Health Practitioners Competence Assurance Bill

I move, That the Health Practitioners Competence Assurance Bill be now read a second time. The Health Practitioners Competence Assurance Bill is about public safety. It is designed to protect the health and safety of the public by providing mechanisms to ensure the lifelong competence of health practitioners.

The bill has been in preparation for over 3 years, and has been the subject of much consultation and debate—in fact, so much so that at a recent conference on legislative drafting, the Parliamentary Counsel Office used it as an example of a process involving sound policy development and policy decision-making. Such an extensive consultation process provides the foundation of good legislation.

The Health Committee has now reported the bill back to Parliament after receiving and considering 265 public submissions. That was the final stage of the consultation process, and many of the recommendations made by submitters were accepted by the committee and have been incorporated into the legislation. I am happy to recommend to the House that it accept the committee’s amendments, subject to some technical changes. For example, the Health and Disability Commissioner recommends that only 3 weeks, not 3 months, is an appropriate period for a practitioner to respond to a complaint.

Issues are raised in the minority reports that cannot be substantiated, and, in some cases, even contradict previous stances. There is a focus on the concerns of the professions, with scant regard for consumer concerns. There is a claim that the bill is not based on the Medical Practitioners Act, which is acknowledged as a very successful piece of legislation. In fact, the Medical Practitioners Act was used by parliamentary counsel as the basis for drafting the Health Practitioners Competence Assurance Bill. There are 110 clauses, out of a total of 167 relevant clauses and the schedules, that are based directly on the Medical Practitioners Act. All the major concepts of the Medical Practitioners Act have been carried forward into the Health Practitioners Competence Assurance Bill, and have been adjusted where necessary to generic terms in order to provide a framework that can apply to all health practitioners, not just doctors. The basic principles of ongoing competence, separation of the registration process from the disciplinary process, and the declaration of quality assurance activities have all been carried through.

The Medical Practitioners Act required the Director-General of Health to review the quality assurance provisions after a 2-year period. The Health Practitioners Competence Assurance Bill incorporates the recommendations made as a result of the review in 1999. Also taken into account were the recommendations of the Health Committee in 2001, after considering the Medical Practitioners (Foreign Qualified Medical Practitioners) Amendment Bill in the name of the Hon Ken Shirley, and the petition of the Hon Nick Smith and 828 others. Both Mr Shirley and Dr Smith expressed concern about the operation of the Medical Practitioners Act. The Government undertook to address their concerns in the Health Practitioners Competence Assurance Bill, and we have delivered on that commitment.

There is a claim that the scopes of practice concept is new and untested. The Medical Practitioners Act, however, is based on scopes of practice. The Health Practitioners Competence Assurance Bill simply adapts the concept to express broad scopes of practice in generic terms that can apply to all health practitioners.

It is also claimed, based on the response to an Official Information Act request from the New Zealand Medical Association, that the Ministry of Health did no background work on scopes of practice. The response from the ministry actually was that it had no written papers, but all the background papers had already been made publicly available during the consultation process.

In a discussion document released in September 2000, the ministry sought comment on the concept of scopes of practice. Ninety-four percent of respondents supported the concept, provided that there was consistency between professions, and clarity on overlapping scopes of practice. These issues were addressed in the paper seeking Cabinet approval for the concept, and the Cabinet paper, with the background discussion document, were placed on the Ministry of Health’s website over 2 years ago. In its 2002 publication Nurse Practitioners in New Zealand, the Ministry of Health included a section “What is a scope of practice?”, much of which discusses the development of scopes of practice for nurse practitioners.

The Health Committee included a section on scopes of practice when it reported on Nick Smith’s petition in 2001. In this section, Dr Smith is quoted as believing that “specialist registration as a dermatologist in New Zealand is effectively a closed shop”. The committee expressed the view that the proposed Health Practitioners Competence Assurance Act, which would override the Medical Practitioners Act, could address the issue of highly specialised medical practitioners not being able to practise. The Health Practitioners Competence Assurance Bill provides for broad scopes of practice in most cases; however, after Mr Shirley and Dr Smith expressed concern about the inability of some overseas-trained doctors to register in order to practise in New Zealand, the Government undertook to introduce legislation that would allow a clinician with a limited scope of practice to practise in our country within that limited scope. The Health Practitioners Competence Assurance Bill delivers on that undertaking by allowing for a scope to be tailored for an individual in some circumstances.

To allow flexibility under the Act to accommodate future changes in technology and the delivery of health services, clinical decisions are the responsibility of the registration authorities, and may be adjusted through a transparent process without the need for legislative change. But the purpose of the bill is to protect the public. In return for the increased powers of professions in respect of clinical decisions, there are checks and balances to ensure that registration authorities are held accountable for complying with the Act, through the Minister of Health, directly to Parliament. One such check is that the Minister will appoint members of authorities after seeking nominations from professions and the public. This process will also ensure there is an appropriate mix of clinical skills, consumer interests, and gender and ethnic perspectives on each authority.

It is particularly curious that the ACT party is concerned about those powers, when in 2001 it was introducing legislation to take away some of the clinical decision-making powers of the Medical Council, and to give them to the New Zealand Qualifications Authority—a Crown entity appointed by the Minister of Education, and, again, accountable through that Minister to Parliament.

