Life Preserving Services Guide

Transcription

1 DHBSS LPS GUIDELINES Life Preserving Services Guide The purpose of this document is to provide DHBs with guidance on the interpretation of the LPS provisions, LPS agreements and the Code of Good Faith for the Public Health Sector (Schedule 1B to the Employment Relations Act 2000, the Code of Good Faith) during periods of industrial action. The key guiding principles are set out below. In the right hand column are some brief comments designed to assist with practical application. DHBs need to balance their obligations under the Code of Good Faith with the rights of their patients under the Code of Health and Disability Services Consumers' Rights (the Code of Rights), in particular Right 4 "Right to Services of an Appropriate Standard". Principles 1. The DHB has legal obligations to ensure that services of an appropriate standard are provided to patients. Right 4 of the Code of Rights provides: Every consumer has the right to have services provided in a manner that minimises the potential harm to, and optimises the quality of life of, that consumer. 2. The DHB has a legal obligation under the Code of Good Faith to provide for patient safety. Clause 11 of the Code of Good Faith provides: During industrial action, employers must provide for patient safety by ensuring that life preserving services are available to prevent a serious threat to life or permanent disability. 3. The starting point is that any request for LPS relates specifically to an individual patient s situation. The questions are: "does the particular patient meet the LPS criteria?" and "is it necessary to call on the union to provide LPS because of the particular patient s needs?". 1. The DHB's obligations under the Code of Rights are not suspended during a strike, although the strike will be a relevant circumstance in considering whether what the DHB did was adequate. 2. The Code does not stipulate how LPS are to be made available. It is the role of the DHB s contingency planners to determine, in conjunction with the National Contingency Planner (NCP) what LPS is required and for the DHB to negotiate that with the union via DHBSS and the NCP. 3. Start with the patient s needs; and ask whether the patient meets the LPS criteria. The key principle is that the clinician responsible for the patient decides on the basis of the patient s presentation and need. Resources are assessed with a call for LPS being the last step. DHB Shared Services Life Preserving Services Guide 1

2 Principles 4. The LPS agreement may provide examples of categories of patients that fall within the LPS definition. Any request for LPS, though, is relevant to the individual patient. DHBs are not constrained by the categories mentioned in the LPS agreement, but by the patient s clinical need at presentation. 5. The definition of Life Preserving Services is (clause 3 of the Code of Good Faith): a. Crisis intervention for the preservation of life; b. Care required for therapeutic services without which life would be jeopardised; c. Urgent diagnostic procedures required to obtain information on potentially life threatening conditions. d. Crisis intervention for the prevention of permanent disability. e. Care required for therapeutic services without which permanent disability would occur: or f. Urgent diagnostic procedures required to obtain information on conditions that could potentially lead to permanent disability. 6. Diagnostic procedures can be categorised as urgent if the procedure is required to obtain information on potentially life threatening conditions or conditions that could potentially lead to permanent disability. When considering the urgency of the need for a procedure, consideration should be given to what would normally happen. Is it reasonable for the procedure to wait? Potentially means having the capacity to develop into something in the future the possibility of something happening or someone doing something in the future. Interpret potentially in a way that is consistent with the purpose of the Code of Good Faith: to protect patient safety during industrial action through the use of striking staff for LPS situations where no other option is available and where the activity can not be deferred. 4. The individual patient s condition at the time the request is made is what is relevant. LPS requests should be made where the criteria is met. 5. Is the procedure required urgently, or can it, and would it normally wait? What would happen during a public holiday period, for example? The condition does not need to be actually life threatening, but potentially life threatening. It needn't be certain that the condition will lead to permanent disability. Permanent disability should be interpreted as a physical, intellectual or sensory impairment that would have a lasting impact. 6. Interpret this consistently with the DHB's obligation to protect patients and the urgency inherent in the definition. Potentially life threatening is sufficient; as is a condition that could potentially lead to permanent disability. potential means the possibility of something happening. District Health Board Life Preserving Services Guide 2

