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Patients During Health Strikes: Allies Or Weapons?

Patients During Health Strikes: Allies Or Weapons? Speaking Orthopaedic

Address To The Hospital And Community Dentistry Conference

AUCKLAND, 26 JULY 2008

IAN POWELL

EXECUTIVE DIRECTOR

ASSOCIATION OF SALARIED MEDICAL SPECIALISTS

I have always appreciated the opportunity to address your Conferences because of both my appreciation for the work that you do and because it provides an opportunity to reflect on various matters wherever possible around a theme. This address was originally going to be completely different covering subjects such as government performance in health, National’s health policy, clinical networks, and an interesting World Health Organisation background paper outlining the arguments for investing in health systems. In particular, health spending should not be seen as a drain on the economy but rather an investment in the health of the population and economic growth.

However, this all changed with the recent Health & Disability Commissioner’s decision on the Neurosurgery unit in Dunedin Hospital and the consequential debate on the right to strike. After reading about his decision I decided that I needed to amend this address. After reading the decision I decided that I had to completely rewrite it.

The views expressed below are my own although I do not believe they constitute a substantive departure from or contradict Association policy. I can indicate now that you should anticipate criticisms of the following—DHB national leaders, those unions clustered around my namesake and (non-relative), and, at the greatest risk of all, the Orthopaedic Association. For a long time I have believed that one has to be bilingual in the health sector. Two languages are critical—English and orthopaedic. I also learnt from student politics days many years ago always to wear a back-shield.

The Great MECA Stoush

When I spoke to you last year in Nelson we were in the middle of our unprecedented national stopwork meetings. They followed an impasse in our efforts to renegotiate our national multi-employer collective agreement (MECA) negotiations.

DHB innovation at its best

In a moment of great strategic wisdom the DHBs put a person with a military background in as their advocate with the objective of sorting us out. Innovative thinking ran amuck. His first actual proposal to us was, for a three year deal, a pay cut in the second year! Next, he proposed claw-back counter-claims largely around the theme of disempowerment, de-professionalism, and managerialism. In areas such as time for non-clinical duties, eligibility for sabbatical and consultation rights, they sought to erode professional empowerment and enhance managerial prerogative.

This cognitive capacity continued with the response to revelations of the loss of specialists to Australia and the increasing costs of locum employment by their advocate that the balance between permanent appointees and locums was about right. This was from the Chief Executive whose main contribution to his own DHB was to convert retention stability into retention instability and make it increasingly locum dependent. Ironically, he later departed the country in dramatic circumstances after the discovery by the media that he had been ‘two timing’ in Canada as a consultant for and then Chief Executive of a British Columbian health authority. Compounding the level of probity and insight was the further discovery that for his services he also received from his DHB a salary increase in the vicinity of $60,000!

Strategically moving towards a settlement

However, life moves on. Our stopwork meetings attracted unprecedented attendances, rejected outright the DHBs position, and authorised the ASMS to conduct a membership ballot on limited industrial action should the impasse continue. The impasse did continue and we then held the ballot in November on industrial action that would have excluded acutes and emergencies (in other words, cases that could not be deferred without risks to patient safety). Given the way a number of our members had spoken out against the five day resident doctors’ strike in June 2006 (a failed strike in my view) we were surprised with the 88% vote in favour.

Rather than proceed to the next step of giving the DHBs formal notification of strike action we instead waited to see how the outcome of the ballot would be received. We wanted to see whether the ballot would provide additional leverage.

The net result was that it did. First, the political phones rang. Then new Health Minister David Cunliffe made an unprecedented offer of facilitation to be completed within a month, something that he was prepared to make public as well. The proviso was that we would put on hold our issuing of strike notice to the DHBs and see what the facilitation produced. We accepted. As an aside I can also say that he made a similar offer to the Resident Doctors’ Association in my presence but this was not taken up, an unwise call in my view.

This eventually led to a provisional agreement endorsed by our members in an indicative postal ballot with an identical mandate to that in the earlier strike ballot, including a similar response rate, and then subsequently ratified by our National Executive in early May. The 88% vote in favour of acceptance, or at least its size, was surprising given that the email traffic and other feed-back suggested a much closer result.

