Health Practitioners Competence Assurance Bill

The Health Committee did a lot of work on this part. We tried our very best to improve it, because it most certainly needed to be improved. By majority, new clause 166A, “Review of operation of Act”, was added, and states: “(1) As soon as practicable after the expiry of the period of 3 years beginning on the commencement of this section, the Director-General of Health must—(a) review the operation of this Act since the date of the commencement of this section;”.

Members who were on the select committee know why the legislation will need to be reviewed. It is an absolute mess. We know there will be problems with it. We know there will be trouble. Everybody on the committee agreed that a review would be needed. It will be a National Government that will have to sort out the mess from this bill, because we will be in office when the review is done. The problems around scopes of practice will be the first thing we will have to sort out. Scopes of practice have been defined as “leading edge”, “cutting edge”, “new”, “untried”, “untested”, and “a new concept”. I believe that every time something like this is done, we end up with all sorts of problems. Scopes of practice are not found anywhere else in the world. The only place that tried having scopes of practice was British Columbia, and it stopped them.

💬 Judith Collins: Why?

They just did not work. British Columbia had so much trouble with them, and I think we will in 3 years’ time. We will have to go back to the Medical Practitioners Act, because this bill is supposed to be based on it.

Tonight United Future would not vote to have elected members on authorities. Had they done that, my amendments would have won. Dentists, pharmacists, and doctors would have been very proud of United Future had its members stood up and voted for them. Authorities have elected members now. They have professionalism, and they will lose it. That Minister will appoint more “fopms”. Do members know what that stands for? It stands for “friends of the Prime Minister”. There will be more “fopms” on boards and authorities all over New Zealand. [Interruption] She thinks that if people get elected, they are right. People will not be elected. The Minister will appoint people she can control so that they will not make political noise. There will be a reduction in professionalism. Doctors do not want a bar of that, and they will be extremely disappointed in United Future, because that party could have voted for our amendment. It could have voted that one amendment through tonight to let doctors, dentists, and pharmacists have elected members on their boards. But no, United Future did not vote for the amendment.

Sue Kedgley wanted any other group that came under the bill to have elected members as well. The professions want their people elected so that they can have faith in them. But no, the Minister will appoint them all. But, hey, professions will have the right to nominate! Great! We know that this bill changes the quality assurance provisions. They have been changed from the Medical Practitioners Act, and there will be concerns amongst the professions.

Some changes in the select committee were made to the quality assurance provisions, because the professions do need to be able to engage in quality assurance activities with some protection They have to know that their meetings will be confidential enough for them to be able to disclose problems. But the provision did not go far enough. I proposed amendments to it so it would go a bit further. People can access the Health and Disability Commissioner, the Accident Compensation Corporation, and a complaints assessment process in every hospital, but if we want quality assurance to work there has to be some protection for practitioners; otherwise, they will not freely discuss what goes wrong, and that will be another problem.

Then we come to the powers of the Minister. Under the bill, that Minister—or any Minister, because this Minister will be the Minister for only a very short time longer—has a huge amount of power to appoint people and to determine the scopes of practice when there is a dispute. The Minister stood up before and said that somebody had to do it. Well, let the professions sort things out. They should be doing it. Let them work things out, because that is what they have been doing for the last 100 years, but now the Minister will have control.

I shall refer briefly to the issue of the review of the operation of the Act. While this legislation has been described as a dog’s breakfast—not by me—if that is the case, then it is a very good reason to put in place the opportunity for review. I suggest that there is a more important reason that we must have a review of the operation of the Act. My understanding is that we have tried to encompass all health professionals in one single piece of legislation. There appear to be some new things in the bill, but the underlying purpose, which is the safety and health of the public, demands, after seeing how the Act is operating, and if we think there is any potential for that purpose to be diminished, that that is a good reason for a review of the Act. I think that clause is worthwhile.

The other area I want to comment on, and ask the Minister to enlighten me on, is the issue of the period of transition for membership of continuing authorities. Clause 211 sets out the meaning of the period of transition. Presumably, then this is the transition—gosh, it is John Tamihere in the chair; I hope the Minister is able to answer my question. I turn the Minister’s attention to clause 211, “Meaning of period of transition”, and then to clause 214, “Vacancies may be filled by Minister”. What period of transition is envisaged by the Minister? In other words—

💬 Hon John Tamihere: Small.

