Health Practitioners Competence Assurance Bill

This part of the bill, focusing on complaints and discipline, is very important. After all, it has caused national tension over the last 10 to 20 years and a considerable amount of heartache when one goes back to the National Women’s Hospital cervical cancer inquiry, the cancer inquiry at Gisborne, and, of course, more recently, the Parry inquiry. Coming out of all of those was the Cull report. Certainly, one of the great concerns was that even though we had had those tragedies in New Zealand, it seemed as though we were unable to learn from the mistakes of history. Helen Cull QC brought together a lot of the great problems that were occurring through a lack of connection between organisations such as the district health boards, the various colleges, and the Accident Compensation Corporation. Incidents were happening that were severe, but no one was aware of the records being collated independently, and Helen Cull quite rightly suggested that a one-stop shop should be the approach towards the legislation. Whereas I have criticised a considerable part of this bill, and will continue to do so, I think that on the whole it has tended to come right in terms of the recommendations of the Cull report.

There is no doubt, however, that National’s contribution to getting this part right was in no small way due to the contributions of Dr Lynda Scott and my colleague Judith Collins, in the select committee. The processes provided by the bill are a very big jump from the way the old disciplinary and complaints procedures were held, when there were huge complaints by patients and various health practitioners that there were long delays. The whole aim of this part is to try to speed up the processes so they are fair, efficient, and coherent, and in many respects this part, on the whole, has managed to achieve that. There are some worries that some of the smaller organisations will find the compliance costs associated with the requirements considerably difficult, but, overall, because the larger organisations such as the Nurses Organisation, the medical practitioners’ organisations, and the dental groups have sufficient numbers, their organisations are sufficient to be able to cope with the costs implied in the bill.

When we get to clause 77, “Recommendations and determinations of professional conduct committee”, it is important we remember the tribunal’s recommendation that the role of the professional conduct committee should be to ascertain whether there is sufficient evidence to justify the bringing of a charge against a practitioner before the tribunal. Clearly, that is a very important issue.

My honourable colleague Dr Hutchison opened the debate on Part 4, “Complaints and discipline”, and I am very mindful of the comments he made. Clearly, this is a very important part, and it behoves this Parliament, given the inquiries that sit in the background of this legislation—starting with the Cartwright inquiry, then the Gisborne inquiry and the Parry inquiry—to ensure that we get these provisions as good as we can get them. We do not want to see in the future more of the same that we have had in the past.

I am mindful that my colleague Dr Hutchison is of the view that, by and large, this part seems to be reasonable, but, having said that, I want to make some comments about two parts of it. The first comment is that the bill establishes a single disciplinary tribunal, the Health Practitioners Disciplinary Tribunal, to hear complaints against health practitioners that warrant significant disciplinary action. I want to make the point that this tribunal will be made up of ministerial appointees. In other words, there is no provision for the profession to elect their own to judge them, and I would query that very seriously. I ask the Minister to explain why we have gone almost from one end of the spectrum to the other. I think I am right in saying that previously there was a high degree of professional representation on the tribunal, but now there is to be none. We will be subject to the Minister making all the appointments. That, in itself, I do not think is ever a good thing, because there is always the fear of politicisation of the process.

But it raises the other issue of there being very little degree of self-regulation. The people in the health sector, after all, are all professionals. A degree of self-regulation in a respectful and supportive environment is surely more likely to ensure competence—which is at the heart of this legislation—than a process that is prescriptive and that has the Minister’s hands on it. So I think that is to be regretted. There comes a time when we have to give due regard to people who are professionals. They owe it to themselves to make sure they do not bring their profession into disrepute, and therefore they can be trusted, with a degree of confidence, to make sure they behave in ways that bring benefit to them. They know very well why they are in those professions. They have the well-being and the safety of human beings in their hands.

The power of the Minister is the first point I wanted to raise as something I think we ought to be concerned about. The Minister also has the power, under clause 83, to dismiss tribunal members at will. There again, I think that that places too much power in the hands of one person, and for no good reason. Other than that, I suppose it is a feature of this Government that it tries to hold power at the centre, but that does not always work with professionals. The other point concerns representation for the sector and its members’ own ability to self-regulate to ensure competence.

