Health Practitioners Competence Assurance Bill

As the Chairperson has just said, there are 27 clauses in Part 3, and I certainly hope we are going to be able to debate many of those clauses. Part 3 goes to the heart of trying to look at protection for the public, which is what this bill is supposed to be about. This part does have some significant issues in it, and I have a Supplementary Order Paper that deals with some of the quality assurance provisions. Before I get on to quality assurance, I just want to say that this particular part of the bill is about competence, fitness to practise, and quality assurance.

As we have heard previously, this bill was supposed to be based on the 1995 Medical Practitioners Act. Under that Act, quality assurance improved markedly. I was working as a doctor in a hospital in the 1990s and was very pleased to become involved with quality assurance programmes. I am sure if Steve Chadwick was here she would also be telling members that she became very involved, in the hospital where she worked, in developing quality assurance programmes. These programmes are all about looking at protection for the public. Quality assurance is about seeking to improve one’s practice. One does that by looking at case studies, looking at near misses, and looking at when the system is not quite working. It involves getting nurses, doctors, and other health professionals together and doing a case review on a case by case basis, looking at those cases that did not go as well as one expected—whether that was because of the physical problems that the patient had or whether it was, sometimes, because of iatrogenic causes. Iatrogenic causes occur when the procedures or the medication that a person receives in hospital makes that person ill, and that happens to about 20 to 30 percent of patients who go into hospital. When patients are severely ill, sometimes the things one has to do to try to make them well can at times have unforeseen consequences—for example, hospital-acquired infections. Procedures can go wrong, and it is essential that the doctors and nurses in our hospitals can engage in quality assurance procedures.

There was one isolated incident back in the 1990s when Waitemata Health refused to give some information because it was part of a quality assurance programme. That was in the Malcolm Beggs and Lachlan Jones case. A system cannot be damned by one error, and that was part of the problem that occurred in this legislation under clauses 51, 52, 53, and 54. Changes have been made to clause 52. The Health Committee worked very well to try to get those changes, so that there is the same sort of plan as provided under the 1995 Act to allow quality assurance procedures to happen in our hospitals. It would ensure that people engaging in those procedures do not feel that that information can then be used in a medical practitioners disciplinary tribunal or for accident compensation.

One does not want to deny information, but there are all the other avenues that are available. There is accident compensation to look at medical mishap and medical misadventure, and there is the Health and Disability Commissioner. So any patient who ends up in our hospitals who feels that he or she has not been treated correctly has an avenue of complaint. Those posters are up in every hospital in our country so that people know we have a complaints assessment procedure at every hospital in our country. I encourage anybody who has a problem or who is unhappy with his or her care to go through the hospital complaints procedure, because that is the only way a hospital can deal with those problems.

I think that hospitals and general practitioners are far better at dealing with problems these days. We used to say it was a gold star if somebody said something was wrong, because then we would be able to change it. If we were able to know somebody was unhappy with something, we had to view it that way to be able to improve service. So quality assurance is just one section in Part 3, and it is very important.

Part 3 deals with competence, fitness to practise, and quality assurance, and in a way it highlights exactly the kinds of issues that the Opposition has raised earlier. We all know that, however much the Minister may want to reassure us, and through us the public, that this bill will indeed ensure the safety of the public, Part 3 deals with instances when, maybe, safety has not been maintained. If we look at clause 33(1), we see that it states: “If a health practitioner (health practitioner A) has reason to believe that another health practitioner (health practitioner B) may pose a risk of harm to the public by practising below the required standard of competence, health practitioner A may give the Registrar of the authority … written notice …” about that.

The point I want to make here comes back to the point I was making earlier about the definition of competence. I ask whether that will be defined differently by each of the authorities. I would really like the Minister to enlighten me on it, because that issue of competence goes to the heart of public health and safety. If early in the debate on this legislation we are already making provision for situations when competence falls below the required standard, then to me that does not augur too well. So, as I say, I look forward to the Minister taking a call on that issue.

I want to turn to clauses 39 and 40. Clause 39 deals with competence programmes and clause 40 deals with recertification programmes. Of course, my colleague Dr Lynda Scott tells me that the certification process is part of what has always gone on, anyway, but this legislation is now ensuring that certification—

💬 Dr Lynda Scott: It was National.

