Pae Ora (Healthy Futures) (3 Day Postnatal Stay) Amendment Bill

Committee of the whole House

Thank you, Mr Chair. Given that the Associate Minister of Health wasn’t addressing any clarity around the questions that have been asked by my colleagues in the previous clause, I’d really just like to ask a direct question about the use of the term “mothers”. I’m noting—although personally I fundamentally disagree with the fact that it is being changed from “women” to “mothers”, but I can accept that the Minister and the Government may not be in a place to change the language. What I’m really interested in, and I think New Zealanders deserve just a very clear response about, is checking that although the bills use these gendered terms, that the intent of the bill is actually inclusive. Is it inclusive? I’d like to hear directly from the Minister. Is it inclusive of all people who are giving birth? It would be really great to get that confirmation. Thank you.

Committee of the whole House

Thank you, Mr Chair. I’m just interested in a relatively technical aspect of this bill, but an important one. It’s not something I’ve been deeply involved with, but I appreciate there will be costs associated with this. In the new section 93A(2), inserted by clause 5, it says, “This Part applies despite anything to the contrary in any funding agreement or other instrument.” I’m aware that there are funding agreements with, essentially, hospitals run by the Crown but there are also funding agreements in particular or other agreements, contracts with private providers.

It just strikes me that this appears to create this entitlement—an entitlement that we in the Labour Party agree with. Then you’ve got these agreements with maternity providers and birthing facility providers who to date have been under contract to provide these services in a particular way for a particular period. I don’t know the details of them, but to date they have discharged the birthing parent when it has been appropriate, and it might be straight away. They might be great and off home they go or it might be after a week, but it’s been on the basis of clinical decisions.

Now that clinical decision has been deferred till three days. Now, if you look at it, the part applies despite anything to the contrary, any funding agreement—which I kind of get, because it’s probably Crown-related and we can manage that—or other instrument. If we’ve got a contract with a private provider and you’re saying the clinical decision which we have funded previously is being displaced and at minimum you’ve got to give this 72-hour period regardless and that’s not what’s in the contract for service, that’s actually quite a radical thing to do, because there’s no framework there for saying “and the Government will pay for the additional period where you’re required to have a bed available and the clinical staff available and so on.”

I’m really interested in this, because the Government, and particularly the ACT Party part of this Government, has been very keen to make sure that where there’s a framework, there’s essentially no taking. This appears pretty much in I don’t know how many words—maybe 12 or 15—to be saying, “You are required to provide 72 hours of maternity care, despite anything to the contrary in any funding agreement or other instrument.” Now, it may be that the Government intends to go back and revisit its funding agreements in other instruments, but that’s certainly not what the legislation says. It’s quite unusual for a Government in this House to start rewriting contracts. I’m very interested to know whether it’s the intention of the Government and this House in passing this legislation probably tonight to rewrite contracts, or whether in fact the intention is to say, “We don’t intend to do that. That’s not quite what we meant, although it’s drafted a bit awkwardly. We’ll go back and we will actually pay everyone for the services we’re demanding of you.”

But whatever it is, whether it’s one or t’other, it’s pretty messy, because clearly if you’re a private provider—on this side of the Chamber, we’re not huge advocates of private provision of medical services; we understand there’s a place. But if you’re a private provider and you enter into a contract with the New Zealand Government, you’re entitled to expect that the terms of that contract will be adhered to and not rewritten unilaterally here. I’d be very interested in the comments on that.

Committee of the whole House

Just in response to the Green Party member’s question: yes, I’m confident that this bill will provide the care for the birth of babies.

Next, in response to the Hon Dr Duncan Webb’s question, this clause was in the original member’s bill and guarantees three days of stay—even if future Governments underfund maternity care.

Committee of the whole House

Thank you, Mr Chair. I am looking at new section 93B in Part 3A, which is when does the clock start. The 72-hour period starts at the latter of the time of delivery or the time of admission to inpatient care. You’d hope not many people were in the situation described in subclause (b) there, because that’s pretty rough—having the baby before you’re admitted.

But let’s talk about (a), the time of delivery. I’d like to know: when is the time of delivery? Is it when the baby is delivered or is it when the placenta is delivered? Under normal circumstances, the placenta can take an hour to come, and that hour might make a difference. I’m just wondering when delivery is said to occur: at the conclusion of the second stage of labour, when the baby is out; or at the third stage of labour, when the placenta is out?

Committee of the whole House

Thank you, Mr Chair. We come now to the part of the amendment that I have the most concern with, really, and that is the struck-out new section 93C regarding the requirement to provide information regarding the 72-hour minimum.

