There is a Robert Thaves cartoon in which a dishevelled- looking defendant says to the judge: “I know I have a right to a lawyer, but I’m in enough trouble already.” It’s a humbling cartoon, and a reminder that all my files should be horizontal (working towards an outcome) not vertical (generating paper for no progress). So, what is the relevance of all my ruminations to the readers of New Zealand Doctor? Humour me – I will get to it.
Last year, I wrote about the harm caused by an illconsidered apology (New Zealand Doctor, 8 November 2017). Worse still, though, are the ill-advised responses (or those with no advice) I have seen over the years, some of which have led to avoidable prosecutions, others requiring considerable unravelling.
I have yet to meet anyone, in any of the professional accountability fields in which I work, who has lamented spending too much time on a response. There are plenty who regret the reverse. As the holiday period often sees an increase in complaints (maybe encouraged over the Christmas turkey), I suggest some tips for responding to a complaint, and where advisers can make a difference.
1. Deal with the complaint – ignoring it because you feel aggrieved by its lack of merit, or terrible about what happened, won’t make it go away. Responding on time (if the time given is reasonable) reflects well on you as an organised professional.
2. Addressees should respond – if the complaint is addressed to the practice, then the practice – rather than any individual(s) – should respond, but ensure what is said on behalf of staff is accurate.
3. Think risk – just because a letter from the health and disability commissioner (HDC) says it is taking no further action or is referring the matter to you directly, this does not mean this is an end to the matter. Anything you write should be considered a document you could be cross-examined on. You should take the same care responding directly to a complainant as you would if responding through the office of the HDC.
4. Write one response, and get it right – do a one-stop shop response. Those of you who have been around a while will be conscious that the promise of a one-stop shop, rather than multiple inquiries, is a promise that has been eroded over time (New Zealand Doctor, 14 December 2016). That said, you do not want to have different versions of your response/report going to the coroner, HDC, Medical Council, the ACC and the media. Prepare one response that can go to any of these bodies or be added to for those bodies. When you do this, you protect yourself from one thing lawyers love doing, which is cross-examining on the differences in documents.
5. Identify the issues – start by working out what is being complained about. Sometimes, this is not clear. You are entitled to go back to the HDC for more specific detail on what that office intends considering. On other occasions, there may be extraneous gripes or references to others’ perceptions, which you believe to be complete fabrications. Not correcting an untruth can lead to a perception you agree with it; conversely, debating the point can be inflammatory. In these cases, I recommend picking your battles. If the difference of account is central to the complaint, you need to address it with care. If it is extraneous, explain in the response that you are answering the identified issue, not every point (so a failure to deny is not, later, a problem for you).
6. Reply from an informed basis – do not respond until you have every bit of information about the case in front of you. Responding from memory because you have moved practices and don’t have the notes is a recipe for disaster. This is because saying something that is contradicted by the paperwork diminishes credibility. It is important to remember you are in the lawyers’ world now – it is about being the most credible, rather than simply telling the truth being enough.
7. Think about all of the possible readers – write to answer the complaint, communicate with lay people, Clinical insights from GPs and specialist contributors impress with your logic and consideration, reassure an expert and avoid statements that could be seized on in cross-examination.
8. Be thoughtful not reactive – always think about your response overnight, then revisit it the next day.
9. Consult, consult – always ask advisers to review and comment on the response. Ideally, the advisers will include a health professional practising in your discipline and a lawyer with many years of experience of appearing in court, tribunals or inquests, who is aware of the unintended ways reports can be interpreted, to avoid this happening to you. You do not want to wait until being cross-examined to find out (as one doctor put it to me) how differently lawyers and doctors are wired. When I advise a client on their response, I ask questions like:
• Do you think you should mention this blood test result as well?
• I read this sentence as meaning [xyz]…is this what you intend?
• You and the complainant don’t agree about [xyz] – is there anything else you can mention that shows why your memory is likely to be more accurate?
• Is there someone I can get a statement from now while events are still fresh in everyone’s mind?
• Are these notes of your usual standard…do you think we should explain their brevity, etc? If your adviser only adds a comma here or there, think about asking another person to look at the response as well. In my experience, every response can be made clearer and more accessible to readers.
10. Exhibit your professionalism – volunteer what you could have done better, but ensure this is safely expressed, particularly if there has been a patient death, where competent advisers will always have – at the back of their minds – possible criminal proceedings. Mention any peer review and feedback or recognised standards you complied with.
In conclusion, my best wishes for the coming year to members of a profession I greatly admire, and thank you for your ideas and feedback on this column.
Gaeline Phipps is a barrister with Lambton Chambers in Wellington. If there is an issue you would like addressed in this column, please email your request to gphipps@ professionallaw.co.nz