Health Practitioners Competence Assurance Bill

Part 5 deals with appeals to the District Court and the High Court, and I think that we will see the concept of scopes of practice really being tested out in courts of law. A person has the right of appeal against a decision made by an authority to decline or suspend that person’s practising certificate, or include conditions in that person’s scope, or proposed scope, of practice. It may be that foreign doctors in this country may appeal and challenge a judgment over scopes of practice and a person’s right to practice within a particular scope. It will come down to the definition of what an individual can do. We heard about Dr Monty Hornbeck. If one were to say that he could practise in a limited scope, or try to deny him practice, if he appealed that, then he could look at grounds for denying him a limited scope, or not denying him that scope, but allowing a broader scope. This is where we will find that people will test the concepts. It will probably take some years before there is case law that will really define and differentiate where the grounds of that new term lie.

The terms we heard used about scopes of practice were “leading”, “cutting edge”, and one that was used under the Resource Management Act: “permissive”.There was a similar sort of permissiveness there about scopes of practice, in that we will find how it works when we look at people challenging a decision through the District Court. I bring up the situation in Opotiki at the moment, where nurses who are running the local health centre hospital have become quite concerned that they do not have medical cover. That happened on the West Coast as well. Because they had a real lack of locum relief, practice nurses were doing first-line call in the weekends. If we are to look at people practising within their scopes of practice—and they can be taken to the disciplinary tribunal if they practise outside their scope—what will happen to the nurses on the West Coast and in Opotiki who feel that, basically, they are being made to practise outside what would be a safe scope of practice, because there are no doctors there? There are 10,000 people in Opotiki, with no after-hours doctor service. Nurses are on the front line, and some of them are expressing concern—just as the nurses down on the West Coast did—that they are being asked to practise outside of what would be their normal scope of practice. They are having to develop diagnostic skills that they feel very concerned about, because they do not have the back-up. Nurses on the West Coast pulled out of doing the after-hours roster. They did not feel that they wished to be placed in that sort of position.

We have heard a lot from the Minister in recent times about the development of nurse practitioners. There is no problem with developing a nurse-practitioner concept, so long as they can still practise within the bounds of their training. With scopes of practice, we do not want to see our medical and nursing systems being downgraded so that there is a lower level of ability, especially in rural areas, to develop and provide services.

Under the bill, people who do practise outside their scope are really putting themselves on the line. However, People practise outside their scopes every day in this country. It will be interesting to see how that works under the appeal situation. If the system is such that people are pushed to work in that way, who will get the blame? It is always the nurse and doctor on the front line who end up before the disciplinary tribunal and who have to take the rap. Eventually, they are the ones who will appeal and use Part 5 through the appeals process.

I totally agree with the member who has just resumed her seat that no one should practise outside his or her scope of practice. The member said that it happens every day now, and she wondered what would happen in the future. Although this part does not deal with scopes of practice, it is important that the Medical Council, the Nursing Council, and the councils that govern most of our health professionals have worked out, and have been working out, what those scopes of practice are so there can be no confusion as to what a person is being asked to do. No council should allow health practitioners, whether they are doctors or nurses, to work outside their scope of practice. But how does one know what his or her scope of practice is unless that council has a very clear idea? That was one of the issues that was debated earlier. The Medical Council and the Nursing Council have a very clear idea of what those scopes of practice are. They have worked very hard on scopes of practice. Many of the other professions that come under this bill have also worked hard on those.

However, this part is about appeals, and the member raised the issue that courts of law would be used to make decisions. I am sure that the Medical Council told the member that when it met me it said that often it is before the courts right now. The council goes before the court when there is a disagreement by a health practitioner who believes that it has not made the right decision. In fact, at this very moment there is an overseas doctor—a surgeon, I believe—before the courts. It is common practice. What the courts do—and what the Medical Council believes will continue to happen—is listen to the practice of the Medical Council, and what is the practice of the council that is responsible for the registration and competency of its health practitioners. They listen to the Medical Council, and that has been the case for many years. Members of the Medical Council told me they have no doubt that that is what will continue in the future.

I thank the Minister for taking a call, because she is certainly taking the odd call on these issues. I am disappointed that we have not yet heard from the chairperson of the Health Committee, Steve Chadwick, who I do not think has taken a call on this bill in the entire time that we have been debating it in the last 2 days, apart from closure motions.

Having said that, I think it is a good point that we have at least an appeal process, as opposed to a review process, of the decisions of the tribunal and the authority. An appeal process is one in which it is easier for a person complaining or appealing to actually bring a case. Quite often in these sorts of matters in the past we have had judicial reviews of decisions. They are extremely expensive and it is very, very difficult to bring about a change of opinion. I am supportive of an appeal, rather than simply a judicial review. I think that is a very good point.

