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JULY 2003 - HEALTH PRACTITIONERS COMPETENCE ASSURANCE BILL AND MEDICAL PRACTITIONERS ACT

The Association of Salaried Medical Specialists has withdrawn its support for the Health Practitioners Competence Assurance (HPCA) Bill. The Medical Practitioners Act 1995 (MPA) should be retained and not repealed by the HPCA Bill.

We have come to this firm conclusion because in our assessment repeal of the MPA would compromise the health and safety of the public owing to the serious deficiencies in the HPCA Bill. As an occupational group medical practitioners have distinct medical-legal responsibilities and accountabilities inclusive of the referral, admission and discharge of patients. With the exception of dentistry no other health professional group has this level of responsibility and accountability. Consequently it is critical that the legislative regime for the protection of the health and safety of the public remains robust and is not eroded.

The ASMS has many concerns with the Bill but the most critical in terms of the health and safety of the public are:

1. Conformity of ‘scopes of practice’ with registration provisions of the MPA.

2. Quality assurance provisions.

3. Setting of codes of ethics.

4. Right of elections to the Medical Council.

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BACKGROUND TO THE BILL

The Bill seeks to achieve a highly ambitious objective of covering a broad and diverse range of health professional occupational groupings for the purpose of the legislative protection of the health and safety of the public.

In general terms there are three categories of health professional occupational groups that fall within the ambit of this objective:

1.      Those with modern legislation, specifically the medical profession covered by the
         Medical Practitioners Act 1995. Unlike the other professional groups with legislation
         this Act goes beyond registration to include matters such as competence and quality
         assurance.

2.      Those with out-dated legislation (eg, the dental and nursing professions whose
         registration legislation was enacted in 1977 and 1988 respectively). In general these
         occupational groups have legislation that covers registration in various forms but,
         unlike the MPA, not competence, quality assurance and related matters.

3. Those with no effective legislation (eg, some of the allied health professions).

The Ministry of Health released a discussion paper on the Bill in September 2000. It made it clear that the Bill was to be based on, and certainly not less than or inferior to, the Medical Practitioners Act (MPA). For example, the paper affirmed the Government’s commitment to “introducing new legislation to replace the current raft of health occupational acts, in line with the Medical Practitioners Act 1995 (MPA)”.p.3) Further, the Ministry stated that the proposed Bill, which then referred to ‘health professionals’ rather than ‘health practitioners’ in its title, would “…use the concepts in the MPA as a starting point”. These are:

lay participation in both registration and disciplinary functions
registering authorities being responsible for ensuring practising practitioners maintain their competence throughout their careers, not just at the time of registration
registration authorities being empowered to establish the detailed requirements for registration, with these not designated in legislation
separation of the registration and disciplinary functions
quality assurance activities which seek to improve the practice or competence of medical practitioners.’ (p.3)

The Ministry commented that the ‘MPA is the only health occupational regulation statute that places a responsibility on the relevant registering authority (the Medical Council) for the continuing competence of practitioners.’ (p.13) Further, the ‘MPA contains provisions requiring colleagues, employers or educators to notify the respective registering authority if they believe a person is not fit to practise because of some mental or physical condition. (p.15)

Another feature of the MPA commended by the Ministry in its discussion paper was the concept of quality assurance activities through which the ‘intention was to give medical practitioners a forum to discuss freely problems they may have encountered in their work, without fear of recrimination.’ Such was the Ministry’s commendation that it recommended, after noting the MPA was the only legislation that provided quality assurance provisions, that they ‘be extended to all professions.’ (p.17)

The Ministry also introduced the now significant new term, ‘scopes of practice’. (p.9-10) However, the term was only discussed briefly and was terminology new to the health sector, at least to the medical profession. But the use of this term was quite different and much more modest than what was to emerge subsequently in the HPCA Bill.

In defining scopes of practice as ‘the services a practitioner is competent to offer, and the parameters within which those services can be offered’ (p.10) the Ministry saw them as based on the registration provisions of the MPA. Specifically the Ministry stated:

For example, the MPA has mechanisms to limit the scope of a doctor’s practice to that in which he or she is competent to perform safely. The categories of registration in the MPA (general, vocational, temporary and interim) all constrain the scope of a medical practitioner’s practice by imposing educational, assessment or supervision conditions. (p.10)

The importance of the HPCA Bill being in line with the MPA was not confined to this 2000 Ministry discussion paper. In its report back to Parliament the Health Select Committee noted in its commentary that:

The Bill was drafted using the Medical Practitioners Act 1995 as the base document, as that Act is the most regulatory statute for health professionals. All of the underlying concepts of that Act were carried through to this bill. (p.2)

Legislation that goes to the heart of the health and safety of the public requires thorough, rigorous engagement and debate between those who make and shape policy on the one hand and those who have practical and professional expertise on the other. Although lines on paper might suggest a thorough consultation process, inclusive of the preparation of a draft bill for consideration by relevant professional and other organisations, there was no effective engagement and debate of the level required to develop robust overarching health professional occupational legislation based on the MPA. This lack of engagement includes the key issue of scopes of practice and how they might be consistent with registration (general and vocational) under the MPA.

