for staff, at all levels”.

The court ultimately concluded that at heart the issue was a relationship problem between the two doctors and that communications with each other were completely professional at times and at other times were not.

The court acknowledged the “huge international literature on the topic of bullying of junior doctors by senior doctors, a product of the significant power imbalance that can occur”. However, it ultimately determined that the complexities of what occurred did not qualify as bullying. The court found that the junior doctor’s health was not imperilled.

The current state of play is not satisfactory. Dysfunctional relationships within the workplace cannot be allowed to fester. Regardless of whether issues are bullying, poor communication or personality clashes, such relationships left unresolved will inevitably become issues of health and safety.

Employers cannot rely on the parties involved to sort these issues themselves. Power dynamics at play, and a reluctance to speak up, should always be considered. Where necessary, employers should not be shy to step in and set expectations for all parties and enforce those.

If these lessons cannot be learnt, I fear that talent across all our professions will be lost, and at all our expense.


Here's why businesses shouldn't rush to conclusions in employment investigations

A recent employment case in Australia demonstrates the importance of taking care with employment investigations and not rushing to conclusions.

workplace investigationGregory Sherry sued Toyota Australia in the District Court in New South Wales following his dismissal. Sherry had been sacked for what Toyota decided was improper use of his company credit card. After a six-day hearing, the court disagreed. One expects the hearing would have been much quicker (and cheaper) in our Employment Relations Authority.

Sherry had been told that he would be entitled to a redundancy payment of around A$380,000 (NZ$544,000) gross if he worked until a particular date. Sherry had worked for Toyota for about 20 years at the time, having risen through the ranks. He decided to work until that date. Unfortunately, he was sacked three days beforehand for serious misconduct. Toyota said he would get none of the redundancy compensation promised because he was dismissed before he was made redundant.

Sherry was required to go to Port Melbourne from Sydney for meetings with his successor and others in the period leading up to his redundancy. He took his family with him and paid for their travel with his personal credit card. They stayed with him in the hotel he had booked at the company’s expense and did not require extra bedding.

The company alleged many things. One was that Sherry booked a larger room than he ought to have booked, so that he could squeeze his family in. The Australian Open was on in Melbourne at the time and hotel accommodation was both hard to get and more expensive. The court rejected the company’s argument. Indeed, the court ultimately rejected the company’s allegation that Sherry was guilty of serious misconduct at all.

Sherry had acted ineptly but not dishonestly or unethically. This was not sufficiently serious to justify his dismissal.

It appears that Sherry and his family went to the Common Man restaurant for a meal prior to catching the flight back to Sydney at the conclusion of the business trip to Melbourne. Sherry separated family expenses by paying for their costs on his personal credit card.

He charged the company for his own meal and a beer – the princely sum of A$32.50. Sherry gave two slices of leftover pizza from his own meal to his son. The company relied on this as one of its grounds for dismissal. It alleged that he had spent company money to buy food for his son when he ought not to have done so.

The company seemed to make a big deal of this, but the Judge found that none of the evidence relating to the meal established serious misconduct. Sherry’s dismissal was unjustified.

Sherry wanted as one of his remedies the full redundancy compensation payment. He won that argument, but the final amount awarded to him was adjusted for an ex-gratia payment made by the company and some fine-tuning on expenses.

One of the court’s concerns was that Toyota had not approached the investigation with an open mind and that it had rushed the investigation. There was evidence that Toyota had already made its mind up before it heard from him in an investigation meeting called without forewarning.

I have no doubt that the case would have been decided the same way in New Zealand.

In 2019 our Employment Court heard a claim by a Department of Conservation ranger.

DOC policy requires employees to advise their supervisor immediately if their driving licence is suspended. The ranger advised his manager when his application for a limited licence was declined, some six weeks after he had been suspended from driving. He had driven a DOC vehicle in the meantime.

The worker was challenging some of the demerit points that had been used against him and raised that with DOC during the disciplinary process. The court held that the process was defective and that DOC did not approach the investigation with a sufficiently open mind.

The chief judge also held that the worker deliberately failed to promptly disclose that his licence was suspended, and that he drove the work vehicle during the suspension. The chief judge said that a fair and reasonable employer could have upheld serious misconduct and dismissed.

This contribution by the worker saw his compensation reduced, but nonetheless he won his case due the to the deficiencies in DOC’s process. The worker got reasonably significant remedies but failed to get reinstatement, which is what he was really after.

Two interesting cases where each worker got a significant sum of money for an unjustified dismissal. Neither retained employment.

In the Toyota case there was a genuine redundancy with the transfer of work to the head office at Port Melbourne. In the DOC case the relationship was too badly damaged to reinstate the worker.

In both cases the employer could have avoided significant expense by slowing down and giving their long-standing employees a fair hearing.