A small period; that is good. Clause 214 gives the Minister the power to appoint any person to fill any vacancy that occurs during the period of the membership of a continuing authority. Is that transition period small or big? Will the conditions or criteria set out regarding the composition of the board of any authority in clause 116 still apply when and if the Minister has to appoint a person to fill a vacancy that occurs during the transition period, and if not, why not? I am assuming that it is important, because the Minister made a big thing of this, that the majority of members on an authority will be health practitioners and that two are lay persons. If a vacancy occurs that was filled by a health professional will the Minister seek to fill that vacancy with another health professional? I guess that if it was a lay person, then the replacement would be a lay person.

My point is that if it is important—and we certainly think it is important that the majority of the membership be health professionals—then I would like some assurance that under clause 214 the Minister will replace a health professional with a health professional.

The other thing is whether, in making that appointment during the transition period, the Minister will then do what she is going to do in relation to permanent memberships on the permanent authorities. Will she or he, whoever the Minister might be, also then be calling for input for appointment from those groups or persons within the health sector to whom the authority relates? That sounds like a bit of a mouthful but I hope the Minister will be able to give some assurance that like will be replaced with like, and that no vacancy will be filled by someone who is not the same status.

In speaking to Part 7, I would like to start at newclause 166A. The select committee was very pleased to have this included, because it is very important that this legislation is reviewed after 3 years. There have been grave concerns with it, as members have heard through the periods of this debate, and this review is paramount. The previous speaker referred to the dog’s breakfast and I can tell members where that came from. The Association of Salaried Medical Specialists, Ian Powell’s group, called this “an ambitious dog’s breakfast”. They did. Ian Powell called it an ambitious dog’s breakfast. He said: “Until now, along with the NZMA, the ASMS was hopeful that the bill would be sufficiently improved through the select committee process so that it was as good as the MPA, which it was intended to replace.”

All I can say to Ian Powell is that we tried. We did our best. We tried to deal with the scopes of practice, despite the fact that they are untried and untested in this country and have failed in British Columbia. But, no, we are going to have them here because we are cutting edge, we are world leaders here! We tried to address the quality assurance activities and had partial success I suppose, but certainly they are not what they should be. We tried to deal with the huge ministerial powers, with very little success at all.

Ian Powell went on to state: “While some noticeable and useful improvements have been proposed by the select committee, the revised bill remains significantly inferior to the Medical Practitioners Act.” My Supplementary Order Paper has several amendments to this part—to clauses 169, 170, 175, 194, 195, and 196—to try to extricate doctors from this bill. They are not the only group. Pita Paraone is going to tell us that the optometrists want to be out as well.

💬 Steve Chadwick: It is too painful.

No, it is going to be much more painful for them to stay where they are, because the legislation they have at present, the Medical Practitioners Act, is a far superior and modern piece of legislation that works very well. In the time that it has been in place, quality assurance activities have improved significantly, but that is not going to happen any longer. The protection will not be there for them when they have their quality assurance. The bill is going to discourage it, and that will erode public safety.

If we flick a little further through Part 7 to Subpart 2, “Transitional provisions”, Mrs te Heuheu—I hope I have got the pronunciation right—was talking about those provisions. For some bodies, there will be significant changes and I think in particular of the Pharmaceutical Society, which is going to go out of existence completely. Pharmacists are actually very sad about that. The Pharmaceutical Society is over 100 years old and has been quite a tradition for pharmacists. I am told that because it is such a huge job it has already started to change the assets and all the bits and pieces that go with the Pharmaceutical Society into the Pharmaceutical Council, which will be similar to the other registration bodies.