Of course National brought that in. I had forgotten. But it goes to the heart, still, of this issue of competence. The thing that worries me in clause 39(1) and the subsequent subclauses is that there is nothing mandatory in the legislation. Now, there may be a good reason for that. Clause 39(1) states that the authority “may”—“may from time to time set or recognise competence programmes in respect of health practitioners who hold or apply for practising certificates.” Clause 40(1) states “… each authority may from time to time set or recognise recertification programmes for practitioners who are registered with the authority.” I ask, given the sad history of things that have gone before in the health sector with practitioners like Bottrill and co., whether this provision is sufficient. Is it sufficient that the authorities only “may” do that, particularly when we are making provision at the beginning of Part 3 for certain requirements when one practitioner suspects that another has fallen below the line in terms of competence?

Again, I did not have the pleasure or privilege of sitting on the Health Committee and perhaps these points were covered, but I do think that they may present a bit of a flaw. What confidence do we have if competence and recertification programmes are a matter of discretion for the authorities? I think that that issue must be addressed or at least answered. All the way through Part 3, again, the responsibilities are discretionary only and I ask the Minister whether that is sufficient.

Part 3 is hugely important, particularly so because of the area around quality assurance activities. I am very glad to see that the bill makes a big effort to pursue that seriously, from clauses 52 to 60. It points out that the purpose of those clauses is to encourage effective quality assurance activities in relation to health services performed by health practitioners, by a variety of methods, and to give immunity from civil liability to persons who engage in such activities in good faith. Clearly, the underlying principle is to ensure that continual efforts are made to improve standards in order to protect the public.

Of great worry in New Zealand in the 1990s was the abandonment of the various mortality committees because of the increasing and extraordinary fear of the litigation that has been occurring in New Zealand. We have seen the abandonment of the maternal mortality, the perinatal mortality, and the anaesthetic mortality committees, and it has been hugely damaging not to be able to collect the wisdom of the past and apply it to improve clinical practice in the future.

Clauses 52 and 52A concern me, and I believe that my colleague Dr Lynda Scott has proposed some very constructive amendments that I hope the Minister will take note of. During discussions on the health and disability legislation, I tried to persuade the Minister that it was important to have one strand of quality assurance activity that was immune under all circumstances. I pointed out that in the state of New South Wales in Australia perinatal mortality committees were indeed immune. The state allowed one strand where practitioners, nurses, and the whole spectrum of people involved in the care of newborn babies were able to discuss clinical situations completely freely and be immune from litigation. That resulted in a very effective collation of epidemiological and clinical data that was fed back to the shop floor of hospitals and birthing units, resulting in a very effective strand that deeply involved trust. So, in relation to clause 52(1), the point that the Minister may confer protection on quality assurance activity concerns me. My colleague Lynda Scott has suggested that applications for protection of a quality assurance activity must be made to the Director-General of Health, so that instead of a political person being involved in that process, it would be the Director-General of Health.

Perhaps more important is clause 52A(1), which states that a quality assurance activity “does not form part of a protected quality assurance activity to the extent that the quality assurance activity—(a) is concerned with particular acts and omissions; and (b) is carried out at a time when those acts or omissions” are subject to a variety of things. This completely negates that one strand of immunity that I believe is incredibly important. My colleague Lynda Scott has suggested on her Supplementary Order Paper that clauses 52A, 53, 54, and 54A be omitted, and I think that is entirely appropriate. We must not forget what happened in the 1990s with those very important mortality committees.

I can see the Minister shaking her head. She is not aware of the enormous concern and fear it has put right throughout the whole spectrum of health practitioners, in terms of having this litigation hanging over their heads.

I will take just a short call because I think it is important to correct something that Dr Hutchison said. He said that the provisions on Lynda Scott’s Supplementary Order Paper would take the politician out of deciding quality assurance. I do not know whether the member is very familiar with quality assurance activities.

💬 Dr Paul Hutchison: Very familiar—much more than you.

If the member is very certain about this—and I am holding one in my hand—does he know who signs off quality assurance activities now?

💬 Dr Paul Hutchison: Go ahead; tell us.

That is why I am saying that the member is ignorant. The person who signs off quality assurance activities is the Minister of Health. I just happen to be sitting here, signing off a quality assurance programme for ProCare Health Ltd at this very moment. It is signed by the Minister of Health, and has been signed under the Medical Practitioners Act. That requirement has been put back into this bill, and those members want to take it out so that the director-general signs them, not the Minister. It has been going on for years in quality assurance activities. The Minister signs the very schedule that is laid on this Table, but those members want to stop the Minister from doing that and give the authority to the director-general. That shows this Committee that a whole lot of gobbledygook is being been spoken by people who pretend to know what is happening. If the member knew what was happening, he would know that the Minister of Health, whether it is this one or a National Minister of Health, signs quality assurance activities. It is not the director-general; it is the Minister of Health. That authority is transferred over into the new bill.