I move, That the question be now put.

As we have just heard, Part 4 deals with complaints and discipline. I think it is very important to have some background information, and some of the other speakers have touched on this. The complaints process to date has been far from adequate. In fact, in some cases it has been quite shocking. Patients who have very valid complaints have waited months, and in some cases even years, to have their complaints heard, and that has been unsatisfactory for everyone. Not only does the person making the complaint have to suffer and wait for long periods of time, but also the health professional at the other end of the complaint has a long wait.

Of course, there are always a number of vexatious complaints, and these are never easy. People who think they have been wronged are looking for somebody to take the blame. The health practitioner at the other end of it also often has to wait months, and sometimes years, to have a case heard—even when it is a very simple matter—so that it can be dismissed.

I think it is fair to say that the Health Committee had a lot of discussion about this part. We received several very good submissions. In particular I would like to refer to the submissions from the Health and Disability Commissioner and from Wendy Brandon of the Law Society, and also to the submissions from the professions themselves. I think that, at the end of that process, this part of the bill was the part that probably the whole committee was reasonably content with. We heard from the previous speaker that the Minister of Health still has great powers, but the provisions we now see in this bill are much better than what we have had previously. Complaints will now all go through the Office of the Health and Disability Commissioner, and it will be more like a one-stop shop than what we have had previously.

Doctors are the ones about whom the most complaints are received. The complaints mostly go to the Health and Disability Commissioner, but any complaint dating back before 1996 goes to the professional bodies, to be referred on to complaints investigation committees. Those committees will now be replaced by professional conduct committees. The select committee had a lot of discussion about the make-up of these committees, and came to what I regard as a very satisfactory decision. When a complaint is made against a health professional, a majority of that person’s peers will be on the conduct committee. Certainly, Wendy Brandon from the Law Society was adamant that that should happen, and the professions were adamant that that should happen. Some of the lobby groups were a little disappointed, but I think that in the final instance they will be reasonably satisfied with that result, once they see how it works.

There was a lot of discussion about compliance costs, particularly for the smaller professions—the people who do not earn a lot. I think those concerns were listened to, and addressed well, by the officials. I felt they did a particularly good job in that regard, and I think the outcome will be very good. The compliance costs have been partly allayed by the fact that the secretariat from each of the professions individually will run the complaints system. It will do the administration for each one, and that should see a drop in compliance costs.

We do have to take complaints and discipline very seriously. The professions do need to be transparent. As we know, this bill is about competence, despite my concerns that competence was not able to be defined in the bill because everybody felt it was too hard. I think that a level of competence is very important, and I think we should have tried harder to define competence, but the professions will manage to do it for themselves. I am pleased that professional self-regulation will be there, even if it is not the intention of the Government.

The new, one-stop shop will, I believe, be much better for the complaints system than the one we presently have. The time that people have to wait to have their complaints heard should be significantly less. Despite the fact that the work of the Office of the Health and Disability Commissioner will increase, the commissioner seems to think he will be able to cope. I am sure there will be a good outcome for everybody. I think the amount of pressure that somebody is under when a complaints process is in train is often underestimated. The waiting is the hard part.

Can I first of all say that I agree with the member who has just spoken, in terms of her comments on this part, but I say to her that professional self-regulation, with responsibility towards the public, is the Government’s aim, and I think this part certainly encompasses that.

The point the member made regarding all complaints going to the Office of the Health and Disability Commissioner came out of the Cull inquiry. John Carter would be interested because the inquiry arose out of the Parry case involving Colleen Poutsma, and the need to ensure that there was one place where complaints could go. There was something like 14 complaints running against Dr Parry, and many of those organisations that had complaints laid before them did not know that other organisations also had complaints. So I think what has been put in place here is very sensible.

