Advocacy lessons from HDC cases

April 1, 2021

Last month’s NZNO professional forums focused on a nurse’s obligation to advocate for their patients. Cases referred to the Health and Disability Commissioner provide valuable advocacy lessons for nurses.

Sophie Meares
Medico-legal lawyer Sophie Meares

The job of the Health and Disability Commissioner (HDC) is to investigate potential breaches of patients’ rights. These rights include the right to services of an appropriate standard, the right to effective communication and the right to informed consent.

Often where a practitioner or provider has breached a patient’s rights, there will be a nurse in the background who has failed to advocate for that patient’s rights. We can examine those cases to ensure we are learning from their mistakes so they do not happen again.

Equally, some published cases have praised nurses for the way they have advocated for the patient. We can use these cases to emulate the courageous way these nurses have stood up for their patients in difficult situations.

Here are some key lessons from those cases.

Lesson #1: Be assertive

If you are concerned, make it known. Have confidence in your clinical judgment – if something is not right, you need to insist it is checked. This can be difficult when the team is busy, but these are the times when things fall through the cracks.

The HDC investigated a case where a woman had provided written consent for a hysterectomy.1 Three months later, when the woman was on the operating table, the surgeon approached her and recommended they also perform an oophorectomy (removal of an ovary). The surgeon amended the patient’s written consent and her signature was obtained. The surgeon was found to have breached the patient’s right to informed consent.

The HDC commented: “I am concerned that none of the clinicians in the operating theatre advocated effectively for [the patient] in this case.” The nurse who had been at the patient’s side by the operating table had tried to comfort the patient when the consent was amended. The nurse had also asked the patient whether she wanted to talk it over with her husband (which the patient declined because her husband had already gone home). This was not enough – the nurse should have questioned the surgeon and intervened over the faulty consent process. The HDC also criticised the DHB for failing to normalise a culture where advocating on behalf of patients was accepted – it was not enough for the DHB to just have a policy on this.

In another case, a midwife was called in to assist a lead maternity carer (LMC) with a delivery. The LMC was concerned about the progress of the labour, but was not concerned about the foetal heart rate. The assisting midwife carried out a vaginal examination, and she was concerned about the foetal heart rate. However, the assisting midwife did not insist on a cardiotocograph (CTG) being attached until 40 minutes later. The assisting midwife left the room at one point to speak to a doctor about the progress of the labour. She told the doctor “she would be happier for him to assess [the patient] immediately”, but also that she was “just as happy to continue”.

The HDC found the LMC breached the patient’s rights. The HDC was also critical of the assisting midwife’s failure to advocate for the CTG being attached much sooner. They were also critical of her conversation with the doctor where she should have insisted on an immediate obstetric referral.

It is important you are assertive and intervene when things are not going right. If your clinical judgment is that a medical review is required, you need to insist on it.

Lesson #2: Be persistent

If your concerns are falling on deaf ears, escalate them. Start with your manager, and if they do nothing, work your way up. The Nursing Council provides guidance on escalating your concerns.2 If you are finding escalation difficult, or are experiencing negative consequences for being outspoken (eg personal, reputational or employment consequences), seek support from NZNO.

A damning report from the HDC in 2008 found very poor practice on the part of former Whanganui Hospital obstetrician and gynaecologist Roman Hasil. This included failed sterilisations, management plans tending towards hysterectomy if the patient’s uterus was not deemed “useful”, cursory history-taking and exams, failure to inform patients about what he was doing, poor documentation and hurting people during exams.

A nurse who worked closely with Hasil documented her concerns and reported them to her manager, who raised the issues with Hasil’s manager. Some action was taken, but never enough to resolve the issues. The nurse continued to raise and document her concerns, and even calling the Whanganui District Health Board’s (DHB’s) chief executive officer (CEO) directly. The hospital failed to act on her reports, and those of other staff.

After Hasil had worked at the hospital for 14 months, a further complaint was made about him and he resigned. He was referred to the HDC. The HDC praised the nurse for her prescient remarks, and her persistence in escalating the matter. The HDC was highly critical of the hospital, pointing out the DHB ought to have known the risk Hasil posed before his resignation, due to complaints from staff and patients.