Having said that, I point out that a significant amount of this part of the bill does, in contradiction to what the Minister has just said, deal with the fact that there will be appeals against findings of scopes of practice. It is all very well for the Minister to say that the courts do try to look at the current procedures of the tribunal that they are looking at in the decisions. However, the tribunals we are talking about here are brand-new. This is a brand-new tribunal that we are looking at, in terms of its processes, in terms of its composition, and in terms of the many different health practitioners that it is going to be regulating and looking at. That is one of the issues here. It is going to be quite some time before we get any case law. That will lead to a lot of uncertainty and cost. That is a concern.

This whole process is going to be, by way of appeal, far more inclined towards courts and court processes, and therefore towards lawyers and legal processes. There has been, again, a tremendous amount of concern from people like dental therapists, as to the amount of costs that might come to bear upon their particular professions. Several smaller professional groups are concerned that although they are very seldom complained about, they will end up having to bear the cost of the professions that are the subject of most complaint—in other words, the frontline people who are having to make life-and-death decisions. That is a concern and it is a facet of a one-stop shop, which this bill is all about. I would have thought that the Minister would listen to the advice of these groups, who are people trying to do the right thing and wanting to be properly regulated, but who are also very concerned that they are often on relatively low salaries and working in schools and other places where they do not earn huge amounts of money. They are concerned about those particular costs.

💬 Steve Chadwick: The committee listened.

It is nice to hear that the chairperson of the Health Committee can actually speak, as she is now doing. It would be very, very nice if she could take a call and speak to this particular bill.

💬 Phil Heatley: Say something constructive.

Something constructive would in fact be very good, thank you Mr Heatley. In many ways we are pleased with some of this particular part of the bill, but in other ways we are concerned, along with our ACT colleague, that not enough consideration is given to the practicalities. There is a tremendous amount of consideration given to the theory but, as is often the case with the Labour minority Government, there is a lot of effort put into the theory and very little effort put into the practicalities. The Government is being driven by particular groups that have its ear more than other groups do. That is a real concern. This part of the bill, and the bill itself, is going to be a particular bonus to the legal profession. It will be a bonus to the court system. I am concerned that there will not be enough room in the court calendar for it. It will take a long time.

I want to address scopes of practice briefly—although that issue is not really part of this part, but, as the Minister addressed it, I think I can probably say a little on it. The National Party member Dr Lynda Scott talked about the nurses in Opotiki in particular, but it was indicative of other parts of the country where people are working in crisis situations outside what will become their scopes of practice.

The Minister says that that is not acceptable, but the point remains that those nurses are doing it out of a sense of duty and out of necessity because there is nobody else at the coalface able to deal with the public when they have medical problems. If they are not going to be allowed to do anything at all, that will leave areas of the country with no medical staff at all to deal with problems.

When something goes wrong, of course, somebody always has to be found to blame, and that is where these things may well go to appeal, as Dr Scott pointed out. I will not go down that track any longer because I think she has said everything there was to say about the matter.

💬 Judith Collins: It’s worth saying again.

I could say it again but I have other things to address, so I will go ahead and do that. My concern with Part 5 is in relation to clause 106, “Court may refer matter back for reconsideration”. We have already heard that when a complaint process is in train it is often a very lengthy matter. [Interruption] Perhaps members opposite might like to take a call instead of just shouting across the benches at each other, if they have something productive to say. Obviously they do not have; they have quietened down again.

💬 Pita Paraone: It’s those Māori members.

That is right—they are very noisy. My concern about clause 106, “Court may refer matter back for reconsideration”, is that it will draw this whole process out and make it very lengthy indeed. The good part about Part 4, as I said before, is that hopefully the amount of time that the complaints process takes will go down significantly. In relation to the cases taken to the professional conduct committee after they have been referred on from the Health and Disability Commissioner, if somebody is unhappy with the outcome it can then be taken on through the court process. As Judith Collins pointed out, lawyers are the ones who will benefit from that, as there is often a lot of significant cost involved. The matter can then go the courts, and instead of making a determination themselves, which in most cases reiterates the findings of the complaints investigation committees, which will be replaced with the professional conduct committees, clause 106(1) states: “Instead of determining an appeal under this Part, the appropriate court may direct the authority or Tribunal whose decision or order is appealed against to reconsider,”—so it can then be referred back.

It may be the start of something just going round and round in circles, making the whole process very time consuming and putting a burden on people, when we are trying to get rid of that burden. The patient will be left with an unsatisfactory result, or the heath practitioner will be. Hopefully, vexatious complaints will be out of the system by then. However, patients who are really not satisfied with a ruling that has been made are able to draw the process out significantly.

