Health Practitioners Competence Assurance Amendment Bill

Thank you, Madam Chair. It’s a pleasure to rise and talk on this very, very good bill, the Health Practitioners Competence Assurance Amendment Bill. I propose to talk on Part 1 of this bill, but first, before I do that, I would like to commend our very friendly and hard-working Health Committee and all the officials for their great work. When I was reviewing what we had done, because this was quite some time ago that we’d done this report, we actually did a lot of work—a lot of really good work. So I would just like to congratulate the officials and the entire team. We came to some really good outcomes, I believe.

So I’m going to speak very briefly on two parts that I think are particularly interesting to me. One is—and I did raise this originally when I spoke in the second reading—around the opportunity for the electronic mechanism for, basically, having a practising certificate issued. Now, the reason I think this is particularly useful is that under new clause 5A of this bill, it ensures that we’re more modern, but, actually, when we listened to all the health practitioners out there, I was absolutely gobsmacked to discover the hundreds of thousands of certificates that were issued manually across the health practitioners’ organisation. So it’s actually a really positive move forward.

I raise that because we discussed quite clearly how having an electronic practising certificate will be managed, and I think we managed to work this through very well. Essentially, a practitioner must issue an electronic address. If their certificate has been revoked, it’s really important that they are given an electronic notice of that or they have it physically returned, and they’ve got, essentially, 14 days to do so. Now, what we thought about was “Hey, what if someone doesn’t get that notice and fails to receive or give receipt of that?”, and, essentially, what will occur is a fine. So there is an actual penalty for not returning that certificate.

That brings me on to the second part of this bill, which I particularly like, and I do have a couple of questions for the Minister in the chair. So we’ve talked about an electronic certificate and what I would like to talk about is the next part of this, and that is particularly, I guess, what we’re all concerned about, which is when a certificate needs to be surrendered. That is, essentially, when there’s been a notice of conviction or practice issues with the person. I’m particularly proud of this particular part of the bill. I’d like to read a little bit of that, with your permission, Madam Chair.

So this is new section 67A, “Action to be taken by authority on receipt of notice of conviction”, which says that “(1) This section applies if a responsible authority receives a notice of conviction—”, and it’s about “an offence punishable by imprisonment or a fine exceeding $1,000; or … is otherwise an offence that the authority considers raises concerns about the appropriateness of the conduct or about the safety of the practice of the health practitioner.” It’s particularly useful. We’ve often known about people who have concerns, so it’s really important that this is addressed.

The part that I’m particularly pleased about is the compassionate aspect of what we’ve put in place. So the first part is they must “refer the notice of conviction to a professional conduct committee, or”—and this is the part I really like—“order the health practitioner to—(i) undergo any specific medical examination and treatment; or … undergo any specified psychological or psychiatric examination, counselling, or therapy; or … attend any specified course of treatment or therapy for alcohol or drug abuse.” So this puts that compassionate aspect into the treatment—for example, if someone has a drink-driving conviction but is an orthopaedic surgeon, losing their career might not be the right method.

This part of the bill enables that process to, basically, balance out, based on public safety, etc. But it’s not just about “You have to go and do these things.” You also must have a date that you have to comply to do these specific things and a date to report back. So these are really important aspects of this bill. I think it is tremendously compassionate but also practical that we do this.

Now, what we haven’t said—and this is the question I have for the Minister—is what might happen should the person fail to do so. Now, essentially, if the person doesn’t do this in the time frame, for example, or they may be in the process of having counselling, etc., but that is not necessarily useful or hasn’t been completed, what might happen at that point? I’m essentially just wanting to know. These are health practitioners. These people have our lives in their hands, etc., so what might happen in your reading, Minister—would that prevent them continuing to practise or not? I think that I will leave it there. Thank you.

I will address the question that the member Angie Warren-Clark has raised, but I also do want to first put on record my thanks to the Health Committee, who have worked on this bill and made quite a number of significant changes on the way through, and for the better, actually. This is a good example of what a good select committee process looks like, in my view.

The review work done, of course, which fed into this, was work that came about under, well, actually, the two previous Governments. There was a review in 2007 and a review in 2012, and that work has been put into the shape of a bill which makes things more transparent and gives the public confidence in an Act that is working well. So it brings it up into the modern age. It contributes electronic decision-making and so on to the process.