The specifics of the settlement have been previously reported. There are three fundamental questions for assessing whether a proposed settlement should be accepted:

1. Does it advance sufficiently in the direction that we want to go with particular reference to fiscal entitlements (each settlement is a building block for the next)?
2.
3. Does it erode or enhance the professional rights and values of those we represent?
4.
5. Does it enhance managerialism or managerial control over those we represent?
6.
The answer to the first two is yes and no to the third although there will always be legitimate debate, especially over the specifics of the first question (I’m sufficiently long in the tooth to understand that while money is not the only important thing, it is well ahead of whatever is in second place). In reference to the other two the obvious point to note is that the aggressive and professionally insulting counter-claims of the DHBs were all gradually and eventually withdrawn. But there are two very important features of the new MECA.

Independent Commission on Competitive Terms and Conditions

The first, and most immediately significant, probably decisive in the ballot, is the acceptance of the ASMS proposal for an independent commission into competitive terms and conditions of employment for senior doctors and dentists in the context of a sustainable pathway to addressing recruitment and retention. The Commission is established by government, ASMS and DHBs, and under the official auspice of the Director-General. The terms of reference have been agreed (we are happy with them). The Commission, whose personnel should be confirmed soon, is to report to the three parties by 31 March 2009, and its recommendations are expected to provide the basis of the negotiations and settlement of the next MECA once the new one expires 13 months later.

What is unique to this commission is that the terms of reference specifically include international comparisons, including by name our greatest threat, Australia. The Health Minister himself has stated publicly that it will look at international realities. Relativities have been an uncommon feature of industrial relations for around 20 years. Where they have come into play they have been domestic (eg, primary and secondary teachers, nurses and police).

The commission is now the ASMS’s top priority. It is a rare opportunity that may not occur again in the next 10-20 years or so. It is not bound by government funding parameters and, given the severity of our workforce situation, should come up with sound recommendations that will require government to provide additional monies if they are to be implemented.

Just as this is an exciting opportunity for us, so it should be for DHBs. We hope that they will display a positive attitude and acknowledge to the commission that New Zealand does have a serious medical and dental workforce problem even if they don’t wish to use the ‘C’ word, crisis. Unlike collective agreements their approach to the commission should not be constrained by fiscal constraints but rather adopt a broader approach. That is, in the broad sense of the term, what should the ‘rate for the job’ be in order to be able to recruit and retain a clinically viable quality senior doctor and dentist workforce in DHBs? This includes the ability to compete against Australia for those we seek to recruit internationally noting that New Zealand has the highest proportion of overseas trained doctors in the OECD.

The gains for the health system and patients are immense if DHBs approach the commission positively and not from a negative or narrow position that is so often evidenced in negotiations. Indirectly, it has the potential to take the heat out of the resident medical officers situation in that the more competitive the terms and conditions for the seniors, the greater the capacity to retain the high quality but exportable juniors that we train. The commission provides a watershed opportunity. Given all this there is no good reason why the DHBs and ASMS should not sing from the same song sheet.

‘Time for Quality’ and engagement

The second feature is the incorporation into the MECA of the engagement principles of the agreement reached between the Minister of Health, ASMS and DHBs called ‘Time for Quality’, an agreement that is expected to be formally signed soon by all three parties. This is the outcome of a protracted promotion of a health professional leadership approach that the ASMS has been advocating for some years but ran up against laissez faire procrastination by former Health Minister Pete Hodgson. Fortunately, Procrastination Pete was replaced by Boy Wonder David who, with a cry of ‘Holy Fix-it’, demonstrated a much more responsive and positive attitude and gave it the urgency and priority it deserved. I can say without qualification that Mr Cunliffe is the best health minister we have ever had…since Annette King.

The premise behind ‘Time for Quality’ is simple; that quality is central to the delivery of health services and standards of patient care, that health professional leadership is critical to the provision of quality, and that the key resource health professionals need to provide quality is time. Within it key engagement principles are identified, one of which is specifying that health professionals are to provide the leadership in the design and configuration of services with managers cast in a support role. This principle and the others are replicated in the MECA.

If the commission on competitive terms and conditions can provide the basis for addressing recruitment and retention, then ‘Time for Quality’ provides the basis for utilising a sufficiently recruited and retained workforce that can significantly improve the cost effectiveness and efficiency of our health system in a way that enhances accessibility, quality and sustainability.

