When is a doctor prohibited from speaking out?

Share this with your doctor friends. The facts are not yet common knowledge, but they should be.

So as you folks know, last week I was asked to meet with management to discuss my speaking out about various unfortunate political decisions that I believe have negatively affected public healthcare provision in our country.

I was invited to bring a support person, which is never a good sign.

I was asked to talk about my public comments regarding Dargaville becoming a “doctorless hospital” at night and on weekends, and the challenges that entails for nurses and patients when crises occur…

And about an interview where I was asked about the dozen hospital rebuilds being selected (‘red listed’?) by the current government to be potentially put on ice because the money has been spent on other priorities…

And about whether a decrepit 70-year-old hospital in a badly underserved region deserved to be rebuilt, or mothballed, while taxbreaks worth millions are going to even the richest of millionaire property investors, and while hundreds of millions of dollars of taxpayer money are set aside to go to a tobacco company which sells illness and death, and profits from harm.

I will not mince words: I think these decisions are disgusting.

And the last issue I discussed was a big one, the idea that the current government is an austerity government bent on underfunding and understaffing the public sector and essential public services, led by the very wealthy men who have personally profited from the privatisation of New Zealand public healthcare in the past.

And further, the idea that public services may be being intentionally defunded and destabilised to deliver enormous profits to private, for-profit, corporate healthcare owners.

#privatisation

But let's forget the political decisions for minute and only talk about

Doctors Speaking Out, and The Law.

What CAN doctors say publicly?

The answer might surprise you.

But first, I'll start off with what the contract law definitely does NOT say:

It does NOT say that a public doctor cannot speak out.

It does NOT say that a public doctor has to first seek permission from their employer to talk about…anything.

It does NOT say that a public doctor has to inform an employer when they are going to do an interview or be mentioned in the media.

And it certainly does NOT say that an employer has the right to censor, restrict, limit, or influence the freedom of speech of a doctor.

In fact it says quite the opposite.

The employment contract between the government and public specialist doctors (called the SECA) says a doctor can say what they believe to be true, as long the issue has been raised with Health NZ managers. (And obviously as long as it isn't malicious or harmful to patients.)

Fair enough.

It would not be right to blindside an employer by talking to the media about a problem which management was completely unaware of.

So essentially:

A) The doctor has to make sure that their concerns have been shared with Health New Zealand/management. Happily, everything I have discussed was well within the public sphere of knowledge.

It's worth mentioning one other requirement, that is so basic it should go without saying; a healthcare worker should never ever ever reveal information that would enable the identification of a patient.

This should be dreadfully obvious to any healthcare worker, but I'll say it here for thoroughness. The trust that a patient has in their doctor should be sactrosanct.

Doctors are trusted by patients during their darkest hours, and that implicit trust must not be violated.

(Even though the system does, quite reasonably, allow for that trust to be violated in specific cases if the patient or another persons's life is at risk, and sadly it does allow that trust to be violated if the patient applies for something like private health insurance, which requires a release of information…which shows you the penetration of corporate profit-seeking into the doctor-patient relationship. Horrid.)

Going back to issue A).

It is not incumbent on the individual doctor to raise the point with management. Only that management ‘has been informed’. Take dangerous ‘nurse understaffing’ as a current, and very relevant example.

A concerned doctor does not have to notify management about dangerous ‘nurse understaffing' every time they speak publicly, assuming the NZ Nurses Organisation or the public doctors’ union, the Association of Salaried Medical Specialists, or someone else, already has. (And trust me they have!)

The management merely needs to be aware and informed that there is a problem.

This actually applies to everything I speak about-- none of it is a secret. And certainly none of it is privileged information. In fact, the majority of it has been discussed on the pages of RNZ, the Herald, and other media publications already. Common public knowledge.

The other important issue is:

B) The doctor must make it clear that they are speaking in their “private capacity”, not as a spokesman for their hospital or their speciality or Health New Zealand/Te Whatu Ora.

The take-home message for me is to make it clear that I am speaking in my Private Capacity not just once during an interview (as I always do) but repeatedly.

I do not think you can emphasise this issue enough. It is why I avoid referring to myself as a doctor at a ‘X’ hospital. Only as an “emergency doctor” or a “Northland emergency doctor”.

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Now, management may suggest to you that you must get permission from them to speak to media.

You absolutely do not have to.

Management may suggest to you that you should not speak to media.

That decision is yours alone.

Management say may suggest to you that you must inform them prior to speaking to media.

That is incorrect.

On this last one, it is worth quoting the Medical Council of New Zealand, the authority that controls a doctor's medical licence.

They make it crystal clear that the doctor's primary obligation is to two equally important groups :

An obligation to the wellbeing of their individual patient. And an equal obligation to the well-being of patients in general.

Those are shared primary obligations.

All other considerations ethically come secondary to the “primacy” of that first obligation. No employer’s rules should ethically stand between the patients’ safety and well-being, and their doctor.

It could not be more clear.

A doctor does not just have the option of saying things, and doing things, to work for the safety and well-being of their patient and of patients in general…

Doctors in New Zealand have an ethical *obligation* to do so!

As you read the Medical Council ethics statement, you understand that being a doctor is not just a job, it is a venerated and and hallowed social role stretching back millennia. If there is anyone in the world that should be helping patients advocate for themselves, it is us, their physicians.

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So if you want a clear and simple message on the legality of talking to the media which you can send to all of your doctor friends, I've put several hours of worried reading of the employment contract and the Medical Council's many ethical statements into 4 simple rules.

1) OBVIOUSLY, never give personally-identifiable information about patients. That's just a no-brainer. You have a trust as a doctor that is sacrosanct.

2) Make sure the problem you are discussing is one that Health New Zealand management is already aware of.

If not, have your union or speciality college inform them first. Or do it yourself.

If they are already aware of the problem, because it's been widely and openly discussed by politicians and managers in the media, for example, consider this requirement satisfied.

3) Always say explicitly that you are speaking in your “personal capacity”, not on behalf of employer. Then repeat it, for good measure.

4) And lastly, understand that if you follow Rules number 1-3 above, that you are not only *allowed* to publicly and openly discuss problems that affect patient care or patient safety, you are *ethically obliged* to do so.

It's essential that the public understands both the good and the bad that occur within the public health system. After all, the public are the ones served by the public healthcare system, (at times their lives may in fact depend on it), and they're the ones that pay for the health system through their labour and their taxes.

There is a public need to know when the system is good and when the system can be made better.

“In the public interest” certainly applies to our essential public services. No non-disclosure statement supersedes that for a doctor taking care of a patient, who is concerned about patient safety.

It is up to us to speak up when things go right AND when things can be made better.

Our voice as doctors working within the public sector is second only to the voice of our patients.

Fellow Doctors: Be brave, be honest, speak up, do not be intimidated, and let's all work to make the system better and stronger for New Zealand patients.

-- Dr Gary Payinda, emergency doctor

[Post-script:

In retrospect, while I would not want to have to do it over again, I would like to thank the honourable people in that room for what turned out to be highly meaningful, enlightening, and worthwhile discussion. With specific gratitude to my union’s knowledgeable director, Sarah Dalton.]