The question the member asks is around the electronic certificate: when is it surrendered and what might happen if people fail to undertake counselling or other prescribed treatments? My understanding—and I’ll ask officials to give me advice if I haven’t got this in the right, plain English—is that, of course, there could be recommendations made by the committee that provides guidance, and the responsible authority could reach a different conclusion. This whole Act really—or great chunks of the changes we’re making—is about instilling confidence in the public, giving more feedback to the public about complaints they’ve laid, and making sure that we actually have a fit for purpose Act that is relevant to modern-day practice.

So, alongside all of these changes, I also want to acknowledge the constructive role that the responsible medical authorities have played in interacting with my office and with the select committee to make this bill fit for purpose. I do want to acknowledge that it is an Act that’s largely working well and the regulations are largely working well as they stand. The short answer to the member’s question is that if they refuse to surrender their certificate—if that’s the recommendation—it is an offence under new section 33(4) in new clause 5C.

So that’s all I wanted to say at this stage for my early contribution, other than to say that the public should have good confidence in the workforces represented here, the steps that we’re taking to make sure that they are encouraged to work together more, that there’s a more integrated workforce plan, that there’s going to be more transparent reporting, and that as a result of the increased transparency in the mandate that the responsible authorities have, we will also have better data collection for future workforce planning. So, given all of those things, we have a bill that’s going to make the Act even better. It seems to have a good deal of agreement around it, and I expect that this will be a friendly debate filled with bonhomie, acknowledging the good work of those who work in our healthcare system and the way in which the regulatory authorities work to protect the interests of the public. Thank you, Madam Chair.

Thank you, Madam Chair. In my contribution I’d just like to focus on clause 28, inserting new sections 122A and 122B, which talk about the requirement for performance reviews for responsible authorities, because at the moment we’ve got a situation where the general public really doesn’t have any idea about how efficiently or effectively responsible authorities are carrying out their required functions. I think with performance reviews what they provide is that valuable opportunity at a point in time for organisations to reflect and think about how effectively they are functioning, and not only thinking about their strengths and opportunities but also taking a good look at some of their processes and policies and thinking about how they could be improved.

So what new sections 122A and 122B talk about is the fact that now these responsible authorities will be required every five years to undertake a performance review, with that first review happening within the first three years, and what the process that’s outlined would be is that the Ministry of Health needs to consult with those responsible authorities about the terms of reference for that review and also appoint an independent reviewer. What we’ve talked about in the Health Committee, and one of the recommendations that came through, was adding some extra sections there about who else the ministry might consult when they’re thinking about those terms of reference, because there’s a lot of other organisations—for example, professional bodies—that are very familiar with the work that the responsible authority does. Having their input into it so that those terms of reference are quite effective in identifying what some of those functions of that responsible authority are—so that’s that additional bit of emphasis there so that we can get a much more effective review.

But the other thing is it’s about transparency. So, once completed, the reviewer needs to provide a report back through to both the Minister and the responsible authority, and what they have to outline is the conclusions they’ve reached but also any recommendations for the responsible authority to change. With that transparency, as soon as possible, that responsible authority needs to put that report up on their website so that everybody’s aware of what that review identified and those potential recommendations for future change.

The original bill, though—what it didn’t include was any mechanism whereby that responsible authority had to take into account any of those recommendations. So what has been included subsequently was the requirement that that responsible authority in their annual reports immediately after receiving that information—what they need to do is in that report outline which of those recommendations they plan to implement, and also the timeline for that implementation. But if they decide that they aren’t going to implement some of those recommendations, then they need to outline why.

So I think what this does in terms of the bill in this particular area is it’s going to make it much easier for members of the general public to understand how effectively these responsible authorities are performing their functions. The onus is on that responsible authority to make sure that that information is available to the general public but also to outline very clearly and take very seriously those recommendations and how it’s going to implement them, and if it decides that it won’t implement particular recommendations, it needs to be very, very clear about why. So I think this actually adds a lot in terms of the bill in terms of the way that we oversee our medical practitioners and our health practitioners and their competency within the sector. Thank you, Madam Chair.

Thank you, Madam Chair. It’s a pleasure to speak to this bill, which has made its way through the Health Committee and was thoroughly investigated in the select committee. Fundamentally, this bill I think is sort of adding protections to the four key actors across the system. If we identify those actors, we have patients, we have providers, we have responsible authorities, and then, just to the side, if you like, we have the Health Practitioners Disciplinary Tribunal. I think the protections to all of those actors are quite significant in this bill and I’d like to just talk to some of them. Some of them have come post - select committee and been raised—maybe even some in the second reading.