Notwithstanding the bill’s requirement that the Minister consult those people who are affected by the proposed list, there is a tension between the interests of health consumers and those of health practitioners, and I note that in the minority reports there is comment that submitters’ concerns have not been addressed. However, there is no reference to the fact that submissions from consumer groups supported the quality assurance activity as originally drafted. The committee sought to balance those two perspectives, and I compliment it on the recommended changes. The reporting requirement for a quality assurance activity is new, but these reports will help to demystify quality assurance and reassure consumers that the protection afforded practitioners is in the public interest. Similarly, they will provide the Minister of Health with the assurance that the public interest is being met.

On the issue of complaints processing, the committee recommended changes to clarify the two levels of charge in relation to professional misconduct, and I congratulate committee members on the new wording. I support their view that in fact all matters that get to the stage of a disciplinary hearing are likely to be serious, and that differentiation between degrees of seriousness is likely to be reflected in the penalty imposed rather than in the charge. The bill will not prevent professional groups from setting codes of ethics as they have traditionally done, and they will continue to do so, I am sure. But there is a distinction between the setting of such codes and the standards for ethical conduct on which professional conduct committees will need to make judgments under the Act.

The bill introduces a new mechanism for ensuring that medicines are distributed in a safe environment, by requiring operators of pharmacies to be licensed.

The Health Practitioners Competence Assurance Bill is innovative legislation that provides a framework for the regulation of health practitioners where there is a risk of harm to the public. It has gone through a thorough process of debate and discussion. Now it is time to make it law to ensure that practitioners registered under its provisions are competent to practise. At a recent medical law forum held in Wellington, a principal of Chapman Tripp Sheffield Young said the following in a paper presented to the forum: “The key to the success of the HPCA Act will be the implementation of variable scopes of practice, and whether the bill has achieved the right balance between risk and intervention so that the health sector and the public support the process.” I commend this bill to the House.

I am not surprised that the Hon Ruth Dyson gave the lead speech in this debate on this bill, because the Minister of Health does not want to be anywhere near it. It is my understanding that an assurance was given - certainly, to the Association of Salaried Medical Specialists - that this bill would not be in the House this week. The reason that assurance was given, and the reason that the National Party will not be supporting this bill, is that there are major problems with it. This bill, which has 272 pages, tries to be all things to all people, and does not achieve any of them. There are major concerns about this bill. This bill should not have been a political bill. It should not have had the New Zealand National Party, the ACT party, and the New Zealand First Party voting against it. This bill should have been about producing a standard for public safety in terms of our health professionals that all parties in this House agreed to. But that was not achieved, and I will outline some of the reasons why it was not achieved, and why the National Party will be voting against this bill.

Its aims are not ones that are not worthy. It aims to ensure that all health practitioners, be they nurses, doctors, dentists, occupational therapists, physiotherapists, or the others who make up the 11 groups included, are competent to practise and keep up to date through their practising life, and that there are appropriate disciplinary and investigative procedures in place when things go wrong. Those are worthy ideals. But this bill, which was supposed to be based on the Medical Practitioners Act 1995, is a far cry from that Act. The Medical Practitioners Act was very successful legislation, which made a huge difference to how medicine was practised in this country. It solved some of the problems of the previous 30 years.

When the Hon Ruth Dyson talked about Nick Smith’s petition, which was about a dermatologist who practised in Marlborough and Nelson, she mixed up concerns about how the profession decides on competence with concerns about this bill and scopes of practice. After the Medical Practitioners Act, the New Zealand Medical Council was able to register people like Dr Hornbeck, and was able to override some of the decisions of the colleges, but that had not been happening. The pressure that was put on by Nick Smith’s petition and the ACT member’s bill brought that to light, and from that time the Medical Council did override some of the decisions, and we did look at having more effective registration of some of our foreign doctors. So that is not a sound argument for the scopes of practice concept that is put up in this bill. It is a very new and untested concept.

The bill repeals 11 Acts of Parliament, and covers 55,000 professional people. National members will not be supporting it, because the Government has bitten off more than it can chew, and has failed to give proper, rigorous analysis to the new concepts it is proposing as it combines 12 professional groups. Those groups are chiropractors, dentists, dentitions, medical auxiliaries, doctors, nurses, occupational therapists, physiotherapists, opticians, ophthalmologists, pharmacists, and psychologists. They all come under this one piece of weighty legislation. Those groups have different levels of Acts of Parliament governing them at the moment. Some are as outdated as 1948.

Some among that group, like doctors, have modern, comprehensive legislation that they want to keep. Doctors in New Zealand want out of this bill. They do not want to be included under this bill. They want to stay under the Medical Practitioners Act, because they have huge concerns about how this bill will operate. They are under modern legislation that is working well, and they do not want to come under this legislation. That bill, which was introduced by National in 1995, was well consulted on. There was not disagreement about that bill, as there has been about this bill. It was well-thought-out legislation that solved 30 years of problems for doctors and for their patients. It improved patient safety in New Zealand, which is not to say that everything was perfect, but, all in all, that legislation did improve the situation markedly. There was appropriate registration of doctors, and ongoing credentialing of them through their working lives via continuing medical education; and quality assurance programmes developed and flourished in all our hospitals and health services.