We know that the professions are hardest on their own. We see it time and time again within the health practitioners tribunal, particularly in relation to nurses. Nurses are particularly hard on their own, and I have sometimes been staggered at the rulings that have been made. The majority of nurses on the tribunal have made particularly hard decisions against their own profession. Doctors, too, often do that, as do dentists and pharmacists. As they are the professions that have the greatest number of complaints, that is where we would expect to see that, but, that being the case, going on through the appeal process, then perhaps having the courts refer the matter back to the committees, is in some cases asking for a great deal of trouble.

The National Party member Judith Collins also mentioned that the practicalities seem to have been overlooked here. A great deal of thought and input is being given to the theory, but I wonder just how much input has gone into the practicalities. She is quite right when she says that the tribunals are new. The appeal processes are going to be looking at new and perhaps unresolved problems, which are always difficult to anticipate when looking at new legislation. I support my colleagues in the National Party when they talk about whether the practicalities have been looked at.

Part 5 sets up an appeals process, and, like my colleague Judith Collins, I think it is probably appropriate in this context, particularly when, in a sense, we are embarking on quite a new area of policy. We would not want to see the process becoming overused, because then that would indicate a failure in the policy. We are dealing with people’s rights to register and practise as health practitioners in a field where everyone is a professional, and if for some reason somebody is declined from registering with an authority, then it is only proper that we should have an appeals process.

We have rights of appeal to the District Court in relation to decisions on the directions of any of the authorities that come into play under this new legislation. We also have an appeal process to the High Court against the whole, or any part of, findings or orders made by the Health Practitioners Disciplinary Tribunal. Under clause 109 there is also provision for an appeal on questions of law. If the appeal is from the District Court, then the question of law must be referred to the High Court, and if the appeal is from the High Court, then it must be referred to the Court of Appeal. The tiered structure of the various courts is there, and I hope that the process will not become a field of activism for lawyers, because nobody wins, other than the lawyers, quite a lot of the time—and I am happy to say that, even though law is my background. What we want is legislation that is working well to protect the health and safety of the public. If we are to have people constantly appealing or questioning decisions made by an authority or the tribunal, then this House will not have reason to be proud of itself when this bill goes through.

I will pick up the issue of scopes of practice. I was thankful that the Minister stood up, at the beginning, and gave some reassurance that scopes of practice have been worked out by each of the sectors in this area, because under clause 101 there is a provision for appeal where an authority declines to authorise a change to the existing scope of practice of a health practitioner. I have been trying to work out what sort of situation that might apply to; I do not think the Minister covered that in her opening remarks, and that causes some worry for me, because if scopes of practice were a notion that could be clearly worked out and understood, then why would there be a situation in which practitioners would be seeking to change an existing scope of practice?

💬 Hon Annette King: They might be too old to continue in that scope of practice. They might decide they can’t do it any more.

OK. There we go: it is very important that that provision is here. It is to ensure ongoing competence. [Interruption] Whatever—whether it is age or anything else. I wonder whether it might have applied to Dr Bottrill. In any event, although I am supportive of this part of the bill, and of the appeals process, I do have a minor worry in that I do not want it to become a plucking-field for the legal profession. It is proper that the appeals process is included in the bill. I support it.

I move, That the question be now put.

I want to take a short call on this. I am really pleased that two of the Māori members of the Government are here in the Committee, though I wonder whether their presence has anything to do with a possible amendment relating to which courts health professionals may take their case. Could it be the Māori Land Court? That seems to be a topic of discussion at the moment. [Interruption] Never mind; we will just wait and see.

First of all, my concern with this part is in relation to the likely cost. I think that the processes that are required by both the High Court and the District Court will certainly impose some costs on the health professionals who want to take their case to that level. My major concern is that we have a saying here in our country that we are judged by our peers, so I seek some clarification in terms of where the basis for the appeal or the court action is in relation to the vocation of the individual—I want to know whether that is in question. Will those who sit in judgment have the vocational skills to be able to judge? In saying that, I am not being critical of our judiciary system; I am talking about a sense of fairness, and of being judged by our peers.

We heard one or two examples about foreign medical practitioners, in particular, who may not be approved by their peers to practise in this country, and who may argue for their right to practise, on the basis of their professional competency. Will those who sit in the court have the skill to make that kind of a decision? Will the practitioner go away feeling that he or she has had a fair go at this? Given that that may not happen, there is the possibility that the matter may get referred back to the group that gave rise to the original appeal. In my mind, that will not only prolong the process, but it will add costs. I just wanted to make those two points about being judged by one’s peers and about the costs that will be incurred, not only by the appellant himself or herself, but by the system in terms of money and the allocation of resources.

I move, That the question be now put.