It is interesting to see the Minister’s comments to these different groups, in particular to doctors and pharmacists. We know already that Mrs King certainly does not favour elections, because she does not think doctors are capable of doing the right thing and choosing the right people to represent them. It is interesting to note what she has been saying about pharmacists. Anybody who reads Pharmacy Today might have seen a report on its front page a couple of weeks ago in which the Minister states that she does not know how pharmacists can call themselves health professionals when they process photographs and sell gifts. Apparently they are not health professionals any longer. Fancy that! Obviously the Minister’s history is a bit lacking, because if she knew anything at all about pharmacists she would know that significant development in processing photographs was made by chemists themselves. That is where it started, and that is why every chemist shop in the country sends off films that people take in to have their photographs printed. [Interruption] It is part of the bill—it is the role of pharmacists. It is sad to see a Minister of Health who has such contempt for the medical profession, for pharmacists, and probably for other health professionals as well—except, I suspect, dental nurses, whom she is probably still very fond of. It is a very sad day.

The clause that members have been referring to, which calls for a review of the Act in 3 years, is arguably one of the most important clauses in the bill. We had to fight very long and hard to get that clause in. When I suggested that we needed to have some parliamentary scrutiny and ability to review the legislation because there were so many new and unresolved issues in it, the officials were totally opposed to such an idea. What we see in this bill—and it is a pattern that I have noticed in a number of bills recently—is the Government setting up a broad, overarching framework, then it leaves all the implementation, monitoring, etc, to regulation, and it ensures that there is no parliamentary scrutiny. This bill is one of those where the Government has attempted to have a broad overarching framework with absolutely no ability for parliamentary scrutiny. The vast array of issues such as scopes of practice and so forth are all to be determined by regulation, which means without any parliamentary scrutiny.

We had a major fight with the officials to get the clause inserted requiring that there be a review. The only reason we managed to get it—and I am delighted that I managed to put this provision up and that it gained support—was that we referred to the Radio New Zealand and Television New Zealand bills that are similar but which require parliamentary scrutiny after a number of years.

Thankfully, we at least have this provision. Maybe some officials are hoping that we might quietly forget the clause, that it might go away and we might not require the review to take place, but I can assure them that some members have already diarised this provision and we will be waiting very eagerly for the review.

I will be looking very closely at a number of issues, for the review. The first issue is the whole question of whether the Minister has allowed elections to be held for those professions that wish to hold elections for their governing authorities. There is a clause, which once again we managed to get in, that stipulates that the Minister may make regulations to allow elections. The wording is a little bit vague and we did hope to strengthen it here tonight, but unfortunately United Future and the Government would not support us. However, there is a provision that regulations may be issued, and we will be watching the implementation of those regulations extremely closely, as I am sure will the professions that are seeking to have elections. Indeed some of them may wish to go to the Regulations Review Committee if they find that the regulations empowering an election are somehow not issued by the Minister. We will be looking at that clause very, very closely to make sure that the Minister does issue regulations that will allow those professions that wish it to have elections.

Another thing that the Green Party will be looking at very closely is the progress, or lack of progress, with acupuncturists. I have made the point many times that if this bill were genuinely about public safety and consumer protection, then one of the first professions that we would be regulating under it would be acupuncture. Arguably, acupuncture can cause grave harm to members of the public if needles are not sterilised, or if they are put in the wrong parts of the body. Great harm can occur to members of the public, for which reason acupuncturists have been beseeching successive Governments for two decades to bring them under statutory regulation. They have made impassioned and very professional submissions to this bill, pointing out all the reasons that they need to be brought under this legislation. Unfortunately, their pleas have been ignored by the Government, and I cannot figure out why.

I move, That the question be now put.

In many respects, Part 7 of this bill could be labelled the funereal or wake part of the bill, because it deals with miscellaneous provisions, consequential amendments and repeals, and repeals and transitional provisions. It is a tragedy that the medical professions are not supporting this bill. As Heather Roy pointed out, this was described as ambitious legislation from the beginning, and there was goodwill at the beginning. There was a tremendous effort to make sure that there was a multiparty buy-in to this bill because it was so important, but because of the absolute inability of the Labour Minister of Health to listen to the professions—and this is clearly made out in the submissions—the chief executive officer of the association of full-time medical specialists has unfortunately referred to this bill as a dog’s breakfast. I understand that my colleagues had to fight very hard to have clause 166A, “Review of Operation of Act”, put in.

