EXECUTIVE SUMMARY

2. On 14 May 2001, Cabinet agreed (CAB Min (01) 15/1) that the proposed HPCA replace the current 11 health occupational regulatory statutes and noted that the paper was the first in a suite of papers on related issues in response to the "Report of the Ministerial Inquiry into the Under-reporting of Cervical Smear Abnormalities in the Gisborne Region" and Helen Cull's "Review of Processes Concerning Adverse Medical Events".

3. This paper is the second in the suite of papers and contains recommendations on the complaints and disciplinary processes for the HPCA. It is complementary to the accompanying paper on proposed amendments to the Health and Disability Commissioner Act 1994.

4. The proposals in this paper are consistent with the requirement that all consumer complaints relating to incidents which occurred after the introduction of the Code of Health and Disability Services Consumers' Rights are referred, in the first instance, to the Health and Disability Commissioner (HDC). In some circumstances it may be appropriate for the HDC to refer the complaint to the appropriate registering authority either for an assessment of competency as part of the HDC investigation or for the registering authority to take the appropriate action.

5. It recommends that registering authorities be empowered to establish Complaints Investigation Committees to investigate complaints referred to it at the discretion of the Health and Disability Commissioner, complaints which occurred prior to the Code of Health and Disability Services Consumers' Rights, notification of convictions from the registrar of a court and other issues which, in the opinion of the registering authority, warrant some action to be taken in respect of the practitioner's practice.

6. It proposes the establishment of one disciplinary tribunal for all the professions registered under the HPCA, chaired by a barrister or solicitor of the High Court, with three practitioners from the same profession as the practitioner under investigation and three persons who are not health professionals.

COMMENT

Competence of health professionals

7. Under the provisions already approved by Cabinet for the HPCA, registering authorities will be empowered to
   • Review the competence of a health professional at any time and be required to review it after receiving a notification that there are reasonable grounds for concern
   • Require health professionals to undertake a competence review if requested to do so by the registering authority
   • Either decline to issue an annual practising certificate or set conditions on a health professional's practice if the authority believes the professional has failed to maintain a reasonable standard of professional competence.

8. It is further proposed that, if a practitioner fails to meet the competency standards of the registering authority after undertaking, or refusing to undertake, a competency programme, after due process, the registering authority may suspend the practitioner until they to undertake a competency programme.

9. All consumer complaints about a health professional's practice must, in the first instance, be referred to the HDC. It is proposed that, when a complaint is received by the HDC, which in his opinion, is best resolved through the competency processes in the HPCA, that the HDC may refer the complaint to the appropriate registering authority for action.

Professional Issues

10. The HDC may also at his discretion, after preliminary assessment of a complaint, refer the complaint to the relevant registering authority if he concludes that the registering authority is the most appropriate organisation to deal with it. This may occur, for example, where the complaint relates to the professional behaviour of the health professional which does not involve patient care nor pose a risk of harm to the public.

11. The registering authority may also be made aware of issues involving professional standards through sources other than a consumer complaint to the HDC.

Complaints and Disciplinary Processes

12. It is proposed that the processes in the HPCA relating to complaints and discipline be based on the provisions in Part VIII of the Medical Practitioners Act 1995 (MPA) with some modifications as follows.

Complaints Investigation Committees

13. It is proposed that registering authorities be empowered to establish a Complaints Investigation Committee (CIC) to consider:
    • complaints referred to it at the discretion of the HDC

    • complaints which refer to an incident which occurred prior to the Code of Health and Disability Services Consumers' Rights

    • notifications of convictions from the registrar of a Court, and

    • other issues which, in the opinion of the registering authority, warrant some action to be taken in respect of the practitioner's practice.