I would like to speak to an amendment I have proposed to clause 44(2). It is a very simple amendment, and I hope most members will support it. Basically, the present clause states that if a person who is a health practitioner is unable to perform his or her functions, and if somebody has reason to believe that a health practitioner is unable to perform his or her functions, then that person will promptly give the registrar of the responsible authority written notice of all circumstances. The amendment I am moving to this clause will require health practitioners to report on another health practitioner, if they have reason to believe that person is unable to perform his or her job. My amendment will simply make an exemption to this requirement for those health professionals who are also performing functions as union representatives.

If this clause were to proceed as it is currently written, it would place union representatives who are also registered health practitioners in a very difficult—indeed, a very awkward—position. Union representatives, such as organisers, delegates, and officials, are expected to provide advice and counsel to their health practitioner members who are experiencing any problems relating to their employment. It would place those representatives in an untenable position if they were then required, as health practitioners, to report to the relevant authority on what they had learnt as a union representative. This would particularly apply to nurses. Many of the officials and organisers who work for the Nurses Organisation are also registered nurses, and they will obviously seek to be registered under the new bill as nurses. This particular clause would put them in an extremely awkward and difficult position, and indeed, I would have thought, an untenable position.

I hope that by amending the bill in the small way I have proposed—to have this exemption—we can ensure that the legislation does not breach the fundamental rights of health professionals to employment advocacy and support. I suspect that this is just one of those little things we overlooked when we were considering the bill. It was drawn to my attention subsequently. I think it is a very reasonable request. It would simply be an exemption for those practitioners who are performing a role as union representatives. I hope that all parties will support this particular amendment.

I want to make a few comments with regard to this part of the bill, and in particular to the quality assurance issue and some of the comments made by the National member. We support the notion of deleting clauses 52A, 53, 54, and 54A, for the following reasons. These proposed amendments relate to several issues. Clause 52A, which provides for the disallowance of protection of an activity if a major inquiry is under way, is unnecessary and may reduce safety. Firstly, it is unnecessary because an inquiry or investigation into an event or issue will not be hindered by a protected quality assurance activity involving the same event or issue, as the facts surrounding the event or issue are not protected. It may reduce safety because the initiation or continuation of a quality assurance activity may be essential to prevent a recurrence of the original event or issue.

Secondly, the requirement under clause 53 to have an independent person, approved by the Minister, to be responsible for a quality assurance activity is unnecessary and probably overly bureaucratic. It is not currently a requirement under the Medical Practitioners Act as I understand it, and no reasons have been given for its inclusion. It is likely to substantially inhibit efforts to obtain protection for quality assurance activities. For that reason, I support the notion of deleting those clauses.

I would like to start by thanking the Minister for taking the time to rise to her feet and put forward her views on the quality assurance issue. However, she may not have picked up on the concern felt by members on this side—and the Supplementary Order Papers put forward by Lynda Scott, MP for Kaikoura, because of her concern and the concern within the health sector—about this Minister’s ability to sign off these quality assurance programmes, and whether indeed someone else might be in a better position to do that, now and into the future. I would like to let the Minister know that major inquiries into health errors, locally and internationally, and she should know this, have stressed the importance of a no-blame environment. This is to encourage learning from adverse events, which all of us would prefer do not happen, but they do, so health professionals should learn from them. That is what we all want. We want health professionals to learn from those events.

At the moment the Minister of Health is able to declare an activity as a protected quality assurance activity, and that protects any person participating in the activity, from civil liberty. That is clear. However, this bill proposes a different definition, and I want to emphasise that point. It proposes a different definition of quality assurance activity that focuses more on the competence of the individual practitioner and less on the evaluation and assessment of health services provided by that very practitioner. In fact, not only does it focus more on a specific practitioner but also on a series of practitioners, who may have been involved in an adverse health event. It does not focus on the evaluation and assessment of the health services provided by various practitioners up to and resulting from that event.

That is the point we would like to make clear, and that is why Lynda Scott, MP for Kaikoura, and Opposition spokesperson on health, has been concerned enough to draft up amendments to this bill in this area. Originally, a quality assurance exercise that had the potential to enhance patient safety would either have had to proceed without protection or would have had to wait until one or more of these inquiries had concluded. Sometimes this takes years, and the Minister is well aware of that. We can list lots of examples where that has happened. I am sure if we get opportunities we will list how many times it has happened.