Those quality assurance activities focused on systems failure. Thirteen percent of people admitted to hospital suffer iatrogenic harm. “Iatrogenic” means harm caused by the nature of a patient’s treatment—that is, the pills a patient takes, the treatment a patient receives, and the fact that the patient might have been exposed to hospital infection. Good quality-assurance ensures that mistakes, near misses, and systems failures are discovered and corrected, and that one has the ability to learn from mistakes. The Medical Practitioners Act also saw complaints against doctors treated in a very different way. After 1995 the Health and Disability Commissioner investigated all breaches of the code of rights, and all complaints.

I am pleased to see a one-stop shop developed in this bill; that is one of the things I have supported. There are problems with long delays in the processing of complaints, and we will support the amendment that provides that health practitioners have only 3 weeks in which to respond to the Health and Disability Commissioner. But, all in all, district health boards, doctors, and most members of the public now have more confidence in the medical profession and their hospitals, due to the Medical Practitioners Act.

Enter this bill, which bears little resemblance to that Act. The problems are scopes of practice, the power of the Minister, increased cost, ministerial appointments to registering bodies, quality assurance changes, lack of timeliness of complaint resolution, and cultural competence. What has the Government got right? There are some things that it has improved. I do think that some of the changes to the quality assurance processes will be an improvement. Also, some of the practitioner groups are under very old legislation, and this bill will be an improvement for them. If the Ministry of Health had consulted more widely—and by “consult” I mean actually listening, and changing things that the groups found unacceptable; not just giving those groups a lecture on what was going to happen—we would have a better bill before us.

Scopes of practice are a problem. Where is the intellectual and academic work on that concept? Nowhere. The concept has never been used in New Zealand or anywhere else. The New Zealand Medical Association made an Official Information Act request for the Ministry of Health to supply it with its papers on scopes of practice. What was the result of that? Nothing, because no work in a paper form had been completed. It seems that two of the policy sector groups had had a conversation about scopes of practice. Well, that is not good enough for New Zealand. We really do not have a clear understanding of what scopes of practice will mean. Two people in the ministry thought it up. We have already had Annette King endorsing nurse anaesthetists in two speeches. The Minister will have the right to decide on the scopes of practice for these professional groups. One cannot consult on a concept that is not defined until it appears in a bill. As no one is too sure how those scopes will operate, there is widespread concern, especially from the 10,000 doctors and 50,000 nurses. Will the scopes be wide? Why are they not using educational achievement and attainment? What is going to happen when there are disputes? Then there are the problems with ministerial powers. There are many other problems with this bill, which I outlined before and I do not have time to go into all of them. They need to be sorted, but not just in the Committee stage; they should have been sorted earlier. The National Party will not support this bill.

I welcome the opportunity to speak to this bill. I should mention that New Zealand First will not be supporting it, as has already been indicated in the minority report shared with other parties from this side of the Chamber. That said, I want to say at the outset that the intent of the bill is laudable. I have no argument with the concept of this proposed legislation—ambitious as it might seem. Unfortunately, what is now being presented to this House is a far cry from what was originally introduced. The protection of health consumers is of paramount importance, and the regulation of health practitioners is a vital and necessary component of that protection. However, there are aspects of this bill that are quite disturbing, and after hearing submissions from interested parties, I am not alone in having serious misgivings about features of this bill.

Let me start by looking at the word “competence”. How is that defined, and how will it be assessed? The rationale for its non-inclusion is that standards change and vary between professions. But could not consideration have been given to a standard level clause? The definition in clause 5 of the bill describes the required standard of competence as being “the standard of competence reasonably to be expected of a health practitioner practising within that health practitioner’s scope of practice.” Nowhere in that definition is reference made to patients. Surely patient outcome should be mentioned somewhere in that definition, if not as the central component.

As for the term “health practitioner”, who qualifies as a health practitioner and who does not? What are the implications for groups such as ambulance drivers who apply medical procedures but are not deemed to be health practitioners, or audiometrists who might be put out of work if the provision of hearing services is limited only to audiologists? What of the health practitioners who fail to register because the compliance costs are too high? Will this bill create an underground health system comprised of unregistered practitioners providing lower-cost health care to patients who cannot afford the registered practitioner? The concept of scopes of practice is confusing, untested and a potential area of conflict amongst professionals. The Minister of Health is given too much power over health professionals in this bill, which could be used to exert undue influence over a profession. These are some of the issues that need to be addressed before I would consider lending my support to this bill.

I have already mentioned compliance costs, and I would like to look at that issue more closely, because I think it will be a major issue for some health practitioners. Take, for example, a self-employed podiatrist working in a suburban clinic, treating the feet of mostly elderly patients, some of whom can barely afford the consultation fees. This person is making a living now, but by the time all the overheads are taken care of, there is not a lot of excess cash left. As well as registration costs, this legislation could see that person having to spend thousands of dollars on equipment, and that might be just enough to tip the balance between that person having a viable business and tossing it in, or working underground because it is just too hard to make a go of it. Surely that is not the intent of this bill. Let us take a reality check—health professionals are not all wealthy doctors on high salaries. There are thousands of self-employed practitioners out there who are battling along, trying hard to keep their heads above water. Let us not forget about them.