Membership of CICs

14. Under the MPA, the President of the Medical Council appoints a Complaints Assessment Committee (CAC), but it may not include a member of the Council. Some current registering authorities, including the Medical Council, support this approach because they consider that it is important that the complaints investigation be seen to be separate from the registration processes. Some, on the other hand, most notably the Nursing Council, consider that it is valuable for Council members, who have knowledge, experience and expertise, to be involved in the complaints procedures because of the links between the two processes.

15. There will be complete separation from the registering authorities for those major complaints in relation to breaches of the Code of Health and Disability Consumers' Rights that are being investigated in the Office of the HDC (refer to accompanying paper on amendments to the HDC Act). The CIC will, on the other hand, be considering complaints which have been referred to the registering authority by the HDC because he considers that it is the appropriate body to deal with them. The course of action for the registering authority will, in many cases, be of a remedial nature rather than disciplinary.

16. In view of this, I recommend that the HPCA be permissive of both approaches, with a committee of three members, of which at least one is a lay person.

Powers of CICs

17. Under the MPA, CACs are not specifically given investigatory powers. It is proposed that they be empowered to investigate complaints, hence the recommended name change, so they can decide knowledgeably what action is required in response to the complaint. In order to do this a CIC need to be empowered to:
    • appoint a legal assessor who may, at any time, advise the committee of matters of law, procedure and evidence
    • hear evidence from the complainant and the practitioner
    • take advice from clinical or other experts at any time.

18. A CIC should also be required to report to the registering authority, at any time during the investigation, if the committee believes that members of the public may have been put at risk, or will be at risk in the future.

Courses of Action

19. Following investigation, it is proposed that the CIC should be able to determine whether:
    • the registering authority should review the competence of the practitioner

    • the registering authority should review the practitioner's fitness to practise (physical or mental health)

    • the registering authority should censure the practitioner

    • the complaint should be the subject of conciliation

    • the matter should be referred back to the HDC

    • a charge should be laid before the Health Practitioners Disciplinary Tribunal

    • the matter should be referred to the Police

    • no further steps should be taken.

20. In the case of an HDC referred complaint, the registering authority shall advise the HDC of its determination in each case for inclusion in the proposed HDC's database of consumer complaints.

Disciplinary Tribunal

21. There was strong support in the submissions received in response to the Discussion Document on the HPCA and Helen Cull's "Review of Processes Concerning Adverse Medical Events" for the disciplinary function to be separate from the registration function of registering authorities. Currently, only the Medical Practitioners Disciplinary Tribunal (MPDT) and three Dental Disciplinary Tribunals are established as separate tribunals.

22. There is also support for the concept of one disciplinary tribunal for all health practitioners registered under the HPCA. The major concern of the current registering authorities is the cost which may be incurred. Currently all the costs of the MPDT are met by the Medical Council from a disciplinary levy. Some of the smaller registering authorities, for example, the occupational therapists, have very few complaints, especially of the seriousness of those likely to be heard by the Tribunal. The Dental and Nursing Councils would prefer to keep separate disciplinary tribunals for efficiency reasons.

23. The arguments in favour of one tribunal are:
    • transparency from the public perspective that the hearing is fair for both the complainant and the practitioner

    • minimising the ability of the profession to protect their practitioners

    • consistency of treatment between professions

    • the establishment of expertise and skills in disciplinary processes

    • the costs will not be significantly higher than the combined costs currently incurred by the registering authorities.

24. There are several options for the location of a tribunal:
    • stand alone as for the current MPDT

    • in the office of the HDC

    • under the Tribunals Division of the Courts.

25. The HDC considers that his role is to investigate complaints and the office does not have the expertise or resources to conduct the disciplinary function. Nor does he consider it appropriate for it to do so - there would be a conflict of interest if he was both investigator and adjudicator.

26. The Tribunals Division of the courts is a possible option, but would not have any significant advantages over the stand-alone option and there could be pressure for the Crown to meet the costs if it is perceived as a government agency. The registering authorities are more likely to take ownership of it, and consequently meet its funding, if it is a stand-alone organisation.

