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IN BRIEF OCTOBER
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In this article we review a Health and Disability report that looks at a case of inadequate ophthalmology care; a pharmacist who risks disciplinary proceedings for a dispensing error; and changes to the Midwife's register.

Health and Disability Commissioner report finds inadequate ophthalmology care

The Health and Disability Commissioner (HDC) has found two ophthalmology doctors and a District Health Board (DHB) breached the Code of Health and Disability Services Consumers’ Rights (the Code) in relation to the care provided to an eye surgery patient, Ms A.

In August 2013, Ms A underwent eye surgery. The procedure was performed by a senior ophthalmology trainee Dr B, under the supervision of Dr C. During the operation, Dr B inadvertently touched Ms A’s fovea with a surgical instrument. The eye’s fovea is responsible for sharp central vision and in this case Dr B’s actions caused irreversible damage to Ms A’s eyesight.

Ms A complained to the HDC and alleged that she did not consent to Dr B acting as the operating surgeon, that both doctors failed to administer the requisite standard of care during surgery, and did not disclose sufficient information after the surgery.

The HDC:

  • Found that Dr B and Dr C failed to obtain Ms A’s informed consent to Dr B acting as operating surgeon and that this amounted to a breach of the Code. Under the Code, Ms A had the right to be informed of, and decline, Dr B’s role as operating surgeon, and Dr C had the responsibility to ensure that Ms A was aware of Dr B’s intended role in the surgery and trainee status. 
  • Made adverse comment against Dr B for his damaging contact with Ms A’s fovea. The HDC considered that Dr B’s actions were ‘sub-optimal’, given the delicate nature of the procedure and the fact that Dr C had twice warned Dr B to stay away from the fovea during the operation.
  • Found that Dr B and Dr C had breached the Code in failing to ensure that sufficient information was disclosed after the adverse event. Despite the conflicts in evidence, the HDC found both Dr B and Dr C should have explained the incident more thoroughly to Ms A.
  • Found that Dr B had breached the Code in omitting to adequately record the incident in his clinical notes or disclose the incident to Ms A’s general practitioner. The HDC also criticised Dr C for failing to ensure this occurred.


The HDC recommended that Dr B and Dr C provide a written apology to Ms A and attend various training courses. The HDC also recommended that the DHB review its ‘Agreement to Treatment’ form, provide additional training for ophthalmology staff, and audit patient records in the ophthalmology department.

Pharmacist risks disciplinary proceedings for dispensing error

A pharmacist may face disciplinary action after another HDC report which found he had breached the Code in making and failing to disclose a dispensing error.

In October 2013, Mr A sought to collect a renewed prescription for his regular medication, cyclosporine (white tablets designed to treat patients following an organ transplant). A technician at the pharmacy, Mr E, erroneously gave Mr A cyclophosphamide, a chemotherapy drug which comes in the form of pink tablets. This dispatch was later signed off by a pharmacist, Mr C.

Mr C discovered the dispensing error when Mr A enquired about the difference in appearance between the cyclophosphamide tablets and his regular cyclosporine prescription. Mr C did not inform Mr A of the incident, complete an incident report, or inform other staff at the pharmacy. Rather, Mr C told Mr A that the medication was a ‘discontinued product’.

The HDC:

  • Found that Mr C had breached the Code and had failed to perform his duty correctly by signing off the wrong tablets.
  • Made adverse comment about Mr E for his dispensing error, but accepted that ultimate responsibility for the error lay with Mr C.
  • Found that Mr C breached the Code in failing to disclose his error to pharmacy staff or Mr A. By omitting to inform Mr A about the dispensing mistake and instead reassuring him that the incorrect medication was a discontinued product, Mr C had not provided the information a reasonable consumer would expect in the circumstances.


The HDC recommended that Mr C provide a written apology to Mr A. Mr C’s case was referred to the Director of Proceedings, who will now determine whether proceedings should be brought against Mr C.

Changes to Midwife’s register to take place

The Midwifery Council of New Zealand (the Council) publishes an online register of midwives in New Zealand. The register contains a range of information including the name of the midwife, the town in which they practice, whether they have a current practising certificate, and whether there are any conditions on their practice.

The register is designed to help expectant parents choose a midwife. In March 2015, the Council agreed to amend the register to include all names that a midwife had practised under.

This change was triggered by a Blenheim midwife who was found to have provided sub-optimal treatment by the Human Rights Review Tribunal in February 2015. When treating a 16 year old patient, the midwife failed to provide services with reasonable care and skill, failed to comply with relevant legal and professional standards, and omitted to provide services in a manner that minimised risk to her patient. On one occasion, the midwife advised the patient that she could reduce the pain from a perineal tear by being ‘ladylike’ and keeping her legs together.

The midwife is now practising in Northland under a different surname. However, the midwives’ name (as recorded in the Human Rights Review Tribunal decision) does not appear in the register.

In March 2015, in an effort to improve transparency, the Council agreed to amend the register to include all possible variations of a midwife’s name. The register has not yet been amended. In response to criticisms regarding the delay, the Council said it had limited staff and the change to the register is due to be implemented at the end of September 2015.

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