I really wanted only a short call, to answer Georgina te Heuheu regarding the appointments to the Health Practitioners Disciplinary Tribunal, and to tell her that Part 4 is exactly the same as what is in the Medical Practitioners Act. In other words, the members are appointed by the chairperson of the tribunal, from a panel maintained by the Minister. When the member was a Minister, she was probably one of those who were responsible for this part. None of the tribunal members are elected under the Act, and, obviously, the majority of them are health practitioners. This also applies to the questions asked last night by the member for Whangarei. I want to assure those members that this part is a transfer from the Medical Practitioners Act to the new Health Practitioners Competence Assurance Act.

I thank the Chair for the opportunity to participate in this part of the debate. I will take only a short call. Part 4 focuses on complaints and discipline and it is a lengthy part. We believe that a complaints and disciplinary procedure is always needed and we support this part. This part is clearly set out. It is very comprehensive, and we believe, like the previous speaker, Heather Roy, that it will be very difficult for any disciplinary tribunal to be confused. We believe that professional self-regulation is a key factor in the success of this part, particularly if one has the confidence of the public in mind. One of the concerns we did have was the apparent powers of the Minister of Health—any Minister of Health—but that has more than likely been the case in previous situations anyway, so it did not really cause us a great deal of concern. There does appear to be, though, a lot of room for influence by the various Governments of the day, but we accept that that is part of the playing field anyway. We definitely support the Health Practitioners Disciplinary Tribunal comprising a majority of health practitioners, because they do have the clinical knowledge and expertise to make a judgment on any charges that are brought forward, and we think that is absolutely essential.

In relation to this particular complaints-processing part of the bill, the Health Committee, I felt, really tried hard to get a good, consensus view. I was very impressed by the contributions of all members of the committee in trying to reach a sensible, workable solution that would work well, not only for the public but also for the health professionals and those accused of misconduct. We had some concerns, however, and we noted those in the minority report—a quite substantial minority report.

In particular, we were concerned that insufficient weight had been given by the balance of the committee to the submission from Wendy Brandon, who was representing the New Zealand Law Society. She was also there in her own right as the former chair of the Medical Practitioners Disciplinary Tribunal. She is a person with 6 years’ experience in this particular area, who is known to me as a very sensible, level-headed person who is not only a lawyer but used to be a nurse, and so brings a new perspective to this area.

One of the concerns that Mrs Brandon had was that there should be two levels of charges before the disciplinary tribunal. That issue was of concern to us in the National Party, and also to ACT—that under this bill the severity of the offence makes no difference to the naming of the charge. In other words, a doctor who rapes his patient will be charged, under this particular bill—obviously, outside the criminal area—with exactly the same charge as someone who makes an error in judgment. The National Party is very concerned because there is a huge difference, in reality, between levels of misconduct. What we are talking about here is just one size fits all. One of the problems with this bill, which we have spoken extensively on in the last 2 days, is that it is trying to do too much, and to say that everyone is just the same. Well, no, everyone is not the same. I think the patients of the former Dr Fahey would feel somewhat aggrieved that he could be charged and found guilty of professional misconduct in the same way as a doctor who made an error but certainly was not a serial rapist. So that is one of our concerns with this bill.

We are, of course, always concerned about the level of political appointment to bodies such as the tribunal. We were, however, very pleased that common sense dictated that the tribunal will comprise three professional peers of the person accused, and two laypersons, one being the chairperson of the tribunal. I think that is a very sensible solution. Some groups of people representing patients or former complainants felt that there should be only one professional peer on the tribunal, or none. Some wanted no lawyers involved, which I thought was quite interesting from a natural justice point of view. They really showed, unfortunately, that they are somewhat one-sided and one-eyed occasionally in these matters. It is very, very important that any disciplinary process has the support of the professionals it deals with—the health practitioners—because without the support of the professions it will not succeed, and that is very, very clear. The medical professionals or health practitioners involved in these tribunal hearings must feel they are being dealt with fairly.

Certainly, my own experience through the Law Society, working on the complaints committees, has been that the professional peers are almost always harder and tougher on the person complained about than the laypeople are. Laypeople tend to have a much kinder and much more understanding view of mistakes and errors.

I move, That the question be now put.