3 Principles 7. The DHB must take all reasonable and practicable steps to ensure it can provide LPS during the strike. This will include reducing demand, transferring patients, using other providers, using alternative treatment regimes, delaying or deferring treatment, and using any other mechanism normally employed by a DHB in its normal business operation. Only when none of this is possible can the union be called on to provide LPS. 8. The duration of the strike, and whether the request is at the outset or close to its conclusion, will be relevant. 7. Is it possible to defer or delay treatment, or make/use other arrangements? If so, this should happen. The approach applied by the DHB will probably be comparable to that taken during public holiday periods, or the DHB's usual emergency management process, but will need to recognise the nature and duration of the strike. 8. It may be less safe to start treatment/care during a strike than to wait until after the strike. What may not have been urgent at the start of the strike may become urgent as the strike continues. 9. The LPS agreement and the LPS framework generally must be interpreted in accordance with the Code of Good Faith s purpose of ensuring the safety of patients. 10. Individual clinicians should interpret the LPS agreement and the Code of Good Faith safe in the knowledge that their interpretations, if subsequently subject to scrutiny, will involve the particular LPS request being measured against what was reasonable in the particular circumstances with that particular patient. The particular circumstances will include: the time available to make the decision, the patient s condition, access to alternative services, clinical practice options, and the paramount principle of patient safety. Any criticism of the LPS request after the event will fall on the DHB. The DHB will only be criticised if the request for LPS was unreasonable. 9. Where there is any doubt about a request, clinicians should err on the side of patient safety. 10. As noted above, err on the side of patient safety (but ensure that other reasonable steps or alternatives have been explored). District Health Board Life Preserving Services Guide 3

4 Principles 11. If a clinician is concerned about a request, if time allows, it would be prudent to discuss the request with a colleague or an appropriate manager. The DHB's contingency plan may identify an individual who will advise on requests, consider alternative options and refer a request for LPS to the union. 12. The LPS agreement may include a provision that allows the DHB to request more assistance from the union than currently arranged should any unforeseen event occur. An unforeseen event may include, but will not be limited to: those working falling sick or being absent from work for some other legitimate reason; breakdown in equipment; unexpected unavailability of other providers; unexpected/unforeseen demand which exceeds the resources available or provided for in the contingency plan. Each agreement contains a protocol for emergency management in accordance with 12(5)(c) of the Code of Good Faith. 13. Outside of the LPS agreement, DHBs can request dispensations from the union. For example where clinicians conclude that the LPS criteria is not satisfied, but where the failure to treat a patient significantly impacts on the patient s quality of life or where there is some other compelling reason to request a dispensation. 14. A breach of the LPS agreement may be a breach of good faith, which the union could pursue against the DHB. Clinicians may be called on to justify the reasonableness of their requests. 15. Where there has been a clear breach by a DHB of the LPS agreement, the DHB should acknowledge the breach to the union as soon as possible. 16. There are significant ambiguities in the Code of Good Faith which lead to variations in possible interpretations. 11. Clinicians should thoroughly document the patient s condition at the time and the clinical details in full. 12. Additional requests for LPS can be made where an unforeseen event occurs which imparts on the ability to provide LPS. For example, if non-union workers that the DHB intended to rely on fall sick. 13. DHBs should consider requesting dispensations from the union where the LPS criteria are not satisfied, but there are other compelling reasons why a patient should be treated. 14. Clinicians can take comfort that it is the DHB as an organisation, rather than individual clinicians, that will respond to criticism for LPS requests. 15. Identify the reason for the breach and explain any action taken as a consequence. 16. Interpret ambiguities in a way that ensures patient safety comes first. It is important to recognise the rights of health workers to strike and at the same time consider the ethical principle of do no harm. District Health Board Life Preserving Services Guide 4