💬 Hon Annette King: Did National vote for it?

As I say, there are so many things that my colleagues Dr Lynda Scott and Judith Collins have had to work hard to get into this bill, because a review of the operation of the Act is very important. It may be that in 3 years’ time, or before, the Minister will finally come round to realising that professional self-regulation as the basis of health practice in New Zealand is extremely important. Hopefully, by then she may have sorted out scopes of practice. I would love her to take a call to tell us what her views are on nurse-anaesthetist practitioners. Unfortunately, she was not able to take in the facts when general practitioner – anaesthetists stopped practising several years ago. They had medical degrees and diplomas in anaesthetics, and the view was that in order to raise standards for the public of New Zealand, they would have to be phased out. I want to know what this Minister of Health’s plans are in terms of the nurse-anaesthetist practitioners. Will she be prepared to come clean?

My colleague the Hon Georgina te Heuheu spoke about clause 214, “Vacancies may be filled by the Minister”, and I ask whether that is an ingenious piece of ministerial mischief. Is that one of those clauses my colleague Dr Lynda Scott was talking about, by which the Minister may go berserk on “friends of the Prime Minister”? It says here that vacancies may be filled by the Minister, and she has the opportunity there to go quite wild. It will be a great opportunity for the Labour Party hacks and hangers-on.

Of course, once again it is a considerable concern that ministerial powers have become excessive. It is the absolutely Pavlovian-dog reflex of this Labour Government to control, and not to have the process, that has caused the major medical professions to lose confidence in this Minister of Health.

I will briefly comment on clause 154, “Application of Trans-Tasman Mutual Recognition Act 1997”. There has been some concern that some Australian registration authorities are not accepting New Zealand practitioners’ registrations, and I understand that the bill does address that problem.

I will take a very brief call on Part 7. A huge number of provisions are covered in this part, and I want to pick up on just one aspect of it. In this part we get a look at the professions that are registered under other Acts, and will now be registered under this legislation. We seem to have heard a lot about doctors tonight, and I just want to give a bit of feedback from some of the other professions that come under this bill.

I have an email from the Dental Council of New Zealand, which is pleased to support the bill. I also have an email from the Nursing Council welcoming the introduction of the bill. It is really thrilling that the bill will further protect the public by ensuring that practitioners are not only fit to practise but also competent to do so. I have emails from the Occupational Therapy Board, the Dieticians Board, and the Psychologists Board, which also support this bill as it has come out of the Health Committee. The Opticians Board has emailed us to say it is happy with the bill as it has been presented. The Medical Radiation Technologists Board is happy with it, as is the Medical Laboratory Technologists Board. The Physiotherapy Board is also happy to offer its support to the bill. So I think we need to keep a little bit of perspective here.

United Future is pleased about the review clause. We are unclear whether the National Party supported it in the select committee. As this legislation fleshes itself out over the next 3 years, any tweaking that may need to happen will become apparent. We feel that some of the provisions in the bill have been worked on to the extent that we now need to put them into operation to see how, in consultation with the professions, they work out. The review in 3 years will be interesting. I am really thrilled to have had feedback from so many health professionals whose professional futures are encapsulated in this bill, and I am thrilled with their support for the bill.

That particular contribution from United Future is a bit of a disgrace. I am shocked by that sort of contribution. Is that member going to go out and tell the few people who voted for United Future why its members, after marching down the streets of Nelson on the foreshore and seabed issue, are voting for cultural competence? How about that? That will be an interesting one for her to come back to us on.

Let us have a look at clause 154, which deals with trans-Tasman mutual recognition. It states: “Except as otherwise provided in Schedule 4 of the Trans-Tasman Mutual Recognition Act 1997, that Act prevails over this Act.” I have a serious question—as are all my questions, of course—for the Minister of Health. How are we ever going to get the Australians to accept this sort of cultural competence nonsense, under the Trans-Tasman Mutual Recognition Act? Which will prevail? Will the Australians have to become culturally competent in whatever culture we decide they have to be competent in, or will they be let off?