Certainly, if we look at some of the benefits to patients, previously, the only people who could refer to the responsible authorities were health practitioners, employers, or the Health and Disability Commissioner. One of the clauses in this bill says that a range of sources needn’t be that narrow and that general members of the public can refer people to the responsible authority. This is a good thing, and I think as we look back across the submissions from the select committee, most people were saying that this is a good thing that several agencies—several people or entities, if you like—should be able to refer to that very important committee. So there are protections there for patients.

If we look around at protections for providers as well, there are benefits in this bill for them, because otherwise the Health Practitioners Competence Assurance Act could just be a down on providers, and that’s not the case. There are protections and benefits to them too. Now, previously, it used to be that if you were appearing before a tribunal, the tribunal would need to meet and then decide to prohibit publication of name pending a hearing, and indeed we were made aware that in some instances those providers had been named before the hearing had even appeared. What this this bill does is it allows the chairperson of the tribunal to actually make that decision to prohibit the publication of a name if it’s in the interests of the tribunal. That’s a reassurance and a protection for providers, so that they should be pleased with that. This is not just a down-on-providers sort of bill.

I think that responsible authorities benefit here too, as you heard my colleague just say. They’re reviewed every five years. I think this is a good thing. The Health Practitioners Disciplinary Tribunal (HPDT) also has some benefits here, although mostly administrative, and a lot of discussions arose from this particularly around the funding of the Health Practitioners Disciplinary Tribunal. The discussions that were had were around whether it should be on a pro rata basis. Everyone agreed with that—that the more people in the profession, the more risk; therefore, the greater contribution you should pay to the HPDT.

However, there are a number of substantive professions like the nursing profession, for example, who said, “That’s unfair. We’re low risk and the biggest profession, and we’re going to overly contribute.” I think there is some argument there, but I think their better argument was that “We’ve got thousands of people who are registered with us but not practising and they’re unlikely, if ever, to come before the tribunal.”

I think this is a very valid case and the committee did, as did officials, and the departmental report reflected that inasmuch as how the HPDT team will now be funded will still be on a pro rata basis, but it will be by members who are practising at the end of the financial year, not just registered. This is a big benefit to the New Zealand Nurses Organisation and other large organisations that, actually, those who are more at risk and more likely to appear in front of the tribunal will be those who will be contributing.

I think what was also interesting—just to close off that segment, if you like—was that the cost to all practitioners of funding the Health Practitioners Disciplinary Tribunal is $1 per year. So when you average that out, it’s actually not significant.

I’d also just like to comment on Supplementary Order Paper (SOP) 190. We’ll be supporting this. It has two main actions and it’s very clear on the order sheet here that both of these we agree with, and so we’ll be supporting it. We’ll be supporting this bill and this SOP further. Thank you.

Thank you, Madam Chair. We had an extensive process, as others have commented on, and I too want to acknowledge the collegiality across the House in terms of this bill. I just want to reiterate the purpose of the Act, which is to protect the health and safety of members of the public by ensuring health practitioners are competent and fit to practise their professions via their scopes of practice but also to ensure professional competence.

I want to highlight that in our contribution to the definition of professional competence, it actually centres around the cultural competence aspect, because of what came through from many of our submitters. We had 49, and all of the regulatory bodies submitted—there are 16 of those. They made it really clear that, actually, their commitment to Te Tiriti o Waitangi and their commitment to ensuring that they, as regulatory bodies were competent in giving effect to the Treaty were incredibly important. So you’ll see in section 118(i) in new clause 27(1A), we have added that it must include standards that will enable—and I quote—“effective and respectful interaction with Māori)”.

I highlight that because that was a standard contribution across all those regulatory bodies. I think there’s a growing recognition of the importance of cultural competence within clinical practice and that, historically, we haven’t emphasised that as we might have, or as we should have. In fact, if you have medical competencies, but don’t have the cultural competencies to engage and interact with those patients that Dr Reti outlined, then, actually, you become really ineffective. So as an addition to this bill, I want to acknowledge that we were really clear in supporting the regulatory bodies’ call for that specific inclusion. But, in saying that, it didn’t actually diminish our regulatory bodies or our professionals from also engaging with other New Zealanders—new New Zealanders—and having Pacific competencies, having Asian competencies. But at the heart of it was actually ensuring that the people who were receiving the services received those services in a way that upheld their culture. So I actually think it’s quite a big deal, us including that in the bill, and that’s why I’ve chosen to highlight it.