The concept of scopes of practice is one that is likely to cause confusion and conflict. As I mentioned earlier, this model is ill-defined and ill-tested. It is considered by many to be a failure in the only other area that has implemented it—the Canadian province of British Columbia. As yet it is unclear how disputes between professions with overlapping scopes of practice will be resolved. An example of that conflict is the alarm being expressed by doctors trained in the administration of anaesthetics at the suggestion that registered nurses be allowed to prescribe and administer anaesthetic drugs. That proposal is consistent with other policies, such as the introduction of independent midwifery, and changes to the Medicines Act allowing health-care practitioners other than doctors to prescribe medicines. Those changes save money, but at what cost to the well-being of patients?

Without wishing to belittle the training and professionalism of those in the nursing profession, I wonder why anaesthetists undergo a minimum of 13 years of extensive training, first in medicine and then in specialised training, only to be told that a nurse with considerably less training will be able to undertake their duties. A lot of them are wondering too. I bet a lot of patients will be wondering why on earth we will be controlling their anaesthesia at a time when they are actively suspended between life and death. If decisions such as these are left to the Minister, how can we be sure that intense lobbying and pressure by interest groups will not influence the outcome? To leave everything in the final analysis to the Minister is anathema to democratic processes and smacks of Big Brother. It also leaves the Minister open to charges of manipulation and corruption.

Another concern I have with how scopes of practice will actually work in practice is that the concept seems to be trying to achieve two separate things. One is registration or standard-setting, and the other is credentialing or certification of individuals within standards. I feel that this issue has not been thought through properly, especially as they are entirely separate facets of the Medical Practitioners Act, with registration happening under the auspices of regulations set out in that Act, and credentialing happening individually in the work domain.

I think we need to be careful here that two separate matters are not being merged into one because of confusion and of lack of consultation as to how things operate in the real world. I feel that the medical profession already gets pretty bad press for its handling of adverse events and complaints against it. People have become quite cynical over time when they see doctors policing themselves, with only the most glaring cases of incompetence being prosecuted. Even then the practitioners seem to get off very lightly compared with the victims, some of whom die due to wrong diagnosis and treatment, or in some cases, wilful mistreatment.

This bill does nothing to inspire confidence that complaints will be dealt with in a fair and transparent way, or that the interests of patients will be given centre stage. The focus of this bill is not on the consumer, but rather on the provider. The power to investigate complaints and control the process will be given to the tribunal. From the outset, this adversarial approach does not engender faith in the system. On the contrary, it sets up an environment of hostility and weariness between health professionals and consumers, undermining the trust that is so essential in such a relationship. Correct me if I am wrong, but this bill seems to limit the avenues available to consumers who wish to lay a complaint, and it seems to be most concerned with protecting the practitioners from the possibility of any fallout from complaints from consumers.

What has set this bill apart from other legislation that this Government has been responsible for introducing? There is no mention of the Treaty of Waitangi and its principles. I wonder why. Are health practitioners exempt from applying the principles of the treaty that the Government has required other sectors of our community to adhere to, or is the bill’s intent to leave that responsibility to particular professional groups?

I feel that we should not be too hasty in repealing the Medical Practitioners Act for the simple reason that if something is not broken, why fix it? The robustness of the Act is evidenced by the fact that this bill is modelled on it. Given that the scope of this bill is much wider than that of the Medical Practitioners Act, and that many submitters are predicting problems ahead, why not keep both? At least they should be kept until the legislation is reviewed after 3 or so years.

Doctors I have corresponded with have expressed concern at the lack of consultation on aspects of this bill, most notably the concept of scopes of practice, which comes to us courtesy of the policy unit of the ministry rather than from professionals actually working as health practitioners. Doctors have distinct responsibilities and accountabilities, the substance of which they fear will get submerged in this bill. I have already noted that patient outcomes should be included in the assessment of competence. It is easy for legislation such as this to get bogged down in bureaucratic legalese and for us to lose sight of its reason for existence, which in this case is the protection of patients and customers of health practitioners and health-care providers.

First, I want to take the opportunity to thank the 265 submitters for their feedback on the health practitioners competence assurance proposal. I commend those who have been involved in the design and development of this legislation for the open way in which they have responded to the inquiries of United Future and the concerns we have presented. As a consequence, we believe that the bill has continued to evolve into a workable proposition and a good piece of legislation.

The vast majority of submissions presented to the Health Committee were from health practitioners or from persons representing particular health professions. There were a smaller number of submissions from consumer groups and business interests. That created an imbalance that made it imperative for United Future to reflect on the bill as being primarily about public safety, not just professional development concerns. It was very clear that consumer groups placed their emphasis on very different issues than the professional groups. Consumer groups were often concerned with restricting the powers given to professional bodies, while professional bodies were concerned at the level of consumer representation on professional conduct committees and disciplinary tribunals, and about the powers that were to be attributed to the Minister. United Future is satisfied that a balance has been struck between the appointment of regulatory bodies and disciplinary tribunals that reflects consumers’ concerns that health professionals are not judge and jury, while acknowledging the intention to maintain high professional standards.

United Future has met with many and varied health groups and health practitioners in the development of the bill. It has been important for us to have the opportunity to speak with health professions that to date have not been covered by any legislative framework, but who are very keen to meet the requirements and be included under the provisions of this bill. We have been equally interested in the feedback from the 11 professions for whom existing regulatory statutes will be repealed, so that they can come under this umbrella legislation immediately.