5 Life Preserving Services Adjudication The purpose of this document is to provide DHB personnel involved in a dispute with a union about the LPS required during a period of industrial action with some guidance on the adjudication process. The key guiding principles are set out below. In the right hand column are some brief comments designed to assist with practical application. Principles 1. The bargaining process agreement (BPA) contains agreement to the Clinical Adjudicator for any disputes on LPS. The Code of Good Faith requires a DHB and a union to meet, negotiate in good faith and make every attempt to reach agreement about the extent of the union s assistance to provide life preserving services during a period of industrial action. The meeting, and attempts to reach an agreement, must take place as soon as practicable after the DHB has made a request to the union, and no later than four days after the date of the notice of industrial action. If the DHB and the union cannot agree about the extent of the union s assistance to provide life preserving services during a period of industrial action, adjudication is the mechanism to resolve the dispute. The matter must be referred to adjudication within five days after the date of the notice of industrial action. 1. After strike notice has been issued, the DHB has until close of day the next day to request LPS. The DHB and the union have four days from strike notice to meet and negotiate about LPS. In practice, the parties may not meet in person, but will negotiate LPS by phone, fax and . If the parties can't agree, refer the matter to adjudication. Closely monitor timeframes and make sure the matter is referred to adjudication within five day s from the date the strike notice was received. 2. Adjudication is the formal process to resolve disputes between DHBs and unions about the extent of life preserving services required during periods of industrial action. The adjudication process is set out in clause 13 of the Code of Good Faith. 3. The adjudicator must be a clinical expert or other suitable person (clause 13(1) of the Code of Good Faith). 2. Advise the adjudicator, and the union, that you wish to refer the matter for adjudication. 3. Provide relevant information supporting the DHB's request for LPS In most cases, the DHB and the union will have agreed on the adjudicator well before the notice of industrial action is issued through the BPA. District Health Board Life Preserving Services Guide 5

6 Principles 4. The adjudicator must rule on the matters set out in clause 12(5) of the Code of Good Faith: a. the extent of the life preserving service necessary to provide for patient safety during the industrial action; and b. the number of staff necessary to enable the employer to provide that life preserving service; and 4. In practice, adjudicators are senior DHB clinicians. Most bargaining process agreements identify the adjudicator (ie the adjudicator is appointed at the outset of bargaining). c. a protocol for the management of emergencies which require additional life preserving services. The jurisdiction of the adjudicator is limited to these matters and "to any issue strictly necessary to ensure the effective operation of the employer's contingency plan". 5. The adjudicator may need to interpret the meaning of the phrase life preserving services in the context of a particular period of industrial action. The adjudicator should also be guided by the obligation on the DHB to ensure patient safety by ensuring LPS are available. 5. The DHB can refer to the Employment Court decision in APEX v The New Zealand DHBs [2013] NZempC 3 Gatekeeper and conduit issues would be within the adjudicator's jurisdiction to the extent they are necessary for the effective operation of the contingency plan. The nature of LPS and the particular type of skilled personnel required would be within the adjudicator's jurisdiction. A work first/question later arrangement would be within the adjudicator's jurisdiction to impose. Issues that do not directly affect patient safety (eg payment) or which are raised as a matter of preference or convenience would not be within the adjudicator's jurisdiction. The DHB can also refer to the national Ethics Advisory Committee publication the Ethical Principal of do no harm and Industrial Action. District Health Board Life Preserving Services Guide 6

7 Principles 6. The adjudicator has a broad discretion to conduct adjudication in the manner he or she sees fit. However, the Code of Good Faith (clause 13(2) provides the adjudicator must: 6. The importance of patient safety should be emphasised during adjudications. a. receive and consider representations from the parties; and b. seek expert advice if he or she considers it necessary (in consultation with the parties) c. attempt to resolve any differences between the parties to enable them to reach agreement; and d. if it is not possible to enable the parties to reach an agreement, make a determination. The parties may put clinical evidence before the adjudicator (depending on the expertise of the adjudicator, this will sometimes be necessary). District Health Board Life Preserving Services Guide 7