It is fascinating how quickly things change. For much of our MECA negotiations we were confronted with aggressiveness, hostility and questionable tactics of misrepresentation and distortion from the DHBs. Now love is in the air! As if the past months of ‘war’ had never happened, we are being courted in a way that we never have before. This is evidenced in practical cooperative ways such as our expeditious and satisfactory agreement over rates of pay during the two recent RMO strikes and agreeing between us on the recommended composition of the independent commission to the Director-General. It remains to be seen whether this is the dawn of a new era or simply a biblical one night stand. How the DHBs approach the opportunity provided by the independent commission and whether they sing from the same song sheet as us will be a key indication.

The Right to Strike: Are Patients Allies or Weapons

As someone for whom the principles of unionism run in my blood I have always supported the right to strike as inalienable. Negotiating with one’s employers is not a level playing field. Because a central aspiration of negotiations is the parting by the employer of more money to their employees and possibly increasing employee influence at the workplace, in the absence of any other leverage employers can often simply say no. Without the right to additional leverage employees are in the weaker position and often employers are prone to take advantage of this. This is especially the case in the health system where DHBs have been prepared to take advantage and exploit professional commitment to patients.

In the case of senior doctors and dentists they have worked on and exploited the premise that this workforce would never take strike action, notwithstanding a successful localised strike in South Canterbury five years ago. The outcome of our strike ballot late last year changed all this. As well as a surprise for the ASMS it was a powerful wake-up call for both DHBs and the government.

I have absolutely no doubt in my mind that had we not been prepared to take strike action and had we not received such a strong membership mandate to proceed down this path, we would not have achieved the settlement we did including the independent commission and the ‘Time for Quality’ engagement principles. It is not whether one takes strike action that is of critical importance but that the right exists and there is preparedness as a last resort to exercise it. Without this right our and other settlements, including nurses, would have been lesser.

Health & Disability Commissioner’s decision on Otago neurosurgery case

However, with every right there is a responsibility. Our best supporters are patients and the wider public. One does not treat and respect patients as an ally when they are used as a weapon. It is in this context that the recent Health & Disability Commissioner’s report on neurosurgery in Dunedin Hospital needs to be considered. That report raises critical issues about how the right to strike is exercised. In this case, fortunately not a fatality (but certainly a scary close call) it involved a strike by medical radiation technologists represented by the APEX union.

On 18 November 2006 a patient was admitted to the emergency department at Dunedin Hospital. The neurologist concluded that he needed an MRI head scan but based on the DHB’s advice also concluded that it fell outside the agreed life preserving services plan. Within 24 hours the patient’s condition had severely deteriorated leading to an urgent MRI and then urgent surgery, all within three hours.

This was a case in which the admitted patient’s condition was considered by the specialist to be urgent and requiring hourly observational recording but still did not met the threshold for diagnosis under the life preserving services plan.

The Commissioner recommended that the Minister of Health ‘review this report and consider what action could be taken to ensure better protection of patients during strikes’. He dismissed the complaint against the Otago DHB and observed that ‘the wrong party is in the dock’, a barely disguised reference to APEX. This has led to predictable, understandable but over-reactive calls for ban strikes by DHB staff, something not actually called for by the Commissioner.

Some important factors need to be considered in this case:

• The DHB felt pressured by an APEX claim that it had breached the life preserving services agreement during an earlier strike. Consequently, it adopted a narrow application of life preserving services.

• The agreement provided for APEX to approve whether additional support was required for patients in situations such as this and the agreement also required for all other available alternatives to first be considered (eg, private hospitals).

• One of the Commissioner’s two expert clinical advisors concluded that under the agreement if the MRI scan had not shown a serious or progressive diagnosis then the DHB may have been in breach of the agreement.

• No criticism was made by the Commissioner (or his expert advisors) of the medical staff involved who in invidious circumstances made the most accurate diagnosis possible. Their position was ‘impossible’.

• The medical staff were dealing with a patient who was not initially a life threatening clinical state but with a recognised potential to deteriorate into a life threatening situation. Prospectively, it could not be said that the patient’s situation met the criteria of the plan but retrospectively it was the case.