The reason I say that is because if we look at new Part 3A, inserting “Access to inpatient postnatal care”. Then we look at the words of new section 93A, “Purpose of this Part”, and it talks about providing mothers and babies with access to a minimum. Then at new section 93B, we hear about mothers and babies being entitled to be provided. When we sat on the Health Committee, it was very clear to us that this was being championed as a new right: a new right that was going to empower women, mothers, the birthing experience, and that it was all about universality.

Yet what we see now in new section 93C struck out is the requirement to provide information regarding the 72-hour minimum. That means those privileged people who are aware of this brand-spanking-new law will no doubt be entitled to their entitlements—to quote somebody in this House—and will put their hand up, whether they need that extra care or not, and make sure they get every cent worth of their publicly funded care so that they can have a good and important and bonding time with their baby.

But those who are more vulnerable and who do not know—so they do not know what they do not know—they won’t know that they’re entitled to that. And if somebody doesn’t tell them that they’re entitled, and if somebody leans on them because there’s a hospital bed that’s needed for some other reason or there’s bed block because there’s a workforce shortage or there are people in the corridors getting treated—which happens so frequently in our hospitals these days. How was it that the access that is written into this legislation and the entitlement that is written into it and the purpose and everything about this bill and the way it was sold to us by Catherine Wedd and championing this entitlement in this new set of rights, it was going to take us into this new era for mothers and women. How was it that that can occur and that the requirements of those words can be met if there is no requirement to provide information to people?

That is a very genuine question—I’d also actually like to ask why the words were struck out, like what was it? Was it a funding question? It must have been, because there can be no other reason.

The second question is: what are the consequences if somebody doesn’t get the care they’re entitled to? What are the consequences if somebody cannot, for whatever reason, be looked after for 72 hours and they get kicked out of their room and they have to go home? What if there is a catastrophic clinical event? Because we know jurisprudentially that laws can only work when they have consequences attached to them and people understand what the natural flow and logical flow of events is that will happen if the law is transgressed.

But we don’t seem to have this here. If we do, I apologise, but I haven’t seen it. We have an entitlement where there is no requirement for everybody to know about, and then we have an entitlement that is silent on what the consequences will be. It might just be that somebody goes home, they get kicked out, they don’t get to use the 72 hours. They might not even worry about it; they may never know about it. But what if they go home and something happens and they have a haemorrhage or some other catastrophic clinical event? Then it turns out when they go to the Health and Disability Commissioner, they did not receive their entitlement—either knowingly because they could not be given the 72 hours, or unknowingly because they did not know about it and therefore could not access their entitlement? All of that is written in this legislation and yet there seems to be huge gaps in what the legislation speaks to about what will happen in those circumstances. Could the Associate Minister of Health please let us know?

Committee of the whole House

Just to the Hon Dr Ayesha Verrall’s questions about the 72 hours’ start line. That is a clinical decision around when the 72 hours will start, and I have full confidence in the clinicians to make sensible decisions in that space.

As to new subsection 93B(2)(b), I think it is quite common—I know of several instances where people didn’t quite make it to the hospital to have their babies or those that have chosen home birth and need to come in for care after that. Both clauses are relevant.

In relation to the removal of the informing clause, as you’ll note in the original clause, it talks about the lead maternity carer providing advice. As you know, it’s not always a lead maternity care that gives the care. Amendment Paper 647 removes the provision that the lead maternity carer has to inform. It does not remove a mother’s right to be informed about their entitlements relating to maternity care or their options available to them. The Code of Health and Disability Services Consumers’ Rights requires practitioners to give sufficient, accurate, and understandable information so women can make informed choices about their care. This is legally enforceable. If a person believes their rights are breached, they can make complaints. This has been highlighted in the Amendment Paper and that’s why it has been removed.

Committee of the whole House

Thank you very much for that fulsome explanation, Minister. In the event when the Associate Minister of Health talks about a legal requirement, that probably isn’t a significant issue until such time as there is actually a breach of somebody being informed of everything they need to be informed of. And then if there are severe medical consequences, suddenly there is a question over who is culpable and there are different accountabilities in the health system. How does the Minister propose that that is going to be worked through if the law is vague and uncertain on whose duty it is to provide that information regarding the entitlement?

CHAIRPERSON (Tom Rutherford): The question is that the Minister’s amendments to clause 5 set out on Amendment Paper 647 be agreed to.

Amendments agreed to.

Clause 5 as amended agreed to.

Committee of the whole House

New clause 6 Schedule 1 amended, and the Schedule

CHAIRPERSON (Tom Rutherford): Members, we come now to the debate on new clause 6. This is the debate on “Schedule 1 amended” and the Schedule. The question is that clause 6 as inserted by Amendment Paper 647 be agreed to.