8 Principles 7. If the adjudicator can facilitate the parties coming to agreement, either during the adjudication or afterwards, there will be no need for the adjudicator to determine the matter. Failing that, the adjudicator will determine the matter. 7. Usually, due to the tight timeframes and urgency, the adjudication will be by teleconference. The usual process will be: introduction from the adjudicator; opening statements on behalf of each party. Usually the party who has referred the matter to adjudication will go first. Lawyers may be involved if present, or the statements may be made by contingency planners or senior clinicians, or a combination of each of these people; initial questioning by the adjudicator; and more dialogue if need be, with the union testing the DHB s requests or the adjudicator exploring whether there is room for the parties to reach agreement. If you would like a different process, or a break to discuss matters offline, ask the adjudicator. 8. The adjudicator must provide the determination as soon as possible, but not later than seven days after the date of notice of industrial action. 9. The adjudicator s determination is binding. The parties must use their best endeavours to give effect to the determination. There is no right of appeal against the adjudicator s determination. However, the determination of the adjudicator would technically be open to judicial review. 8. Often the adjudicator expresses his or her views, or proposes an alternative option, and that is accepted by the parties. 9. In practice, unless the adjudicator needs more time to consider the matter or to hear from an expert, the determination will be made during the adjudication. District Health Board Life Preserving Services Guide 8

9 Principles 10. If you have any concerns or questions about the determination, or what you think the adjudicator might determine, ask the adjudicator before the adjudication has concluded. Practically, because of the tight timeframes associated with the adjudication and industrial action, judicial review is unlikely to be realistic. District Health Board Life Preserving Services Guide 9

10 Essential steps in days before industrial action Day(s) Action Reference 0 Strike notice received in writing that specifies a. the period of notice, being a period that is no less than 14 days b. the nature of the proposed strike, including whether or not the proposed action will be continuous; and c. the place or places where the proposed strike will occur; and d. the date on which the strike will begin. 0 As soon as notice of industrial action is received or given, an employer must develop a contingency plan and take all reasonable and practicable steps to ensure that it can provide life preserving services if industrial action occurs. 1 A request to the union seeking the union's and its members' agreement to maintain or to assist in maintaining life preserving services must be made by the close of the day after the date of the notice of industrial action. 2-4 Not later than 4 days after the date of the notice of industrial action, the union and DHB must meet and negotiate in good faith and make every reasonable effort to agree on (a) the extent of the life preserving service necessary to provide for patient safety during the industrial action; and (b) the number of staff necessary to enable the employer to provide that life preserving service; and (c) a protocol for the management of emergencies which require additional life preserving services. An LPS agreement reached between the parties must be recorded in writing. 5 If the parties cannot reach they must, within 5 days after the date of the notice of industrial action, refer the matter for adjudication by a clinical expert. 7 The adjudicator must provide a determination to the parties as soon as possible but not later than 7 days after the date of notice of industrial action. Employment Relations Act s90(3) Code of Good Faith for Public Health Sector Clause 12(1) Clause 12(4) Clause 12(5) Clause 12(6) Clause 13(1) Clause 13(2)d District Health Board Life Preserving Services Guide 10

11 Life Preserving Services Code of Good Faith for the Public Health Sector (relevant excerpts) Schedule 1B to the Employment Relations Act Application (1) This code applies to the following parties to an employment relationship in the public health sector: 2 Purpose (a) district health boards: (b) employees of district health boards: (c) unions whose members are employees of district health boards: (d) other employers to the extent that they provide services to district health boards or the New Zealand Blood Service: (e) employees of the employers referred to in paragraph (d) to the extent that they are engaged in providing services to district health boards or the New Zealand Blood Service: (f) unions whose members are employees referred to in paragraph (e): (g) the New Zealand Blood Service: (h) employees of the New Zealand Blood Service: (i) unions whose members are employees of the New Zealand Blood Service. The purpose of this code is (a) to promote productive employment relationships in the public health sector: (b) to require the parties to make or continue a commitment (i) to develop, maintain, and provide high quality public health services; and (ii) to the safety of patients; and (iii) to engage constructively and participate fully and effectively in all aspects of their employment relationships: (c) to recognise the importance of (i) collective arrangements; and (ii) the role of unions in the public health sector. 3 Interpretation In this code, unless the context otherwise requires, industrial action means a strike or a lockout District Health Board Life Preserving Services Guide 11