• One of the clinical experts observed that this strike produced ‘an extraordinary threat to patient safety and to the ability of clinicians to be able to practise an appropriate standard of medicine.’

• The life preserving services plan was highly prescriptive over the various steps to be taken leaving limited scope for autonomous professional clinical discretion and judgment.

The Commissioner concluded that in situations of delicate clinical decision-making that frequently arises during strikes of these types, DHBs must ensure that patient safety is the paramount consideration even if at the time it potentially might mean breaching the life preserving services agreement.

In my opinion the Otago DHB took too narrow an approach on the application of the life preserving services agreement. While the Commissioner is critical of the DHB’s approach his criticism was not to the extent of making a finding against it. My sense is that the Commissioner may have been a little light in his criticism. However, it is true that the DHB was placed in an intensely difficult position characterised in part by an environment of brinkmanship and in similar circumstances many other DHBs may have responded in the same way. I also agree that a finding it against would have been a harsh call under these circumstances.

Despite this particular case it is important to recognise that most unions have demonstrated that alongside rights go responsibilities. The health unions affiliated to the Council of Trade Unions (specifically the ASMS, Nurses Organisation, PSA, and Service & Food Workers) were critical in reaching agreement with DHBs and government over the need for life preserving services plans to be agreed in the event of strike action (before this there was nothing). This became known as the ‘consensus code’ of good faith and it was clear that life preserving services included risk of permanent disability. Much of the consensus code then formed part of the legislative amendment to the Employment Relations Act in 2004 in the form of a schedule called the health sector code of good faith.

However, while the intention was clear that life preserving services included risk of permanent disability, there was enough ambiguity in the legislation for this to be taken advantage of in the laboratory strikes that commenced in 2006. At that time the ASMS was critical of DHBs for not taking a firm line on this and insisting that the plans must include risk of permanent disability. But they blinked in the context of brinkmanship. In response the CTU (with the ASMS at the forefront) quickly again reached agreement with the DHBs and government over a further amendment which removed any ambiguity on this point.

One month after this incident but without knowledge of it the health sector code of good faith was amended to include as part of the definition of life preserving services the following:

• crisis intervention for the prevention of permanent disability;

• care required for therapeutic services without which permanent disability would occur; and

• urgent diagnostic procedures required to obtain information on conditions that could potentially lead to permanent disability.

Employment Relations Authority steps in

In my view equally as important as the Commissioner’s decision is a decision in July 2007 of another statutory body, the Employment Relations Authority set up under the Employment Relations Act. It involved APEX taking a case to the ERA against the Capital & Coast DHB, challenging it for acting on the advice of a radiation oncologist to seek further diagnosis for a patient in October 2006 during another strike. In particular, APEX claimed first that the DHB’s request for life preserving services during the strike did not meet the criteria and, second, the DHB had not fully informed the union of events and kept it out of its internal review. The first claim was withdrawn after the first day of the two day hearing and the ERA ruled in favour of Capital & Coast on the second. The ERA felt compelled to note that APEX’s National Secretary, while a qualified medical doctor had not worked in a hospital since her first year as a registrar over a decade ago. Presumably, this was to contrast with the far greater and contemporary experience of the radiation oncologist.

The patient was under the care of a radiation oncologist who was ultimately responsible for any radiation therapy provided by radiation therapists. At the time of the strike she had been treating the patient for about six months. The patient was admitted to hospital because of evidence of bleeding and, because of the circumstances, the specialist concluded that she could have a major haemorrhage as a result of cancer(s) expanding. The specialist was unprepared to take the risk of even a 24-hour delay. The DHB requested the support of the union delegate on site and this was provided. Subsequently the delegate had doubts and raised them with APEX who then took the case to the ERA.

It is impossible to see what good reason APEX had to take the case given that the decision to seek diagnosis was based on the best expert clinical advice available. Although vindicated by an independent internal review (and upheld by the ERA) the specialist had to face even more distress than that provided by the strike itself. In my view the case to the ERA was little more than an attempt, by focusing on this particular specialist, to intimidate and pressure our members who are placed in these situations through no fault of their own in order to enhance industrial leverage in the very difficult area of diagnosis. And yet it is only our members (and DHBs) that are investigated by the Health & Disability Commissioner.