United Future is satisfied that health practitioners on both sides of the bill are supporting its general intention, but we are aware of ongoing concerns, and I will address a few of those concerns now. Scopes of practice is one such issue. A scope of practice describes what a practitioner is qualified and competent to do, under what conditions, and for how long. There was a fear that scopes of practice would be too narrow and prescriptive, but that has never been the intention of scopes of practice. United Future has pursued that concern and is satisfied that scopes of practice are determined by the appropriate health regulatory boards, and that they will therefore determine what scope of practice is best suited and whether it is sufficiently broad. The regulatory boards will have the discretion to limit a scope of practice. For example, an international doctor with specialist skills might be given a scope of practice to specialise in, but might not be permitted to practise in a more general sense.

Quality assurance activities have also concerned submitters. Professional groups are very clear about how essential quality assurance activities are to iron out systemic problems and ensure patient safety, and about the importance of protecting a safe and open environment for practitioners to discuss their concerns and practice. On the other hand, consumer groups have raised concerns about instances in which vital information might be withheld from an inquiry. As a consequence of these concerns, the bill has incorporated recommendations by some submitters that will now allow quality assurance activities to be protected unless there is a current investigation into the same matter. That means that no one will participate in a quality assurance activity without being first warned that the outcomes might be required for an investigation. No one will be caught out.

The inclusion of the restricted activities list is important for public safety. Issues have been raised about when the list will be enacted, with some submitters indicating that they wanted that prescribed at the same time that the bill is enacted. However, we believe that would contradict the intention of the bill. Ongoing decisions of this nature should happen after full consultation with all affected health professionals. While the committee expects that practices like anaesthesia, invasive surgery, and eye examinations might well need to be included, we believe that health professionals and not legislators are best suited to make those medical decisions, and that it is appropriate for the Minister of Health to oversee that process. We have seriously considered the wish of the Medical Association to be exempt from the new Act, and believe that we are continuing to act with the support of the Medical Council and most of the interest groups we have met.

This bill also proposes to amend several existing Acts. Of particular note is the Medicines Act, which will be amended to introduce new regulatory provisions for the operation of pharmacies. There is a proposal in this bill for partial deregulation, which has not been popular with submitters from the retail sector, who lobbied for full deregulation. United Future has weighed this issue up carefully. Due to the present level of Government involvement in this sector with dispensing fees and other Pharmac price-setting, it feels that partial deregulation is the wisest choice at this stage. We support this provision. We do not feel that it is appropriate to make more drastic changes to fully deregulate. We believe that partial deregulation is a common-sense precautionary move to ensure public safety and allow the industry to assimilate the new commercial environments that will be created.

United Future is continuing its support of this bill, believing that members of the public should be at their safest when in the care of health professionals. That has not always been the case, and at those times it is unhelpful if the public perception is that health professionals are an old boys’ club that protects its own regardless of the consequences. United Future does not support that perception, and therefore welcomes legislation that seeks to protect the public from professional incompetence and unethical behaviour, while providing protection for caring practitioners against vexatious claims. This is a hugely complex bill, and for that reason we welcome the review clause, which means that any adjustments that might need to be considered will not suffer undue delay.

I welcome this opportunity to rise to speak to the second reading of this bill. ACT New Zealand will not support this bill, for the reasons outlined by both the National member and the New Zealand First member. We have outlined these reasons in some detail in our minority view in the commentary, which was a joint one.

This is a huge piece of legislation that the officials tell us, and have told us often, has been 3 years in the making. However, it was pushed through the Health Committee with a great deal of urgency, despite the fact that it is 272 pages long and covers 11 professional groups. Those groups are medical practitioners, dentists, pharmacists, physiotherapists, occupational therapists, nurses, dieticians, psychologists, chiropractors, medical auxiliaries, and optometrists and dispensing opticians. The bill will repeal the eleven Acts that currently govern those professions. Some of those professions have been working under outdated legislation for far too long. If I were still working in my field as a trained physiotherapist, I would currently be working under a 1949 piece of legislation, as do the occupational therapists. The dieticians are not far behind, working under law that was passed in 1950. For those groups change is long overdue. Practice and technology have moved on significantly in the intervening years.

However, I want to raise my concern that that reason alone does not justify our accepting this legislation, which I feel is inadequate to cover those professional bodies, as being the best that can be done for public safety. Many of the smaller professions that are very keen on the legislation going ahead would have benefited from more time having been taken over this legislation in an attempt to get the various parts absolutely right for their professional practice. The commentary on the bill, under “Background”, states: “The Health Practitioners Competence Assurance Bill is intended to provide a framework for the regulation of health practitioners in order to protect the public where there is a risk of harm from the practice of the profession.” The reason that ACT New Zealand does not support this bill is that we do not believe that it will achieve that.

It concerns me—and the New Zealand First member raised this concern, too—that there is no definition of “competence” in the bill. Here we have a piece of legislation that hinges on competence, and we were told that the term “competence” was too hard to define. If it is too hard to define, how can health professionals be reasonably expected to meet this standard? What standard is it? If it cannot be defined, how can it be met? What are they to aspire to? What level of practice should health professionals meet? If “competence” cannot be determined, how can judgments be made about individual health practitioners’ performance? The answer to this question, of course, is that it cannot.

