It has been estimated that on an average day in Queensland 7456 inpatients and 25 093 outpatients are cared for in the public health system. ¹ If these figures are extrapolated across the public and private sectors of all Australian states and territories it becomes clear that there are many hundreds of thousands of patient–health professional contacts per year within Australia. While the vast majority of these contacts are carried out by competent, skilled professionals who deliver safe and high quality healthcare, there are mistakes made that result in patient injury and death. These mistakes occur for a wide variety of reasons, which include incidents arising from system failure through to incidents resulting from professional incompetence. Recent media coverage of high-profile litigation and community concern in relation to unacceptable medical practices in Bundaberg and Bega serve to illustrate the need for constant monitoring and analysis of the safety and quality of healthcare services. This chapter will address the attempts by government at Commonwealth, state and territory levels, with the involvement of professional bodies, to address and improve the safety and quality of healthcare in Australia, and will distinguish between human rights and patient rights.

The incidence of patient injuries occurring in a healthcare context has more recently become a significant issue in considering malpractice claims against health professionals. It is important, therefore, to have an understanding of the rate at which these injuries, referred to as adverse events, adverse patient outcomes, or iatrogenic injuries, are estimated to occur.

Adverse events or adverse patient outcomes have been defined by Tito as:

In Australia, there is limited information on the nature and number of adverse patient outcomes or events that occur in the healthcare system. However, the types of injuries included in these incidents could be categorised as: damage resulting from the administration of incorrect medications or incorrect dosages of medication; failure to notice significant test results or understand their significance; injuries such as infection or perforation occurring during surgical interventions; and incorrect or missed diagnosis of disease or injury. In 1994, the Australian Institute of Health and Welfare (AIHW) conducted a study that involved the examination of hospital records of patients admitted in 1992 to 28 acute and public hospitals in South Australia and New South Wales. ³ In total, 14 179 admissions were reviewed. The findings of the study were that 16.6% or 2353 of the admissions had suffered an adverse event. This percentage equated to 11% of the total admissions. Though the causes of the individual events were not examined in detail, a preliminary analysis indicated that preventability was considered to be in the vicinity of 8.2% or 1157 of the admissions. ⁴ Tito reported that:

The Commission on Quality and Safety in Healthcare⁶ was established by the Australian, state and territory governments to develop a national strategic framework and associated work program that will guide their efforts in improving safety and quality across the healthcare system in Australia. The Commission commenced on 1 January 2006, and its key roles are to:

The AIHW⁷ is a statutory authority, established by the Australian government operating under the provisions of the Australian Institute of Health and Welfare Act 1987 (Cth). The AIHW is a national agency set up to provide information on Australia’s health and welfare, through statistics and data development, that inform discussion and decisions on policy and services. The AIHW works closely with all state, territory and Australian government health, housing and community services agencies in collecting, analysing and disseminating data.

The AIHW has established and is involved in a large number of national committees and supports health and welfare investment by providing statistical expertise in a range of health, housing and community services areas. Some committees are concerned with developing standards or performance indicators, whilst others are internal committees supporting projects to influence public debate and policy. For example, the Cancer and Screening Unit at the AIHW provides the secretariat for the Australian Association of Cancer Registries (AACR) executive. Cancer registration is an important and fundamental tool in cancer monitoring. Australian states and territories are required by legislation to maintain a cancer registry of new cases of malignant cancer and the cancer statistics collected are coordinated on a national basis.

In 2007 the AIHW and the Australian Commission on Safety and Quality in Healthcare⁸ published the first national report of sentinel events in Australian public hospitals. ⁹Sentinel events have been variously defined as:

The report reveals that in 2004–05 there were 4.3 million admissions into 759 Australian public hospitals. These hospitals also recorded 42.6 million non-admission services to patients over the same period. ¹¹ During this time there were 130 sentinel events reported. The most commonly reported ‘event type’ was procedures involving the wrong patient or body part, and the most common contributing factor was the lack of, problems with, or breakdown in, the rules, policies or procedures.

More recently the AIHW released its fifth report in the Safety and Quality of Healthcare Series, Medical Indemnity National Data Collection Public Sector 2006–07. ¹² The report contains information on the allegations of harm that give rise to claims against medical practitioners, the people affected by such claims and the amounts, lengths of time and modes of finalisation of medical indemnity claims. In the 2006–07 reporting year, 4100 claims against medical practitioners were current. In 27% of the finalised claims no payment was made and no defence or claimant legal costs were incurred. Fifty-five per cent of claims (1218) resulted in a claim of under $10 000 and in 83% the total claim (including legal costs) was less than $100 000. Approximately 4% of claims had a total claim of over $500 000. In relation to the mode of finalisation, almost half the claims were ‘discontinued’, two-thirds recorded as ‘settled other’ and one-fifth settled through ‘state and territory complaints processes’. Fewer than 5% of the claims were resolved through the ‘Courts’. ¹³ The data indicated:

As litigation has historically involved medical practitioners and the provision of medical services, it is not surprising that much of the research into the incidence of adverse events has focused on this sector of healthcare services. However, this is not to suggest that the incidence of such injuries is purely a medical issue. The fact that patients are injured as a result of treatments and procedures, or lack thereof, within the healthcare system is an issue of concern for all health professionals. As members of a healthcare team, all health professionals are potentially liable for the damage or injury sustained by a patient while under their care.