Of great importance is the concluding statement of the ERA that ‘it is necessary to take a very broad view of what constitutes life-preserving services’. Further, ‘a decision made to invoke the Life Preserving Services Agreement is in effect a medical decision (albeit with a legal overlay) and is thus better decided by Medical Specialists, who can give practical effect to the intent of the parties under their agreement.’

Contrasting unionism with bargaining agents

I am confident that the ASMS and the other CTU health unions have demonstrated by our actions the responsibility that runs alongside the right to strike. We were critical to the development of the legislative requirement for life preserving services plans and to its subsequent improvements.

It is worth noting that in our case the ASMS came very close to taking strike action to the point of having determined the dates and draft notification letters to the DHBs ready to go. But we were insistent that, in the event of proceeding. patient safety would not be compromised. First, rather than the statutory minimum of two weeks, we would have given at least eight weeks notice to DHBs of the strike dates and other details. This would have meant that patient activities such as clinics and lists would not have to be cancelled because they would not have been scheduled in the first place. Second, cases that should not on clinical advice be deferred (primarily acutes and emergencies) would be excluded from the action. While by statute there would have to be life preserving services plans, these would have been notional at most.

The difference in approach between the CTU-affiliated health unions and the others in many respects goes back to the environment created and encouraged by the now repealed Employment Contracts Act in the 1990s. That essentially anti-union legislation encouraged advocates for employees to see themselves as bargaining agents. The essential difference between bargaining agents and broader based unionism is that the former focuses on what it can scratch out of the system while the latter focuses on what it can put into it (this in no way means ceding the importance of negotiating enhanced terms and conditions of employment). Not to put a fine point on it, I believe that those unions who embark upon strike action that drives into the core of non-deferrable patient care are more like bargaining agents than unions. It is noteworthy in my view that they are all administered and management by the same private company with intertwined contractual and commercial arrangements.

So much stems from whether, intentionally or otherwise, explicitly or implicitly, one sees patients as allies or weapons in an industrial dispute. Either approach is generated by quite different values and sets off quite different sets of behaviours. Regardless of motivation, seeing patients as weapons is an inevitable consequence of a bargaining agent approach whereas the broader unionism approach sees them as natural allies. It is important to appreciate that the bargaining agent approach is not necessarily any more assertive and strident than broader unionism. In the right circumstances assertiveness and stridency can be justified; it is their form that is the issue. Quite aside from professional ethos and values, strikes that risk compromising patient safety do not advance the particular employees’ cause. Intended and actual strikes that don’t compromise safety can.

Bargaining agents behaving badly

The fact that DHBs have been behaving badly in negotiations particularly since around 2006 is no excuse for adding patients to the weaponry. They behaved badly in our negotiations but this did not shape our approach to the form of strike action to be undertaken. At the time of the incident addressed in the Health & Disability Commissioner’s decision, the DHBs may have behaved badly towards APEX. Given who was providing their strategic industrial relations leadership at the time, they most certainly did behave badly. But this is still no excuse.

If strikes go too far and push the parameters unduly in the realm of non-deferrable patient care and if they become ritualistic, inevitably DHBs will react. DHBs might be led by people who do foolish things but they are not fools. DHBs have not learnt that much on how to settle difficult negotiations but they have learnt that they can survive strikes that push the safety parameters. They know that the five day strike in 2006 by RMOs largely collapsed towards the end even though the DHBs were at the time pushing an aggressive control agenda. They now know that even two day strikes are difficult to sustain given the relatively high and increasing number of RMOs who worked in the April and May strikes.

Banning strikes? Compulsory arbitration?

Using patients as industrial weapons has led to the unhelpful call for an end to strikes by health professionals. While it does seem that DHBs have been dominated by strikes, this has to be kept in perspective. While the ASMS, PSA and Service & Food Workers Union have planned to or have taken strike action (and the Nurses were at one point contemplating it), despite representing the overwhelming proportion of the DHB workforce none of their actual or intended actions did or would have compromised safety. The overwhelming majority of actions have come from the bargaining agent type unions in situations where strikes were in many cases arguably justified because of the approach of the DHBs. But the form of these actions, especially in the area of diagnostic services, has risked compromising safety.

