Calder at large: Matters of life and death

It doesn't look much like a judicial proceeding - the geometry of the chair arrangement is all awry, for one thing - but it is as serious as any court hearing and more sombre than most.

At St Joseph's Mercy Hospice in Auckland, 15 people crowd into a dayroom, a space not much bigger than a respectable lounge, for a special hearing by the Medical Practitioners Disciplinary Tribunal.

But the person chairing proceedings is not the centre of attention. Everyone faces a woman propped up in a bed in the corner. She looks wan and tired, as well she might. She is dying.

Her eyes droop at moments and she remarks at one point that "this medication is making me so groggy." But she is determined to say what she needs to say while she still has the chance.

In the event, it's her husband who reads the affidavit of Colleen Poutsma, reaching out to turn the pages of the copy in his wife's shaking hands. The 47-year-old Paihia woman, whose complaint to the Health and Disability Commissioner culminated in a charge of disgraceful misconduct against Northland specialist Graham Parry, asked to appear before the tribunal because - the sad fact is never mentioned directly but the air in the room is thick with the knowledge of it - she may not survive until the tribunal meets to consider the charges early next month.

Arrayed along the wall, the five members of the tribunal listen intently. Only when one occasionally issues an instruction about the conduct of proceedings is it plain that she's in charge.

Her authority is exercised firmly, but almost invisibly. And there is no sign that she is finding the moment difficult, even harrowing.

But just the day before, Wendy Brandon, who chairs the tribunal which sits in judgement over the country's erring doctors, made it plain that she would be steeling herself for the challenge of hearing evidence from a woman at death's door.

Wendy Brandon is a lawyer, a battle-hardened commercial litigator who did an exhausting tour of duty in the apparently endless Equiticorp saga. But she feels passionately about the importance of the law in protecting the powerless damaged by the powerful.

She knows what it is to act for the dead and the shamefully injured - she represented the Cave Creek families and Morgan Jones, the small boy who fell from a poorly maintained viewing platform on a TranzRail train.

But Wendy Brandon, an Aucklander who was the tribunal's deputy chairperson from when it was established in July 1996 and took the chair a year ago, has also breathed deeply of the air outside legal chambers. She nursed at Middlemore in her early years ("Nurse Barker was the matron and Ron Moodie ran the hospital and I'll tell you what, it was a pretty well-run hospital") and she and her first husband farmed in the Bay of Plenty before she went to law school.

As a lawyer with a history of interest in medico-legal cases - and a postgraduate degree in ethics - she must have seemed a logical choice to chair the tribunal.

She is conscious of the weight of the hat she wears. While she might, by background and inclination, tend to feel an instinctive sympathy for the victims of medical misadventure and malpractice, she must discharge her duties - overseeing a tribunal which includes three doctors and one lay member each time it sits - with scrupulous fairness.

Doctors are very aware of the importance of maintaining good clinical practice, she says.

"I think the shortcomings, if there are any, are in areas of understanding patients and communicating with them about their needs beyond the immediate clinical ones - the need to have your doctor treat you courteously, to explain things to you."

She is conscious, too, of the environment in which doctors work. The Cartwright report which followed the inquiry into the infamous "unfortunate experiment" at National Women's Hospital in the 1980s was a watershed in doctor-patient relationships in New Zealand.

But the changes wrought by that report's recommendations conflicted directly with the other major development in the health system in the late 20th century, the restructuring - or more precisely the several restructurings - of the health system to conform to a commercial model.

Wendy Brandon pronounces the latter development - and the continual resource shortages that have squeezed the health system to bursting point - "disastrous."

"I'm not saying it didn't have to happen, but there's been a difficulty created between the clinician and the patient.

Hospitals are run by managers now and the remaking of medicine as a business has created a dysfunction.

"It's irretrievable now. We have to work through it but we need to question it and see what we can learn from it."

Regardless of the outcome of the case Colleen and Jack Poutsma have brought, Dr Parry's name - like the name of Michael Bottrill, whose faulty pathology sparked the Gisborne cervical cancer inquiry - has assumed the power of alarm. It reminds us all that we place our lives in the hands of doctors when we place our trust in them. Their mistakes can kill, and it makes no difference, it gives no comfort, whether the errors are innocent and statistically inevitable or sloppy and unforgivable.

Wendy Brandon takes that on board.

"Doctors are people like the rest of us," she says. "They are subject to exactly the same influences and pressures as we are. By and large, I find doctors incredibly dedicated and hard-working.

"What's more, patients are incredibly forgiving of mistakes that really are mistakes. People forgive mistakes if doctors sit down and tell the patient what happened and help them through it."

She pauses for a moment, hoping aloud that "I hope I'm not sounding like an apologist for the medical profession."

"I'm a lawyer," she will say later. "Lawyers will always be outsiders from the medical profession."

The disciplinary tribunal is the ambulance at the bottom of a very high cliff, a fact that Wendy Brandon finds frustrating at times. And she is puzzled at the low number of complaints that end up as charges before her. Under the system used before the establishment of the Health and Disability Commissioner's office in July, 1996, the Medical Practitioners Disciplinary Committee was prosecuting more than 70 cases a year. The numbers of complaints have not dropped, but this year the tribunal has dealt with only five cases.

The explanation offered by the first commissioner, Robyn Stent, who stood down from the job in March, is that the new system has many more ways to satisfy patient disquiet than the old, including mediation services.

But the delays in procedure frustrate Wendy Brandon as well. Justice delayed is justice denied, she argues, and it concerns her that the Poutsma complaint against Dr Parry was laid with the commissioner in March 1998.

"We got the charge in July this year. I can get a multi-million dollar commercial litigation into court two weeks after I get [the brief].

"I think it's appalling that somebody who had a personal tragedy has to hang in there for two or or three years for their day in court."

Those delays concern Ms Stent as well. A report detailing her concerns and strategies for dealing with them, was tabled in Parliament a year ago. It remains untouched.

The fact that doctors still constitute a majority on each five-person tribunal does not concern the chairwoman. She and her lay colleague can be outvoted - "we just were on a name suppression issue," she says. "We wanted to publish the name and the three docs all said no.

"But it doesn't very often happen that when it's three to two it's the doctors versus the lay people In general, doctors are like every other profession. You tend to be harder on your own."

Coming face-to-face with the health system's most pitiable casualties, such as Colleen Poutsma, is a task which would make many quail. But Wendy Brandon says chairing the tribunal is "a terrific job."

"Yes, the stories are incredibly sad.

But I like people. I like the public service element, too. And I think I do the job very well."