The other aspect of the work that we did was in terms of the workforce data, and we were really clear that we thought the collection of workforce data was incredibly important. Another aspect of that that we have included as an amendment to the bill is the requirement to include ethnicity and gender. The reason that we did that, again, was to ensure that our regulatory bodies were fit for purpose going into the future and that there were opportunities for many of our medical practitioners. I just want to highlight for people who don’t know that in terms of the 16 regulatory bodies, they span chiropractic, dental, dietician, medical, midwifery, nursing, occupational therapy, optometrist, osteopathic, pharmacy, physiotherapist, podiatrist, psychologist, and psychotherapy.

So what we’re now saying is that within each of those specific sectors who provide medical services to the people of New Zealand, from our perspective, the workforce that provides that service is incredibly important. So the requirement now to also report against gender and ethnicity, I think, will provide an impetus for some of those professions to look at how they are representative and what they can do to encourage not only more women into their professions but also more Māori, more Pacific, and more Asian.

The reason we’ve highlighted that was the relationship to cultural competency. It’s not only individuals having cultural competency but the professional bodies and the professions themselves needed to have cultural competency, and how do you demonstrate that? You actually demonstrate that through your workforce. So, for me, the relationship now between our focus on cultural competency and ensuring that we collect that data is going to make sure that we have a fit for purpose workforce, which is absolutely the intention of this piece of legislation. So, well done us—we did that as a committee, and so I want to acknowledge that. Thank you.

I want to pick up on one or two things that have been said—briefly—to discuss and also to speak to the Supplementary Order Papers (SOPs), which I probably might have done in my initial contribution but will do now. I think one of the things that Dr Reti raised that I haven’t covered is the review of the authorities every five years, which I think is a valuable thing which will give the public confidence, and having that now enshrined in the Act is a very useful thing. The member Louisa Wall just raised the issue of cultural competence. I’m assuming that that will also be covered as they go through that review. So I do want to thank the Health Committee for the various suggestions they’ve drawn out in the process of receiving so many submissions.

I want to again draw attention to the fact that this legislation may not make great headlines. It might in the New Zealand Doctor or some such, but we probably won’t have the cover of the New Zealand Herald tomorrow, if my sources are correct on this particular topic. But this legislation matters a great deal actually for New Zealand, and it matters certainly to the practitioners who are practising that they can have confidence in the way that they are regulated and that they are being held to account, and that the public can know that the professionals in our health system are doing a good job. So I think it’s important that the House appreciates how significant this legislation actually is, although it may not capture the headlines in the way that some other legislation does.

Dr Reti also drew attention to the fact that the costings of the tribunal essentially amount to $1 per health practitioner per year, and I think that’s extraordinary, that’s good, and that points to efficiency. Of course, some of some of the changes we’re making around electronic certification and so on, allowing documents to be electronic, will improve efficiency further and bring the Act into the modern era where that is contemporary practice, and there’s no reason why we shouldn’t have that in any case.

Now, I wanted to speak to a couple of the SOPs which make minor, technical amendments but don’t really represent a change in policy per se. One is that we will be reverting to the current provision in section 80 of the Act, rather than proceeding with the proposed amendment in the bill to amend section 80 of the Act, to allow professional conduct committees to make a determination to place one or more conditions on a practitioner’s scope of practice. This is something I’ve had a few conversations with the responsible authorities about. It’s come to an amicable conclusion where everybody’s happy with the outcome, but it actually required a bit of working through. It’s one of those things that I think around the select committee process there were some submissions one way and another. Actually, the conversation amongst the responsible authorities had not concluded at the stage that the select committee process itself had concluded, so it was nice to have the extra run-on time to work through those issues and get to the right place so that we actually continue to allow them to have the jurisdiction that is appropriate.

The other SOP—a minor, technical amendment—is one around section 116A of the Act that enables the Director-General of Health to publish in the New Zealand Gazette a consolidated list of all responsible authorities and the health professions for which they are appointed. So it stated that the main change to the bill in this SOP is the retention of the current section 80 of the Act, which means that professional conduct committees will continue to be able to recommend that a responsible authority review a health practitioner’s scope of practice, but it will not be able to make a determination to place conditions on a practitioner’s scope of practice.

So, overall, the bill’s changes, including those in the SOPs, will improve information available, and it will give confidence to New Zealanders that when something goes wrong in health treatment, there is an authority besides the Health and Disability Commissioner that can look into the incident and take appropriate action, if possible. The changes will improve operation and will improve responsiveness to people’s concerns about practitioners, improve public confidence in the operations as they do that, and improve integrated services through encouraging collaboration between different responsible authorities and the practitioners that sit under them.