12 life preserving services means (a) crisis intervention for the preservation of life: (b) care required for therapeutic services without which life would be jeopardised: (c) urgent diagnostic procedures required to obtain information on potentially life-threatening conditions: (d) crisis intervention for the prevention of permanent disability: (e) care required for therapeutic services without which permanent disability would occur: (f) urgent diagnostic procedures required to obtain information on conditions that could potentially lead to permanent disability 4 General requirements (1) In all aspects of their employment relationship, the parties must (a) engage constructively; and (b) participate fully and effectively. (2) In their employment relationship, the parties must (a) behave openly and with courtesy and respect towards each other; and (b) create and maintain open, effective, and clear lines of communication, including providing information in a timely manner; and (c) recognise the role of health professionals as advocates for patients; and (d) make time to meet as and when required i. to address not only the industrial issues between the parties but also issues facing the public health sector, the employer, and the employees; and ii. iii. to search for solutions that will result in productive employment relationships and the enhanced delivery of services; and to ensure that any change is managed effectively; and (e) recognise the time and resource constraints that may affect their ability to participate fully, and make allowances for those constraints. (3) To enable employees and their unions to comply with subclause (1), employers must ensure that appropriate steps are taken in their workplaces to encourage, enable, and facilitate employee and union involvement. (4) The parties must use their best endeavours to resolve, in a constructive manner, any differences between them. (5) Subclauses (2) to (4) do not limit subclause (1). District Health Board Life Preserving Services Guide 12

13 Patient safety 11 General obligation for employers to provide for patient safety during industrial action During industrial action, employers must provide for patient safety by ensuring that life preserving services are available to prevent a serious threat to life or permanent disability. 12 Contingency plans (1) As soon as notice of industrial action is received or given, an employer must develop (if it has not already done so) a contingency plan and take all reasonable and practicable steps to ensure that it can provide life preserving services if industrial action occurs. (2) If an employer believes that it cannot arrange to deliver any life preserving service during industrial action without the assistance of members of the union, the employer must make a request to the union seeking the union's and its members' agreement to maintain or to assist in maintaining life preserving services. (3) The request must include specific details about (a) the life preserving service the employer seeks assistance to maintain; and (b) the employer's contingency plan relating to that life preserving service; and (c) the support it requires from union members. (4) A request must be made by the close of the day after the date of the notice of industrial action. (5) As soon as practicable after the employer has made a request but not later than 4 days after the date of the notice of industrial action, the parties must meet and negotiate in good faith and make every reasonable effort to agree on (a) the extent of the life preserving service necessary to provide for patient safety during the industrial action; and (b) the number of staff necessary to enable the employer to provide that life preserving service; and (c) a protocol for the management of emergencies which require additional life preserving services. (6) An agreement reached between the parties must be recorded in writing. 13 Adjudication (1) If the parties cannot reach agreement under clause 12(5) they must, within 5 days after the date of the notice of industrial action, refer the matter for adjudication by a clinical expert or other suitable person as agreed under clause 8. (2) The adjudicator must conduct the adjudication in a manner he or she considers appropriate and must (a) receive and consider representations from the parties; and (b) in consultation with the parties, seek expert advice if the adjudicator considers that it is necessary to do so; and District Health Board Life Preserving Services Guide 13

14 (c) attempt to resolve any differences between the parties to enable them to reach agreement and, if that is not possible, make a determination binding on the parties; and (d) provide a determination to the parties as soon as possible but not later than 7 days after the date of notice of industrial action. (3) The parties must use their best endeavours to give effect to the determination. (4) The parties must bear their own costs in relation to an adjudication. District Health Board Life Preserving Services Guide 14