I have two Supplementary Order Papers in relation to this bill. We have heard that both the New Zealand Medical Association and the Association of Salaried Medical Specialists are not at all happy with this legislation. They have had concerns for some time, and they have attempted to be heard. They say that, for the professional groups, the consultation was not adequate; the registration bodies had adequate time with the officials, they said, to discuss concerns, but the professional bodies were given only a cursory amount of consultation. They are very keen to pull out of this bill. One of my Supplementary Order Papers is introduced for that very reason. It is to remove medical practitioners from the Health Practitioners Competence Assurance Bill.

The New Zealand Medical Association said that the Health Practitioners Competence Assurance Bill was clumsy, bureaucratic, and laden with scope for political interference. The Government, as I have said, claims that the bill aims to protect the public, but in reality it will not encourage professionalism—it will work against it. When professionalism is not encouraged is the very time that the safety of the public is at greatest risk.

The Association of Salaried Medical Specialists said that it had many concerns about the bill. In fact, the association wrote to several health spokespeople of the various parties. It said that it had many concerns but that the following were the most critical, in terms of the health and safety of the public, and in terms of the deficiencies of the bill when contrasted with the higher standards of the Medical Practitioners Act. The New Zealand Medical Association, it should be noted, also voiced the very same concerns.

The first concern was conformity of scopes of practice with the registration provisions of the Medical Practitioners Act. We have heard a lot about the scopes of practice, and I will not go into a lot of detail, because I agree entirely with what the National Party member and the New Zealand First member have said about scopes of practice. They are new, untried, and untested, and, despite the assurances that the Associate Minister of Health Ruth Dyson tried to give us, nobody is fooled. We in New Zealand will be the guinea pigs who try these. In particular, where there are overlapping scopes of practice between various professions, it will be very difficult to determine who should be responsible for what, and to find the common ground, so that good practice is able to be ensured and, leading on from that, of course, the safety of the public.

The second area of concern was quality assurance. The Medical Practitioners Act, which is a much more modern piece of legislation than those that many of the other groups are working under, sets out good quality-assurance provisions. The medical practitioners have, over the last decade in particular, made huge gains in relation to dealing with the public, examining their own practice, and, really, updating their codes of practice. They feel that it would be better to stick with the Medical Practitioners Act, particularly its quality assurance provisions. They feel that those in the Health Practitioners Competence Assurance Bill are unworkable and will not encourage good quality-assurance.

The United Future member spoke about the protection that is provided for medical practitioners. In fact, this is not the case. The medical practitioners are very worried, not only for themselves but for other professional bodies, that the protection is not there. When that does not exist, the experience is that the professions do not participate fully, and in an honest and upfront manner, in terms of quality assurance. If we want good-quality safety and practice from our health practitioners, then we must allow them that scope—that room—to deal with mistakes that have been made, not in a shame and blame way but in a no-blame environment. The Health Practitioners Competence Assurance Bill does not provide for that.

The next area is the setting of codes of ethics. The Associate Minister of Health Ruth Dyson mentioned the codes of ethics. The medical practitioners, in particular, are very worried that this right is being taken away from them. Medical practitioners have always been able to determine their own code of ethics. They are the people working in the area; they know what is necessary. Instead, the officials, and the Minister of Health, in particular, will have a large say in codes of ethics.

The other thing that is very important to the medical practitioners, but also to the pharmacists and the dentists, is the ability to have elected members on their registration boards and their professional bodies. Under the bill this right may well be taken away from them. The bill does say that scope is there for them to elect people whom they can nominate to go on their professional bodies, but, in fact, the decision is to be made by the Minister of Health, and she can easily override those nominations. In a press release that we saw in the New Zealand Herald of 22 July—a very recent one—Ms King said that she did not favour elections for such bodies. So although there is provision in the bill for nominations to happen, it is most likely that medical practitioners, dentists, pharmacists, and any other profession that wants to have elected members will not, in fact, be able to do so.

Another area of concern, which has also been mentioned, is ministerial control. I have alluded to this several times throughout my speech. The scope for the Minister to have overriding control in many areas of this bill is great, and all the medical professions should be very worried about this. It depends, of course, on one’s Minister of Health, but the bill leaves the field wide open for any Minister to come in and make decisions that these professionals should be able to make for themselves.

For these reasons, ACT New Zealand will be opposing this bill and opposing it vigorously.

The Green Party will support this bill, which has had a long 3-year gestation and involved many people in submissions from the professions, and so forth. We are pleased to support many of the provisions in the bill and that we managed to get three amendments made to the bill by the Health Committee. I will refer to those later.

We support the idea of a consistent and transparent framework for the registration of health professionals, and for robust complaints and disciplinary procedures with regard to all health practitioners, with the same disciplinary processes applying to all health professions. That is a real step forward. I think we all need to recognise that consumers are disillusioned with the health system and the complaints process, as a result of the Parry inquiry, the Gisborne cervical cancer inquiry, and numerous other inquiries. We have much work to do in order to restore consumer confidence in the health system and the complaints procedures surrounding the health professions. We need to have a system in place that protects the public where there is a risk of harm—which is the main objective of this bill—and that protects patients from incompetent practitioners.