The Minister herself has introduced Supplementary Order Paper 118 to amend this particular part, which demonstrates to members on this side that the original bill was rushed through the whole parliamentary process, and that consultation did not occur as it should. Quite significant changes were made and are still being made. Consultation certainly should occur in this area of the bill, if not in any other. That is quality assurance. That is focusing on mistakes made and learning from them, into the future.

In addition, the revised bill requires that any protected quality assurance activity be carried out under the auspices of a ministerial appointee. This is not required under the present legislation, but the Minister would have us believe that it is. It is not required under this legislation.

💬 Hon Annette King: I didn’t say that.

The Minister got to her feet and shouted and carried on, and waved bits of paper, which were blowing over here, making out that these processes actually occur at the present time. They do not. I would also like to bring to the attention of the Minister that many submitters—and she was not sitting round the select committee table, and I do not know if her ears were open to those concerns in the health sector—felt that clauses 51 to 60 were impenetrable and their concerns had not been adequately addressed. I put that to the Minister.

I move, That the question be now put.

In speaking to this part I would like to talk mainly about the quality assurance activities, and to carry on from where the previous speaker left off.

💬 Phil Heatley: Phil Heatley MP.

I thank, Mr Heatley MP. Many of the submitters spoke to the Health Committee of their concerns about clauses 51 through to 60. It is always interesting when we hear the same concerns expressed from different groups, over and over again. That sends a very strong message. It certainly did to the members on the Opposition side of the table at the select committee, although it seems that perhaps the Government members did not listen quite as carefully as they could have listened, because the issues have not been addressed.

I would like to lend ACT New Zealand’s support to Dr Lynda Scott’s proposed amendment in Supplementary Order Paper 103 to delete clauses 52A, 53, 54, and 54A. The provision to disallow protection of an activity if a major inquiry is under way is unnecessary, and many of the health practitioners’ bodies have backed that up. That provision may actually reduce safety. It is unnecessary because an inquiry or an investigation into an event or issue will not be hindered by protected quality assurance activities involving the same event or issue, as the facts surrounding the event or issue are not protected. It may reduce safety because the initiation or continuation of a quality assurance activity may be essential to prevent a recurrence of the original event or issue. If that are not allowed to happen, certainly in a free and frank way, then nobody will learn anything from it.

Phil Heatley talked about the differences between the quality assurance provisions in the Medical Practitioners Act and in this bill, and it is worth emphasising those again. The Minister said she had just picked up the provisions regarding medical practitioners and put them slap bang into this bill, but in fact that is not the case, at all. We should take some time to look at the differences between the two pieces of legislation. The Medical Practitioners Act allows the Minister of Health to declare an activity to be a protected quality assurance activity, and that protects any person who is participating in the activity from civil liability. That is in sections 67 and 68 of the Medical Practitioners Act. The Minister must be satisfied that the activity is carried out in the public interest. Information that becomes known solely as a result of a declared quality assurance activity cannot be used in any judicial proceeding—that is in section 70—except where the Minister is satisfied that the information relates to conduct that does, or may, constitute a serious offence. So the provisions are there for the Minister to do something in that case. She can then authorise disclosure for the purpose of investigating and prosecuting the offence. The exception to that is where the disclosure is not of fact but of an expression of opinion, unless the information consists only of matter contained in a report prepared by a person who is engaged in the declared quality assurance activities. That is the current situation.

If we look at this bill, we see that it proposes a different definition of quality assurance activities. It focuses more on the competence of the individual practitioner and less on the evaluation and the assessment of the health services provided by that practitioner. Mr Heatley pointed that out, but it certainly is worth repeating it again because it is a very important point. Clause 51 of the bill states: “quality assurance activity—(a) means an activity that is undertaken to improve the practices or competence of 1 or more health practitioners …”. That may be compared with the Medical Practitioners Act, where the definition of a quality assurance activity is “an activity that consists of, or includes, or results in, an assessment or evaluation of any health services provided by a medical practitioner”. In this bill the quality assurance activity loses protection, by virtue of clause 52A, as soon as any acts of omission become the subject—

💬 Dr Lynda Scott: That’s why we want it out.

That is right—of an inquiry or investigation by a commission of inquiry, by an inquiry board, or by the Director-General of Health.

