EXECUTIVE SUMMARY

2. Most of the current statutes are old, prescriptive and are unable to accommodate changes in technology and health professional roles in a changing health sector. They do not meet the needs of the public, the regulators or the professions. The proposed legislation will provide a framework to give registering authorities more flexibility in their registration processes, but, at the same time, include adequate controls to ensure that they cannot operate restrictive practices.

3. The principal purpose of the HPCA is to protect the health and safety of the public by establishing processes to ensure that regulated health professionals are competent to practise.

4. The proposed Bill would:
   • establish the framework for the regulation of health professionals where there is a risk of harm to the public
   • establish registering authorities for each profession
   • empower the Minister of Health to appoint members of registering authorities and audit their processes to minimise their ability to operate restrictive practices
   • establish the functions of registering authorities
   • empower registering authorities to:
     1. ssess the qualifications and experience of practitioners and register them in an appropriate scope of practice
     2. review the ongoing competence of practitioners and require them to participate in competence improvement programmes if necessary
     3. certify that practitioners are competent to practice
     4. suspend practitioners if there is a risk of harm to the public

   • include a list of licensed tasks which can be practised only by practitioners who are certified as being qualified and competent to do so
   • provide for declared quality assurance activities to improve the practice or competence of health professionals.

5. This is the first in a suite of papers on related issues in response to the Gisborne cervical screening inquiry and Helen Cull's "Review of Processes Concerning Adverse Medical Events". A separate paper will be prepared on complaints and discipline processes.

BACKGROUND

6. The eleven Acts currently administered by the Ministry of Health are:

   Chiropractors Act 1982
   Dental Act 1988 (Dentists, dental technicians, clinical dental technicians)
   Dietitians Act 1950
   Medical Auxiliaries Act 1966 (medical laboratory technicians, medical radiation technologists, podiatrists)
   Medical Practitioners Act 1995 (MPA)
   Nurses Act 1977 (which includes midwives)
   Optometrists and Dispensing Opticians Act 1976
   Occupational Therapy Act 1949
   Pharmacy Act 1970
   Physiotherapy Act 1949
   Psychologists Act 1981

7. Most of these statutes are old, prescriptive and are unable to accommodate changes in technology and health professional roles in a changing health sector. With the exception of the Medical Practitioners Act 1995, none place a responsibility on registering authorities for the assessment of the continuing competence of practitioners.

8. A single, overarching Act, containing a framework for the governance and functions of registering authorities, would ensure consistency between the professions. It would also enable some currently unregulated professions, for example, osteopaths, to be regulated in the future without the need for separate Acts. New professions could be added by Order in Council.

9. The Ministry of Health has consulted with the current health statutory registration Boards and Councils, the Medical Disciplinary Tribunal, the Dentists Disciplinary Tribunal, and representatives from some unregulated occupations. A discussion document on the proposals was distributed widely in October 2000.

10. The HPCA has been allocated a priority 4 on the legislative timetable for 2001 - it is to be referred to Select Committee in 2001. Since then Helen Cull QC has reviewed complaints and disciplinary processes in the health sector and the report on the Gisborne cervical screening enquiry has been released publicly. There are implications in both for the HPCA. It is proposed that comprehensive legislation covering the HPCA, amendments to the Health and Disability Commissioner Act 1994, ACC legislation and other consequential amendments taking account of the recommendations of both reports, be introduced later this year.

11. This paper is the first in a suite of papers and covers the framework, registration process and competency provisions for the HPCA. It contains some of the recommendations from the two reports in relation to those issues. The complaints and disciplinary aspects of the HPCA will be the subject of a separate Cabinet paper once the implications of Helen Cull's "Review of Processes Concerning Adverse Medical Events" have been considered.

COMMENT

12. Using the concepts in the Medical Practitioners Act 1995 (MPA) as a starting point, the HPCA would provide that
    1. registering authorities be responsible for ensuring practising practitioners maintain their competence
    2. registering authorities be empowered to determine the requirements for registration
    3. the registration and disciplinary functions be separated
    4. oth registration and discipline functions have lay participation
    5. separate, independent registering authorities for the different professions be continued
    6. profession specific provisions be provided for.

13. The benefits of a single Act are:
    1. consistency - a uniform approach could be taken to all occupations and changes would automatically apply to all professions

    2. flexibility - enabling greater flexibility to meet changing skill sets, roles, diagnostic regimes and treatments

    3. transparency - it could be easily seen which occupations were regulated and how

    4. simplification of regulating new professions - new professions could be regulated by an amendment to the Schedules to the Act.

STRUCTURE OF THE HEALTH PROFESSIONALS' COMPETENCY ASSURANCE BILL

14. It is proposed that the principal purpose of the HPCA be to protect the health and safety of members of the public by prescribing or providing for mechanisms to ensure that health professionals are competent to practise. Framework

15. The HPCA would be an enabling Act providing a framework for the mechanisms to be followed to assure the public that health professionals are appropriately qualified and competent to practise.

