MANUAL DE BUENAS PRÁCTICAS EN LA ATENCIÓN A MUJERES MIGRANTES

Through this thesis, I refer to the legislation and codes that were occasioned in New Zealand by Green’s cervical cancer experimentation. I depend for some interpretation on Skegg and Paterson’s (2006) Medical Law in New Zealand. Whether patients consult medical practitioners in the public or the private health systems, they may expect treatment that meets the standards of care developed in The Code of Health and Disability Consumers’ Rights 1996 (HDC, 1996), based at common law, and The New Zealand Bill of Rights 1990 (Crown Entities, 1990). While The Code clearly sets out patient rights to best care and informed-consent processes, I briefly point to some areas of potential slippage between the legislative framework and the day-to-day practices of quality of care and fully-informed-consent processes. Legislation and codes may act to encourage meeting some minimum standards. However, I suggest that best care standards will more likely emerge in an environment in which ethical practitioners

absorb and act out of relational values. Specifically, informed consent is based on concerns about the autonomous patient who may be assisted to make a rational choice from available options with adequate information and a lack of coercion. While attention to ethical principles may ensure some basic approximation of informing consent as an ongoing process, it does not attend to the oppressive context in which the consent is procured nor does it attend to important relational aspects of women’s decision-making. Consequently, when advice is sought about undergoing any procedure, the effacement of the practitioner lends an air of objectivity in which the basic questions women are asking such as “what do I need to do?” and “What do you recommend?” are never attended to. These are relational aspects of decision-making that would clarify the context in which these decisions are being made and insist on real engagement for practitioners with the lived experience of their patients in ways that benefitted both.

Health service provision in New Zealand is funded within a tax-based system framed by The New Zealand Health and Disability Act 1994. The public health system delivers 120,000 elective surgeries and this is supplemented by an expanding provision of care through private hospitals and clinics that perform 150,000 elective procedures each year.34 The private health system is supported by fee-paying individuals, by patients with private medical insurance35 and by public funding of elective procedures in the private system. There is some division between the public and private systems, with the provision of emergency care and some treatments being provided solely through the public system. As well, though, surgeon and specialists often operate within both systems; patients may choose to consult a specialist in the private sector but then choose to have their procedure, via a waiting list, in the public system; public funding may be made available for surgeries in the private system as in some WLS (Ryall, 2009); and, treatments for some patients have been accepted for cover under ACC regulations.

New Zealand citizens access their health care in an environment of government compensation for injuries sustained in treatment environments without regard to gravity, rarity or fault needing to be proven. ACC is New Zealand’s no-fault accident compensation scheme that came into being on the 1st April, 1974. This is presented as a “social contract” between the state and New Zealand citizens to compensate them for

injuries sustained as the result of accidents and includes iatrogenic injuries: It “[…] boldly extinguished the right of New Zealanders to bring civil claims for damages for personal injury against wrongdoers” (Manning, 2006b, p.680). In 2005, medical misadventure,36 which included medical error, was replaced with a category called treatment injury. Given that this category includes both serious and minor iatrogenic injuries, an increase in claims was expected because the patient no longer had to prove rarity and severity (Braddell, 2005) as required under the former provisions.37 Given some reported levels of iatrogenic injuries elsewhere38, it is difficult to understand why medical misadventure claims comprised only 0.05 percent of all injuries accepted under the scheme in New Zealand.

The legislative environment in New Zealand provides a regulatory framework for the safety and quality of health care provision: The Health and Disability Commissioner has become “the one stop shop” (Paterson, 2006, p.22) for complaints about patient care. Legislation includes The Health and Disability Commissioner Act 1994 and its associated code of patient rights; The Health and Disability Services (Safety) Act 2001, that seeks to ensure reasonable and consistent standards of safety amongst providers of care. This act specifies the requirement to report to the Director-General of Health sentinel events that place the health or safety of a consumer at risk, including any police investigation into service provision or any death reportable under The Coroner’s Act 1988; the Health Practitioners’ Competence Assurance Act 2003 provides the mechanisms for ensuring fitness to practice including methods for making health professionals accountable for that practice (Paterson, 2006b).

Medical encounters are clearly risk-infused environments. Patients depend on professional standards in relation to care and the provision of quality information in consent processes. As well, practitioners risk a prima facie assault on a patient unless consent is obtained for medical and surgical procedures (Earle, 1999). Under common law a technical assault occurs when any test or procedure involving physical contact is not expressly consented to. The New Zealand Bill of Rights 1990, Section 10 (Crown Entities, 1990) prohibits medical or scientific experimentation that is not patient- sanctioned, and does not limit such experimentation to that involving physical contact.

36_{For a history of Medical Misadventure/Medical Injury provisions under the Accident Compensation}

Acts beginning in1972, the reader is referred to Medical Law In New Zealand (2006).

37 _{This provision is again under threat in 2009 with the change to a National government in New}

Zealand.

38 _{For instance, a minimum of 44,000 deaths per year is reported in the United States annually to}

The Code of Health and Disability Consumers’ Rights 1996 (HDC, 1996) has a crucial role in many areas of New Zealand Medical Law (Paterson & Skeggs, 2002). This code exists under the parentage of The Health and Disability Commissioner Act 1994 that was itself enacted in response to The Cartwright Report (1988).39

2.11 Some critical commentary on legislation for protection of patients in New