27. It is proposed that there be one tribunal, the Health Practitioners Disciplinary Tribunal, established under the HPCA, which is fully funded by the registering authorities. To meet the concerns of some of the registering authorities about costs, the costs of the Tribunal will be met by the profession of the practitioner under investigation and may be recovered, in full or in part, from the practitioner if the disciplinary charge is found to be justified.

Membership of the Tribunal

28. The Cull review recommended there be a judge as Chair. However, there will be a wide range of practitioners covered by the tribunal, not just medical practitioners, with a diverse range of complaints. It is commonplace to require that at least one member of a disciplinary tribunal, and perhaps the Chair, be a barrister or solicitor of the High Court, but it would be very unusual to require that the person be a judge. The MPDT has, as chair, a barrister or solicitor of the High Court of not less than seven year's practice, whether or not he or she holds, or has held, judicial office. This has proved satisfactory for the MPDT and is a less costly option.

29. The Cull review also recommended that there be three practitioners and three lay members sitting on the tribunal. The MPDT has four members (other than the Chair) three of whom are practitioners and one not a practitioner. There is support from a consumer perspective for having equal numbers of professional and lay members on the tribunal in the interests of fairness for the complainant. Some professions, on the other hand, while accepting the need for consumer representation, consider that there should be a majority of their professional peers on the Tribunal.

30. It is proposed that:
    • the Minister appoint a chairperson and one or more deputies, each of whom shall be a barrister or solicitor of the High Court who has held a practising certificate for at least seven years

    • six other persons, (of whom three shall be practitioners of the same profession as the practitioner under investigation and three persons who are not health practitioners) be appointed by the chairperson from a panel appointed by the Minister.

    The professions are likely to raise the composition of the tribunal at the Select Committee stage of the Bill.

Grounds for Discipline

31. Under the current regulatory statutes, there are a range of charges which a practitioner may be found guilty of, for example, conduct unbecoming and professional misconduct under the Psychologists Act 1981, and professional misconduct, including professional negligence, under the Dental Act 1981. Under the MPA, a medical practitioner can be found guilty of:
    • disgraceful conduct in a professional respect

    • professional misconduct

    • conduct unbecoming a medical practitioner, and that conduct reflects adversely on the practitioner's fitness to practise medicine.

32. These categories are subject to different interpretations. It is proposed that these three categories be replaced by two charges, malpractice and professional misconduct, which more appropriately describe the likely causes for discipline. The differing degrees of severity would be recognised by the Tribunal by the penalty imposed.

33. The other grounds under which a medical practitioner may currently be disciplined regarding convictions, practising outside their scope of practice or breaching an order of the Tribunal would be extended to cover other practitioners.

Penalties

34. The MPDT may under the MPA:
    • order that the practitioner be removed from the register

    • order that the practitioner be suspended for a period not exceeding 12 months

    • order that the practitioner practise only in accordance with such conditions that may be specified in the order for a period not exceeding 3 years

    • order that the practitioner be censured

    • order the practitioner to pay a fine not exceeding $20,000

    • order that the practitioner pay all or part of the costs and expenses.

    It is proposed that the HPDT be empowered to impose these penalties, except that the limit on the fine of $20,000 should be raised to $30,000 to take account of past and future inflation. The means of the professional would need to be taken into account by the HPDT when determining the level of the fine.

Appeals

35. Cabinet agreed at its meeting on 11 May (CAB Min (01)15/1) that appeals against decisions of registering authorities which affect the rights of individuals lie with the District Court. Appeals against decisions of the MPDT under the MPA are also subject to appeal to the District Court.

36. There has been some suggestion that the High Court might be more appropriate for appeals against decisions of the Tribunal. However, the fees for the High Court are higher, waiting times could be considerably longer and the outcome may not be different from that of the District Court. It is proposed, therefore, that appeals under the disciplinary procedures of the HPCA also lie with the District Court.