In order for those things to happen in the right way, it is very important that those clauses are omitted. For that reason, ACT New Zealand will support Dr Lynda Scott’s Supplementary Order Paper.

I would like to take a brief call on the area of quality assurance, because during the process of the Health Committee’s deliberations if there was one area that I felt was given extremely close scrutiny and where there was a genuine openness to listen to health practitioners, it was the area of quality assurance. The balance that we are striking all the time is between the rights of consumers who have a complaint and feel that health practitioners would block information they felt was essential to their inquiry being available, and the needs of true quality assurance, which is that health practitioners have the freedom to discuss their concerns in an environment that is free from shame and blame. We need to balance those two factors.

What was eventually arrived at, which I thought was more than fair, was the fact that nobody would ever be caught out. That means that if one’s quality assurance activity would possibly need to be used in an inquiry, one would know that in advance before one participated in the activity. So a person will not suddenly discover retrospectively that something he or she shared as part of a quality assurance activity can then be used against him or her, or against a colleague, in way that was not intended at the time that the information was shared. What has been put in place is a provision whereby people will now know in advance, before they make any contribution, that their contribution may be required for use in an inquiry.

Nobody will get caught out in that process, and the ongoing need for good quality assurance will be protected by the fact that people will always know in advance whether their contribution may be used.

I think that beyond that, even the Minister’s own Supplementary Order Paper 118 has strengthened the provisions in the direction that health practitioners were asking for. If I have a concern now, it is more about whether consumers are as confident about what has now been set down regarding quality assurance than it is about what health practitioners have asked for.

I move, That the question be now put.

I will just carry on the discussion in relation to the quality assurance parts of the bill. My previous occupation was as a lawyer, and I had something to do with quality assurance—sometimes the negative side and sometimes the positive side—in relation to law.

I took particular interest in these parts of the bill when it was before the Health Committee, and there are reasons for that. I have dealt with health practitioners from the legal point of view, and I have dealt with hospitals in relation to the Privacy Act. I think that many of us will know, as members of this House, that if there is one general group of professions that have overreacted in the extreme to the requirements of the Privacy Act, it has to be medical or health practitioners. In fact, all sorts of obstacles were claimed under that Act, and used as a way of not actually disclosing information. That is not to say, however, that the people I am talking about did so with malice, but, of course, they were frightened of the Act. They were frightened of the provisions in it, and they felt that if they did something wrong under the Act, they would be severely punished. I dealt with many health practitioners—nurses, doctors, and so on—who genuinely believed they would be in dreadful trouble if they disclosed information to the families of patients, but if they had actually done so, it could have, in many cases, prevented suicides and all sorts of other tragedies.

We are dealing with professionals who are not lawyers. They are people working under extreme stress and, often, under conditions where they have to make a decision in a split second. They do not have the luxury of going back, mulling it over, having a little consultation, checking it out with all their friends, colleagues, and neighbours, then perhaps deciding on a course of action. These people are at the coalface. From the doctors to the nurses, to every sort of health practitioner in an emergency or hospital situation, including the ambulance drivers, all the people throughout this sphere are at the coalface. When they are told, when they have quality performance reviews, that they will be subject to prosecution or will go before their disciplinary body if they make mistakes, if they reveal mistakes, that is a bad thing.

It is a bad thing not just for the health professionals. I have to say I do resent the Minister of Health’s implication that this side of the Committee is interested only in protecting health professionals and health practitioners. That is absolute nonsense. It is a bad thing for the public and it is a bad thing for patients when the people making life and death decisions about them are worried they will end up being prosecuted. Those people do not become nurses and doctors because they want to kill people; they become nurses and doctors because they want to help people. They do not just want to help them; they train to help them. They spend years and years of their lives dedicated to being the very best professionals that they can be. The last thing they want to do is to hurt people—quite the opposite.

In fact, what we are doing with this bill is dumbing down the health professionals. [Interruption] I see that members on the other side are awake now. The health professionals have said: “Please don’t dumb us down. Please treat us as though we are professionals. Please give us some credit for wanting to be the very best in our areas, and to do the very best for our patients, the people who come to us because they want to be helped.” They are not there, they say, because they want to cause harm. Health professionals need to know that the people of New Zealand and this Parliament have confidence that they will do the very best they can. It is so important, when we are debating a bill such as this and voting on it part by part, that we acknowledge the work that the nurses of this country do, the work that the doctors of this country do, and the work that the other health professionals do.

I move, That the question be now put.