Commenting on the complaints from the nurse, the HDC said: “Of particular note… a well-regarded nurse warned that Dr Hasil would make a grave mistake… It is startling how little was done in response to the various concerns.”

The nurse in Hasil’s case would have had a very difficult 14 months – Hasil tried to blame her for being difficult to work with, and she would have felt she was getting nowhere when her concerns were not properly addressed. However, because she persisted, eventually something was done, and she was praised by the HDC.

Lesson #3: Document your concerns

Often advocacy by a nurse will occur in a conversation with a colleague or other health practitioner. If your concerns are not heeded, you will need to be diligent in your documentation. If you do not document the conversation, it is difficult to prove it occurred. Write it in the clinical notes. If you no longer have access to the notes, write an email to your manager with your concerns. If possible or appropriate, write an incident report. Be specific about the concerns you pass on. Using shorthand is OK – any kind of documentation is better than nothing.

If you do not document the conversation, it is difficult to prove it occurred. Write it in the clinical notes.

In a case involving an aged-care facility, a clinical manager arranged a GP appointment for a resident. The resident had been unwell for several days with a cough, lethargy and reduced appetite. However, the GP said he understood the appointment was only about the patient’s itchy ears.

The HDC said the nurse manager was responsible for advocating on the patient’s behalf as he was unable to speak for himself. “Although it is unclear what information was conveyed to [the GP], owing to differing recollections and a lack of contemporaneous documentation, it appears that [the patient’s] deteriorating condition was not communicated to [the GP] adequately.” The HDC said that “it was the nurse manager’s responsibility to ensure pertinent information was communicated to the GP, and given the lack of documentation I consider it more likely than not that this did not occur.”

If you fail to document a conversation, it may be assumed it did not occur. Your documentation is your protection if a complaint is made about your care.

Lesson #4: Advocacy when passing on care and at discharge meetings

Often a nurse’s advocacy can fall short at key moments when care is passed on. This might be when a patient is discharged or transferred to another ward, at handover, or when the patient is referred to another service. At these times, part of your advocacy role is to highlight any concerns to the practitioner taking over the patient’s care. A rushed or unclear handover can mean things are missed. Ensure you document specific concerns that you pass on to the other practitioner. The aged-care case cited above is a good example of where a nurse failed to advocate properly on handover.

Another critical moment for advocacy is when patients are discharged. If a patient is being considered for discharge, but you have concerns about this, you need to make sure your concerns are heard. If they are not listened to, you need to record your concerns.

Staff were moderately busy with other patients and medical decisions were made while the nurse was out of the room.

In a case where a patient was incorrectly discharged, a DHB was found in breach of the patient’s rights and was heavily criticised by the HDC: “The team as a whole was in possession of enough information to indicate that this was a very unwell child, but there was no meeting of minds between the nursing and medical perspectives. This was a result of attitudes and opportunities. Staff were moderately busy with other patients and medical decisions were made while the nurse was out of the room.”

The HDC said an attitude of valuing the nursing perspective would have “ensured that there was adequate communication of concerns and opinions… Any individual in the clinical team should be able to ask questions or challenge decisions at any time, and it is important that employers such as DHBs encourage such a culture… Good support systems (including the safety net of vigilant senior nurses and readily available consultants) are also crucial.”

Employers need to create a culture where the nursing perspective is valued at these critical moments when decisions about care are made.

Even if you do everything in your power to advocate for your patient, other things might go wrong, or another practitioner might fail in their duties. If a patient complains and you are asked to describe your involvement with the patient’s care, your documentation will be your legal protection to prove you did what was in your power to advocate for them. NZNO’s medico-legal team is here to help if you are involved in a complaint.


 

View the full presentation given by medico-legal staff (PDF, 276 KB) at recent NZNO professional forums on nursing advocacy.

References

  1. Health and Disability Commissioner. (2015). Consent for surgery obtained while on operating table [Case 14HDC00307].
  2. Nursing Council. (2012). Guidance: Escalating concern. Code of Conduct for Nurses (p41).
  3. Health and Disability Commissioner. (2020). Care plans and monitoring of a rest home resident [Case 17HDC01225].