The reason that is such an important issue is that the Health Committee sat through endless hearings on this bill. One of the submitters we heard from was the midwives union. I like midwives. As a mother, I can say that they are generally very nice, sensible people. They are really very helpful when one is having a baby, and an awful lot more use than most people’s husbands, although, of course, not my own, who is a wonderful person. The unionist who said she represented the midwives said she thought this bill was great because of the cultural competence aspect, which would stop foreign midwives from coming into New Zealand and practising here without being culturally competent. I piped up and asked which particular foreign midwives she was talking about, and that trade unionist, who supposedly represented the midwives, said—not some sort of strange culture—Australian midwives. I think someone will have to tell her that Australians will probably be able to sneak in, too.

There is a situation whereby some Australian regulatory authorities are putting difficulties in place for some of our New Zealand practitioners. Will they now be saying to our New Zealand practitioners who go there to work because the pay and the opportunities are so much better, and because Australia has a good Liberal Government, not a Labour one like we have here, that they want Kiwis to be culturally competent in Australian culture? That will be fun, will it not? That is the sort of nonsense this Government is putting on to us. This Government is giving us the sort of rubbish that is turning us into the laughing stock of the world. Not only does it have nonsense like the flatulence tax, which has resulted in our people being laughed at by the Australians, but it is giving us this sort of cultural competence nonsense.

I ask the Minister, in relation to clause 154, what will be more applicable. Will it be the cultural competence of the Australians? Will they be considered to comply, or will they all have to be indoctrinated, like everyone else in this country, and to go around being politically correct and utterly hopeless? Is that what they will have to do? Or will we look at these people and ask whether they can do the job, whether they are competent professionally, and whether they are ethical—in which case, boy, do we want them because we have a system that is desperately short of qualified health professionals. Under this bill, the Government will make it harder for us to get those people. Once we stop the Australians coming in, because they cannot be called culturally competent—in whatever culture we are supposed to have—it will be even harder for our health practitioners to go overseas and get training in places like Australia, because the Australians will get us back big time, and fair enough.

This part is yet another example that shows that this bill has been correctly described by the Association of Salaried Medical Specialists as nothing more than a dog’s breakfast, and it is not a very good dog’s breakfast, either. It is a nonsense, and it is a disgrace that the United Future party is supporting this rubbish. The one great thing about the Greens is that they mean what they say, which makes them better than United Future.

I move, That the question be now put.

I raise a point of order, Madam Chairperson. I wanted to raise this point of order after the vote had been taken, because I did not, in any way, want to challenge your right to make the decision that you made. I think it is appropriate for me to point out, as a long-standing whip, that the debate on that part started at 8 o’clock and went on for just 35 minutes—seven speeches, by my count—which, quite honestly, is not the norm. It is unusual for a part not to have at least a 45-minute debate. I have been noticing that we seem to be going through this legislation at quite a rapid rate. It may well be that the wish is to finish the bill tonight, but given that that part, particularly, was an extensive part, as are other parts, I do ask you as Chair—or whoever may be presiding—to ensure that there is opportunity for at least a reasonable contribution by members. At least two members who were seeking the call did not get a chance to make a contribution, and I do not think it is unreasonable that, on any part, particularly one of that size, we have nine contributions rather than seven.

Following from the contribution of my respected colleague Mr Carter, I point out that the 45 minute tariff is not a reflection of the debate that has happened on these parts. Our records would demonstrate that clause 1, for example, was debated for 27 minutes, Part 1 for 57 minutes, Part 2 for 42 minutes, and subsequent parts for 36 minutes, 35 minutes, 26 minutes, somewhat more than an hour for the last part, and 29 minutes in this case. I think the Committee is appropriately allocating time as the importance of the provisions warrant, and I believe that the tariffs are entirely appropriate.

The CHAIRPERSON (Ann Hartley): I thank both members for their contributions, and remind members that it is the Chair’s call, and that I am the sole judge of when a closure will be put. I take note of what both speakers have said.

The question was put that the amendment set out on Supplementary Order Paper 111 in the name of Heather Roy to clause 155 be agreed to.