New Zealand Law Society - Health Law in New Zealand

Health Law in New Zealand

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Reviewed by Dr Jonathan Coates

It may be said that a national failing of ours is, at times, an inflated view of the influence our small country has on the wider world. Our sense that we “punch above our weight” – that we contribute perhaps a little bit more than the average – might well reveal one of our great attributes (confidence and self-belief); but may also at times be seen by outsiders as being excessively smug – supercilious even.

At risk of being labelled smug (or worse), it can be stated that New Zealand legitimately stakes claim to first, playing a significant and substantive role in the international development of health law; and secondly, to having compatriots who have been, and remain, genuine international leaders and authorities in this area of law.

New Zealand’s unique status in health law terms largely originates from our no-fault Accident Compensation regime; almost eliminating clinical negligence litigation. Alternative mechanisms and regimes have sprouted: most obviously perhaps, the Office of the Health and Disability Commissioner, a direct result of the 1988 Cartwright Report into events at National Women’s Hospital. New Zealand’s 2003 Health Practitioners Competence Assurance Act was ground-breaking legislation for the regulation of health professionals.

In jurisprudential terms “health law” is a relatively new subject. It emerged as a distinct area of law in the 1980s. A defining, international moment was the publication in 1985 of Dunedin Professor Peter Skegg’s Law, Ethics and Medicine – a seminal work on medical law. Since that time Professor Skegg has undoubtedly been one of the leading international voices in medical law.

Professor Skegg’s credentials in health law are rivalled by Professor Ron Paterson. Professor Paterson, also, has made a remarkable contribution to health law – perhaps most noticeably in New Zealand as a highly influential Health and Disability Commissioner, leading many major health sector inquiries.

In 2006 Skegg and Paterson teamed up to lead and edit the first edition of Medical Law in New Zealand, the first substantive work on medical law in New Zealand since Dr David (now Justice) Collins’ 1992 text Medical Law in New Zealand.

Skegg and Paterson have now produced the second edition of their text, this one called Health Law in New Zealand. Perhaps unsurprisingly given their pedigree it is, again, a text of definitive quality; a work that health professionals, lawyers, and even the judiciary will be able to rely on, comforted in the knowledge that it is accurate, well-researched and insightful.

The text is not solely the work of Skegg and Paterson. The general editors draw on the sub-specialties of a number of other leading health lawyers, as well as contributing chapters in their own right.

The most obvious change from the earlier text is the broader material covered, as revealed by the change in title. Health Law in New Zealand includes a major new section on the law relating to public health, written by public health law specialist Louise Delaney. The text also has new chapters on access to health care, mental health and intellectual disability, human tissue and coroners. These are important and welcome inclusions.

It is clear from even a passing read of Health Law in New Zealand the extent to which the authors have traversed the sometimes significant bodies of relevant jurisprudence. Associate Professor Joanna Manning’s chapters on Treatment Injury (under the ACC regime) and Professional Discipline of Health Practitioners warrant particular mention given the sheer volume of court and tribunal decisions that are given in these jurisdictions.

Perhaps inevitably there are subjects that can only be touched on rather than traversed comprehensively. Topics such as mental health and intellectual disability – and perhaps to a lesser extent regulation of health care (and health practitioners) – can justify textbooks in their own right.

Health Law in New Zealand is the essential text for those who practise, study or are interested in health law. The challenge for the editors, and those who have supported them, will in due course be to maintain the momentum into a third edition and beyond.

Health Law in New Zealand, Thomson Reuters New Zealand Ltd, 978-0-864729-43-9, December 2015, 1,227 pages, paperback and e-book, $205 (GST and p&h not included).

Dr Jonathan Coates is a health law and health sector specialist. He is a partner in Claro, a specialist health sector law firm with offices in Auckland, Wellington and Christchurch.

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