The only system of arbitration available in legislation (‘final offer’ in the Police Act) is arguably the most conservative known. It was proposed by DHBs during our stopwork meetings last year because it would favour their conservative position. It is based on an arbitrary inflexible ‘winner takes all’ approach based on winning on all the disconnected criteria. It is guaranteed to leave an aggrieved party. It is not designed to address major problems such as recruitment and retention difficulties. Whether or not it is suitable for the police, given the nature of their work, is not for me to comment. But it is too rigid for a complexity based sector which includes a range of highly specialised and stratified occupational professional and other groups.

The most effective way to provide an arbitration system in the health sector at least would be to return to a detailed relativity based system somewhat similar to the ‘rate for the job’ legislative structure New Zealand had up until the late 1980s except that in today’s economy it would have to be further adapted for international relativities. The political prospects of this are remote and we should not be rejecting what we have until know what we are going to.

I respect the concerns of the President of the Orthopaedic Association, John Matheson. He certainly would have been badly shaken from his own experiences in Otago DHB and he is well aware of the issues behind the Health & Disability Commissioner’s neurosurgery decision at his own hospital. His call for strikes to be replaced with compulsory arbitration is understandable although I would be surprised if the proportion of orthopaedic surgeons who voted against industrial action in our ballot was markedly different from the 12% of our members from all branches of medicine.

But three important considerations need to be taken into account in considering this call from him and others. First, some times these patient safety intrusive strikes are not the only factor that impact on the stress on clinicians and the safety of patients. Workforce shortages are another factor as appears to be the case in the latest case in Wellington Hospital’s emergency department which was affected by the combined factor of both. Second, there is not an alternative system of arbitration available and suitable for the health system. Third, removing the right to strike is even more likely to threaten patient safety because of the considerable strengthening of DHBs’ bargaining position that would consequentially occur and their more often than not state of denial over the severity and precariousness of the workforce situation in DHBs.

Defending the right to strike from all comers

Without excusing at all the DHBs’ performance in industrial relations over the past couple of years, the inalienable right to strike is being undermined by bargaining agent type behaviour.

We must not allow this right to be undermined. The right to strike is critical to achieve workforce stability and confidence within DHBs. Settlements important for pursuing an objective of recruitment and retention would not have been achieved without it even when not actually exercised. The stark reality is that in the medium to longer term (arguably even the short-term) the absence of fair and competitive terms and conditions across the DHB workforce risks a recruitment and retention crisis that will do much more harm to patient safety than patient punitive strikes.

We need to treat the Health & Disability Commissioner’s decision as a wise wake-up call. It is not an attack on the right to strike. Rather it is an attack on the use of patients as a weapon in the exercise of that right. It is possible to have effective strikes that affect volumes but don’t involve patients as weapons. Some patient inconvenience may be unavoidable but this need not threaten patient safety. Both the cases considered by the Health & Disability Commissioner and the Employment Relations Authority were clearly ones that the potential risks to patients were such that further diagnosis should not have been deferred.

It may well be that the December 2006 amendment to the health sector code of good faith on risk of permanent disability along with some more recent refinements will address the Commissioner’s concerns. But it is incumbent on the government, CTU health unions (including the ASMS) and DHBs to consider through their improving tripartite working relationship how the statutory right to strike can be fairly, reasonably and safely reconciled with the statutory code of patient rights. The insightful lead provided by the Employment Relations Authority, drawn upon approvingly by the Commissioner, may provide the basis for this.

The right to strike must be defended against all those who undermine it, including those who use it in such a counter-productive manner. It is the DHB workforce that is harmed the most by undermining the right to strike. The paradigm of bargaining agents is too narrow to appreciate this point. Further, as a union, we have to be prepared to defend the interests of our members who are placed in an untenable position when strikes encroach into non-deferrable care and when they are subjected to inexcusable stress and pressures somewhat akin to bullying.

As a cricket fanatic I’m fond of quoting the famous West Indian cricket commentator (as well as social and political commentator), CLR James who once said what do they know of cricket, those who only cricket know. If he was alive today he might now say what do they know of strike action, those who only strike action know.

I’ll end this address now and await the clanging sound of knives hitting my back-shield.

ends

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