We need to simplify and speed up the complaints process, and to make it more consumer friendly. The present situation is labyrinthine. Up to 14 different agencies can separately investigate the same adverse medical event, which is a crazy situation. For that reason we support the idea of a one-stop shop—the Cull proposal—and the idea that all complaints should go in the first instance to the Health and Disability Commissioner. We hope that the new 3-week time frames we have set will speed up the complaints process. We have heard about many consumers having intolerable delays in getting their complaints heard and in going through the system, particularly in situations such as the Parry inquiry.

We support the provision that enables the commissioner to throw out vexatious complaints, because those can cause huge stress, huge problems, and financial loss to practitioners. In a couple of overseas jurisdictions, the complementary health practitioners, in particular, have been targeted by groups that have taken continual vexatious complaints. I believe that midwives have had concerns about that, as well. We hope this provision will avoid that pitfall here.

We are pleased that patients whose rights have been breached will have access to the legal remedy of the Human Rights Review Tribunal, and that registering authorities will be able to review the competence of practitioners and to require them to participate in competency programmes. We are pleased with the provision that two—or, in some cases, three—laypersons or consumers are to be members of the registration bodies. So we are very happy with many aspects of the bill, and we are pleased to support them.

But, like other members, we have some very real concerns about this bill, and in particular about the power it gives to the Minister of Health over all the health professions that it covers—and, indeed, over those professions that are not directly covered. When the Minister introduced this bill, she said she wanted it to strike a balance between the Government controls that are necessary to protect the public and self-regulation by the profession. In the Green Party’s view, the bill does not strike the right balance, because it gives wide-ranging powers and undue influence to the Minister over all the professions. In particular, the Minister is given the right to personally appoint up to 14 members of every governing authority established by the bill, and, along with other powers, the right to be the final arbiter on disputes over scopes of practice and to decide what will be the restricted activities. We believe that those powers, taken all together, could be used at a future time to exert undue influence, covert and overt, over health professionals. We only need to think about that to realise that if every member of every health profession in the land—certainly, of those professions covered by this bill—is to be appointed by the Minister of Health, then he or she is, in a sense, beholden to that Minister, certainly for reappointment. That simple fact can act as a strong incentive to toe the line, and can undermine the independence of the professions.

That is why the Green Party attaches so much importance to the provisions that regulatory authorities are able to elect some members to the registration authority. We believe that allowing the professions to elect some members to their governing authority will have a very positive aspect to it. It will allow them to have some say in the make-up of their governing body—some sense that there is involvement, that it is self-regulation, and that it is not just all being imposed—and it will ensure some sense of ownership in their authority. Best of all, it will mean that the elected members at least will not be beholden to any Minister for their reappointment. I have had some involvement with appointments processes, so I have very real concerns about the ability of the process, firstly, to be used for patronage—for dishing out favours to people who have supported a particular Government—and, secondly, to act as a constraint that keeps people in line if they have any desire to be reappointed.

We are delighted that one of the amendments we managed to get in at the select committee stage will allow appointed members to be elected. However, as the previous speaker said, that provision really does need to be strengthened. The present wording does not oblige the Minister to allow elections; it makes it only a possibility. Given the Minister’s comments that she is opposed to that, I think that is a real concern. I foreshadow that I will introduce an amendment that will require the Minister to allow elections to be held if a registering authority requests them. I would advise all the registering authorities to do so, for the reasons I have outlined.

Another amendment I want to foreshadow will include acupuncturists within the scope of this bill. There are extremely significant risks associated with acupuncture. Just to give members one example, we can imagine the harm that could occur if acupuncturists did not sterilise their needles. If we were to approach the issue of acupuncturists from a consumer perspective, we would definitely include acupuncturists in this bill. In fact, it is only for political reasons that they are not included. In our view, acupuncturists have an equally, or, indeed, more valid, claim to statutory regulation as osteopaths. They have been seeking statutory regulation for literally two decades, and the only reason osteopaths are included and acupuncturists are not is that a political promise was made to osteopaths 4 years ago. It is as simple as that. Members should not get me wrong. I am delighted that osteopaths are included, but it is unfair and unjust that they are included and acupuncturists are not, for no other reason than a political promise that was made.

The omission of acupuncturists could cause significant anomalies in the future. If acupuncture is made a restricted activity, as it should be, then only medical and physio-acupuncturists will be able to practise, and all other traditional acupuncturists in New Zealand will be prohibited from practising. That is a nonsense. There has been major progress in bringing all the parties in acupuncture together, and there is no reason not to include them in this bill.

Finally, the Green Party is concerned that this bill leaves most of the detail of the new system to be decided by regulation, after this legislation has been adopted by Parliament. The bill sets up a framework, but provides absolutely no parliamentary scrutiny over the implementation of it. Hugely important issues, such as scopes of practice, which activities are to be restricted, and so forth, are all to be decided by Order in Council—a secret regulatory mechanism that does not allow any parliamentary scrutiny. In my view, many of the issues here that are to be decided by regulation are not technical matters, but are significant policy issues that should be decided by Parliament and by parliamentary scrutiny, not by regulation.