    The proposed framework for the registration process is:

    • The Act would specify the principles and processes which are to be adhered to by all registering authorities
    • Provisions which need to adapt to technological and other changes in the health sector would be changed by Order-in Council under the authority of the Governor-General
    • The Minister of Health would be responsible for appointments to and controls over registering authorities
    • Registering authorities would determine the qualifications and competencies required to register health practitioners in a particular scope of practice
    • Procedures for complaints and disciplinary procedures would be contained in the Act

    A diagrammatic version of the framework can be found in Appendix 1.

Checks and balances on the power of registering authorities

16. Registering authorities would have the flexibility to determine the detail of their own rules and procedures, because of their knowledge of the professions. On the other hand, there is a risk that delegating too much authority to registering authorities may result in restrictive practices. To guard against this, I propose that the HPCA provide the following checks and balances:
    1. all members of registering authorities established under the Act be appointed by the Minister of Health, who will also have the power to dismiss members who are not adequately fulfilling their functions
    2. empower the Minister of Health to audit the registering authorities at any time
    3. separate registering authorities from each profession's association/union to avoid conflicts of interest
    4. separate disciplinary and registration functions
    5. lay representation on registering, investigatory and discipline bodies
    6. registering authorities to submit an annual report to the Minister of Health to be tabled in the House of Representatives
    7. require registering authorities to make public the rules and procedures for registration
    8. decisions of the registering authorities which affect individuals may be appealed to the District Court

Functions of registering authorities

17. It is proposed that the functions of registering authorities could include:
    1. Set minimum standards and competencies, which are necessary to protect the public, but do not unnecessarily restrict entry to the profession or impose undue costs on the profession or society
    2. authorise the registration of practitioners and maintain a register
    3. ensure practitioners are competent in their areas of practice
    4. consider applications for annual practising certificates
    5. review the competence of practitioners
    6. consider the case of practitioners who may not be fit to practise
    7. accredit and monitor training institutions or programmes
    8. exercise and perform such other functions, powers and duties as conferred on it by the HPCA
    9. receive and act on information from employers, ACC and the Health and Disability Commissioner on the competence of professionals
    10. provide information to employers, ACC, the Health and Disability Commissioner and other parties where there may be a risk of harm to the public from a professional's practise
    11. provide advice to the Minister of Health.

Registration

18. In order to obtain registration, an applicant must be able to satisfy the registering authority that he or she:
    1. has the necessary qualifications - paragraph 19
    2. is fit for registration - paragraph 20
    3. is competent within a scope of practise - paragraph 21.

Qualifications

19. Registering authorities should, within broad parameters, be able to establish the qualifications, including experience and training necessary for registration, for example, academic institutions, course syllabus, recognition of the jurisdiction of overseas registering authorities. To maintain a transparent process, registration requirements and any changes to procedure must be published in the Gazette, and be publicly available. Although many do this in practice now, it is not required by legislation.

Fitness for registration

20. It is proposed that the Act contain explicit requirements as to fitness to practice. They could include:
    1. An ability to communicate effectively in English
    2. the absence of any convictions for an offence punishable by more than 3 months in prison that adversely affects the applicant's fitness to practise
    3. the absence of any mental of physical condition which could adversely affect an applicant's fitness to practise
    4. the applicant is not subject to any professional disciplinary proceeding; or an order of a disciplinary tribunal in New Zealand or in another country that might adversely reflect on the applicant's fitness to practise
    5. satisfying the Council that the applicant has adequate skill and knowledge to practise.

Scopes of Practice

21. In a health sector that is changing and evolving due to new technologies and health professional roles, it is vital that the occupational regulation regime is dynamic and flexible enough to keep abreast of such changes and to accommodate an evolving health workforce.

22. Registering authorities should be empowered to define and set scopes of practice. A scope of practice refers to the services a practitioner is qualified and competent to offer, the parameters within which those services can be offered and a time period for review, for example, a generally registered doctor may be required to practice under supervision for a period of one year.

23. Scopes of practice will provide more flexibility than under current legislation by permitting a scope to be tailored for an individual, for example, an overseas-trained doctor could be granted registration to practice within a particular limited scope.

24. Annual practising certificates issued by registering authorities would include the scope of practice of a professional. Practitioners would be required to display their annual practising certificate at their place of work, if appropriate.

25. It is envisaged that scopes of practice would not be mutually exclusive between professions. Where members of two or more professions are qualified to provide the same service, the registering bodies should agree on consistent standards and competencies. Where the registering authorities cannot agree, the matter should be referred to the Minister of Health for resolution.