When a patient or client sustains damage or suffers an adverse event while under the care of a health institution or provider, he or she may wish to have the issues addressed without resorting to the legal system. While recognising that tort law aims to maintain the quality of healthcare through the threat of litigation, it must also be considered that it is often ineffective in the pursuit of this goal. A high proportion of negligent conduct never becomes the subject of a claim and, of those that reach the courts, the costs — financial, professional and emotional — are often high for all the parties involved.

The national Medicare funding arrangements prescribed the establishment of independent statutory bodies in every Australian state and territory in response to the increasing numbers of complaints lodged in relation to the care received by healthcare consumers in both the public and private sectors of the Australian health system. These bodies, initially established as independent complaints bodies have, in a number of jurisdictions, extended their roles to include a focus on the improvement of safety and quality in health. The relevant legislation is listed in Table 2.1.

In all jurisdictions, alternative dispute mechanisms have been created as a means by which consumers can have their complaints answered and resolved. And, with the exception of New South Wales, conciliation is the predominant mode of complaints resolution in all states and territories. In relation to the provision of some Complementary and Alternative Medicines (CAMs), consumer complaints may be directed to the Federation of Natural and Traditional Therapists. This peak body represents CAM professionals’ associations and provides an avenue for the resolution of complaints against practitioners in this area of health service delivery (refer also to Chapter 11, professional regulation and discipline).

The discussion below, while focusing on the Queensland Health Quality and Complaints Commission and the Western Australian Office of Health Review, provides an overview of the operation of a process which offers an alternative to the adversarial system. These authorities seek to resolve disputes between healthcare consumers and providers through investigation and conciliation. As the New South Wales Healthcare Complaints Commission is legislatively empowered to prosecute in relation to healthcare complaints it will also be discussed. Though the legislative requirements and processes for dealing with complaints, quality, safety and monitoring of health services differ between the jurisdictions, the legislation is consistent in establishing state and territory based independent statutory bodies to receive and act on complaints made about health professionals and healthcare institutions.

One issue related to the quality of healthcare provided relates to the ‘rights’ individuals have as citizens and as patients. However, unlike a number of countries Australia does not have a distinct Bill of Rights establishing individual human or civil rights or privileges. The Commonwealth Constitution refers to only a few human rights including voting rights, the right to freedom of religion, the right not to be discriminated against, and the right to trial by jury for serious criminal offences. Although, there are a number of statutes enacted at both federal and state level prohibiting discrimination on the grounds of marital status, sex, race, age and disability and legislation relating to privacy. There is also the Human Rights and Equal Opportunity Commission, established by the federal government, which is charged with the function of promoting, and inquiring into alleged breaches of human rights.

In recent years two jurisdictions, the Australian Capital Territory (ACT) and Victoria, have enacted legislation to specifically identify certain human rights, incorporating individual civil and political rights. ⁴⁰ The rights identified in the statutes include a broad array of concepts; for example, the recognition of the right to life, the right to privacy, and freedom of expression and movement. In relation to healthcare, the right to life in both statutes identifies that no individual may be arbitrarily deprived of life. The ACT legislation specifically states that this right applies from the time of birth. ⁴¹ The courts are to interpret any legislation passed by the ACT and Victorian governments in accordance with the human rights legislation. Should a court find that any legislation is inconsistent with the human rights legislation then it is to be reviewed by parliament.

In terms of ‘patient rights’, the Australian government has required states and territories to provide a patient charter of rights for public hospital patients since the 1993–98 Australian Healthcare Agreement. These ‘rights’ are not enshrined in legislation; they arise as an agreement between the ministers of the federal, state and territory governments. Despite the fact that all state and territory governments adopted patient charters, they were not consistent in content or implementation. In July 2008 Australian Health Ministers endorsed the Charter of Healthcare Rights (the Charter) for use in all Australian healthcare settings. The Charter identifies seven patient rights, including the right to access, safety, respect, communication, participation, privacy, and comment. The rights are expressed as statements; for example, the right to communication states that individuals ‘have the right to be informed about services and treatment’, and the right to participation states that individuals ‘have the right to be included in decisions and choices regarding care’. ⁴² It is important to note that while the Charter is not legislation, it expresses and incorporates a number of obligations health professionals owe patients under existing law, professional codes and employer policies.