Finally, we are delighted that the provisions contained in the original version of the bill that would have deregulated pharmacies have been dropped. We are pleased that the Green Party played a role in that. We are pleased our amendment to strengthen that particular provision went through, and we want to see it strengthened even further.

I thank the Chair for the opportunity to speak on the bill. I hold this bill up with considerable dismay, for a variety of reasons. One of them is that it would have been a huge triumph for Parliament and for the health system if it had been possible to have multiparty agreement on this document. It is a huge indictment on the Labour Government that all the submissions from the New Zealand Medical Association, the Association of Salaried Medical Specialists, and the New Zealand Nurses Organisation, which represent 32,000 people, say that there has not been enough consultation on this very, very important bill. So I hold it up with dismay, for that reason.

But I also hold it up with dismay because it is 272 pages long. It is a monolith the size of a telephone book, and it is supposed to be modelled on the Medical Practitioners Act 1996. This veritable monolith of a bill consists of 272 pages and 254 clauses. It represents the typical instincts of a Labour Government to have as much complication, as much bureaucracy, as the machinations of its socialist mind could possibly conjure up. In many respects, it is a case of great déjà vu in terms of what we had 2 years ago with the most unfortunate Health and Disability Act, which resulted in the most complicated, bureaucratic health organisation that New Zealand has ever seen, typified by the 21 district health boards and by an ever-increasing Ministry of Health, which is, clearly, becoming more and more dysfunctional by the day.

The main purpose of the bill is said to be to protect the health and safety of members of the public by providing mechanisms to ensure that health practitioners are competent and fit to practise their professions. Nobody disagrees with that, but I do, as I say, hold this bill up with great dismay that the National Party cannot support it, for the very logical reasons that I have already given. I congratulate the parties and the members of the Health Committee for their forbearance and tolerance of this Labour Government, which has failed to ensure that the bill truly is modelled on the Medical Practitioners Act, which was so successful.

I also congratulate the many submitters. Although I was not on the select committee, I have read many of those submissions, and they are thoughtful and considered. The shame of it is that the Labour Government has not taken notice of them. In fact, the submitters were extraordinarily diverse. They varied from chiropractors to the Plumbers, Gasfitters, and Drainlayers Board—a quite unlikely but, indeed, important submission—to the Royal Australasian College of Surgeons. But I want to focus on some of the concerns of the New Zealand Medical Association, which is a highly professional body representing some 5,000 members, including a broad range of specialties, and including medical students.

The association supported the basic concepts of the bill, but has since had grave misgivings, and now has withdrawn its support. This is what it said about consultation: “Quite simply, we have no confidence in the policy development process or the consultation process behind this bill. We believe that the lack of adequate consultation has led to a number of major deficiencies within the draft legislation.” The association then went on to talk about professionalism and self-regulation: “This legislation, if enacted, will strongly diminish the self-regulatory concept in favour of a more politicised and bureaucratic model.” —that, again, must be a huge indictment on this Labour Government—“The opportunities for greater control by the Ministry of Health and by politicians are substantially increased to the extent that it is doubtful that effective self-regulation can continue. We have no doubt that professionalism is the key to effective and safe health services for New Zealanders, and changes need to be made to this draft legislation to restore the concepts of professionalism and professional self-regulation.” In that respect, I intend to put an additional amendment to include in the purpose clause that recognition of professional self-regulation be the basis of health practice in New Zealand.

The association then went on to discuss the question of the complexity of the bill. It pointed out that whereas the Medical Practitioners Act is relatively simple and well-structured legislation, in the association’s view this bill is overly complex, unnecessarily prescriptive, and hard to understand. That has to be of great concern.

I note in the report of the select committee that there is great concern about scopes of practice. Throughout the process the professions have reflected that concern, including the New Zealand Nurses Organisation. It said in its submission: “An issue that is fundamental to the New Zealand Nurses Organisation is the need for increased consultation on specific clauses.” It said that the inclusion of provision for consultation with professional bodies, before scopes of practice are introduced into legislation, is absolutely vital, but that has not happened. It is of great concern when we have the New Zealand Medical Association, amongst many submitters, withdrawing its support and saying that that is one of the areas that are of great concern to it.

I want to go on. The powers of the Minister of Health have also caused a great deal of worry. As the member from ACT just pointed out, in terms of the powers of the Minister of Health, the Minister in appointing representatives to the registering authorities, such as the Medical Council of New Zealand, has no obligation to appoint from nominations. That is a very, very serious aspect. Secondly, the Minister will be the final arbiter on scopes of practice—again, a hugely serious worry if we are to achieve multiparty agreement on this sort of legislation, which is so important for health services.

There have been some improvements in one area, quality assurance, but I still remain very concerned that there is not one pathway whereby health groups, whatever they are, have immunity from—[Interruption] I tell the member for Otaki that this is a very serious point. We do want to be able to improve health services in New Zealand, and it is important that there is at least one strand whereby health professionals can get together and discuss clinical situations with total immunity. This happens in the New South Wales jurisdiction with perinatal mortality; there is an excellent feedback mechanism that people can use without fear that a case might be taken against them. Of course, there are plenty of opportunities for the law, if appropriate, to come in here, but quality assurance is hugely important.

There are many other aspects of this bill that I am deeply concerned about, but of most concern is the fact that the Labour Government has not listened, has not consulted, and has not achieved multiparty agreement.