Thank you, Madam Chair. I rise to take another brief call in regards to new section 69A, “Interim suspension of practising certificate pending prosecution and investigation if risk of harm to public”, in new clause 15AA. I wanted to discuss this aspect of the bill because it provides a power that perhaps—and we discussed this at quite some length—may be considered as the suspension of your rights as a practitioner. It’s really important that we talk about this and how we would manage the process of ensuring that natural justice occurs.

So, essentially, there is an aspect where—and we’ve all heard of these situations—a health practitioner is perhaps up on a criminal conviction of a serious nature, they have a proceeding pending against them, or they’re being investigated. So, essentially, in the opinion of the practitioner’s responsible authority, they have to hold a belief that there is a risk of serious harm to the public, and if they do so, at that point there is the ability to suspend the practising certificate of that person because of that risk. The bar is quite high—it’s “serious harm to the public”—but, as we know, the person has not yet been convicted, and they have not yet been investigated.

So this is quite a serious aspect, and it’s important that we talk about this because how we have managed this in the legislation is that the suspension can occur and it can occur quickly, but the person whom the suspension applies to has the ability at that point—they have 20 working days—to respond. They can be heard personally, they can have a representative, or they can make a written submission on the matter. That takes care of the aspect of natural justice and also public safety. So this bill is very clearly about the aspects of balance between ensuring public safety and ensuring that people are certain they are safe with their practitioners, and also ensuring that there is natural justice involved as well.

So at the point after those 20 days, there are different steps that can occur at that point. There are four of them, and I’m not going to go through them, but, essentially, they are that if you’re satisfied as a responsible authority, it can be revoked and the person will practise again, right through to where if in the investigation it’s found to be reasonable, the person is a risk to public safety. So these are things that we considered in quite some depth. It was extremely important that we did have that balance, and it was extremely important that we did ensure that the public would be safe in these very rare circumstances where there is a serious risk of harm to the public.

I think that I will leave it there, but I wanted to raise this matter particularly because, as the Minister has said, this is actually a really useful and important bill, in that it does some quite far-reaching things which are all to ensure that we, as citizens, can have good faith in our health organisations. Thank you.

Thank you, Madam Chair. I’d like to talk a little bit more about new section 134A in clause 29, which talks about the health workforce data, because what is a requirement in the bill is that the responsible authority provides the Director-General of Health with information about their health practitioners. So there was the provision, which is often collected already by many of these responsible authorities—I’m thinking about date of birth and where a person works and also their hours of work. As a select committee, we also recommended that other aspects, including ethnicity and gender, also be routinely collected. Many of the responsible authorities actually already collect a lot of this data. Many of us who are familiar with filling out our annual practising certificates are familiar with providing information on how many hours we worked in what specialty, who our employer was, our age, etc.

But what this will do is it will ensure greater consistency across the responsible authorities so that we have very similar information for our doctors, for our nurses, and for our allied health professionals, and so we can look from a planning perspective across that wider spectrum of professions and have a real sense of where our workforce is. But also within each of those responsible authorities, or each of those professions, we can look through and see where our workforce is spread. So, for example, if we’re thinking about general practitioners, we can look across and see what the average age of our GPs is and also where they’re practising, because are we thinking about workforce development in our rural areas and also being able to predict, if we’ve got an aging workforce, how we might need to be able to think about our training programmes and bringing that next generation of workforce through.

The other thing within each of those professions is that we were asking that we would look at gender and ethnicity, because I think if we’re thinking about how we deliver culturally appropriate services, we need to know what health practitioners we’ve got in terms of being able deliver those services for workforce planning, and also for gender and thinking about gender equity in terms of many of our professions.

The other aspect is also thinking about—so, for example, within medical practitioners—the levels of specialisation. I know in my own time working with child health professionals, there were a lot of concerns that we only had one or two paediatric pathologists who could look at that very particular skill mix—in thinking about succession planning. So I think it’s very, very important that the responsible authorities are available to provide this information—

I’m sorry to interrupt the member, but the time has come for us to report progress.

House resumed.

The Chairperson reported the Local Government Regulatory Systems Amendment Bill without amendment, the Local Electoral Matters Bill without amendment, the Commerce (Criminalisation of Cartels) Amendment Bill with amendment, the Financial Services Legislation Amendment Bill with amendment, the Accident Compensation Amendment Bill with amendment, and progress on the Health Practitioners Competence Assurance Amendment Bill.

Report adopted.

The House adjourned at 9.57 p.m.