In contrast to the MPA which is deeply rooted in professional self-regulation, the broad direction and tenor of the Bill can now best be characterised as:

significant reduction of professional self-regulation;
enhanced potential for realisable political and bureaucratic interference in critical areas that impinge upon the health and safety of the public;
held together by the untested concept of ‘scopes of practice’ that originates from the Ministry of Health rather than from health professionals and has not been jointly developed; and
risking a decrease in the engagement of the medical profession resulting in a greater risk to the public.

The support of medical groups, including the NZ Medical Association and the Association of Salaried Medical Specialists, for the concept of an overarching Bill was always predicated on the Bill being based on and in line with the MPA. The MPA is generally accepted modern legislation that is working well as a protector of the health and safety of the public. However, it is clear that the Bill is significantly inferior to and significantly less effective than the MPA in providing a legislative framework for protecting public health and safety. The areas discussed below further elaborate on this.

There is no sustainable argument that an effective legislative protection of the health and safety of the public (ie, the MPA) should be replaced by new legislation that those with significant expertise in the field assess to be distinctly and potentially dangerously inferior.

‘SCOPES OF PRACTICE’

The Bill incorporates a significant shift in the approach to registration of medical practitioners that itself has not been debated or originated out of a process of engagement between the Ministry of Health (the driver of the Bill inclusive of this policy shift) and the medical profession.

Specifically, the underlying premise for registration under the current MPA is that the registration authority (Medical Council) sets the standard (eg, scope) for each branch of medicine and the individual practitioner seeks to be recognised as being able to practice within this standard (with or without general oversight or on a probationary, interim or temporary basis). Constraints on what those practitioners might undertake within their standard in particular settings (eg, infrastructural support and resources) can then where applicable be introduced through, for example, credentialling at a district health board level.

In contrast the HPCA Bill allows for individualised ‘scopes of practice’ to be applied for with the registration authority acting as an approval body. In other words, the standard is tailored for individuals.

The Minister of Health genuinely believes that the registration board (eg, Medical Council) would set the standard for broad ‘scopes of practice’ that would ensure the continuation of standard setting as provided under the MPA. The Health Select Committee also appears to be operating under this misapprehension in its commentary of the report back to Parliament. However, the potential for this to be eroded over time is significant because of the ambiguous nature of the Bill’s wording. In the first instance, the HPCA Bill blurs the distinction between registration (standard setting) and credentialling (what individuals or groups of individuals can do within the applicable standard that they have achieved in specific settings) whereas currently they are separated out – the former in the MPA and the latter in the specific employment setting.

Further, the Bill itself contradicts this belief. For example, Clause 12 covering principles guiding the prescribing of qualifications, in particular (b) and to a lesser extent (c), lends itself to a gradual implementation of individualised ‘scopes of practice’. Sub-clause (b) states that the qualifications ‘may not unnecessarily restrict the registration of persons as health practitioners’.

Another example is Clause 10(2), outlining how registration authorities may describe ‘scopes of practice’, also lends itself to the individualised approach with two of the criteria being ‘by reference to tasks commonly performed’ and ‘by reference to illnesses or conditions to be diagnosed, treated, or managed.’ Either one of these criteria could be used successfully (possibly through legal action) to have a narrow individualised ‘scope of practice’ recognised by a registration authority. A number of other clauses (Clauses 5, 10, 12, 16, 18, 19, 20 and 21) in the Committee’s redrafted Bill also suggest an individualised scope.

The policy principle underlying this concept appears to be that all health professions could benefit from a more flexible approach to what they traditionally do. The argument may be that individuals should gradually accrete or discard the areas in which they can practice with experience or after not using a skill for a time. In the context of medicine this concept currently lies behind the concept of credentialling. In contrast to scopes of practice under the Bill, credentialling is policy based and was the product of extensive discussion within the profession and normally subject to agreement from doctors. Credentialling is embedded in the setting a practitioner works in and is reliant upon employment relationships. Registration is legislatively based and is better suited to a less detailed approach. The two concepts should not be merged without widespread public debate.

PROTECTION FOR QUALITY ASSURANCE ACTIVITIES

The discussion of these provisions is underpinned by the Ministry of Health’s determination that protected quality assurance is not a methodology that should be used routinely. As such this represents a significant policy shift on a critical public health and safety matter.

Every discussion with the Ministry around the provisions has included reference to Waitemata Health’s (as it was then known) use of the quality assurance provisions to prevent investigation of a mental health incident. The Ministry of Health previously released a background paper to a joint professional groups (medical, nursing, mid-wifery and allied) indicating that the Ministry would be reluctant to declare an activity a protected quality assurance activity under either piece of legislation. This is unfortunate and unwise as this type of activity has potential to increase patient safety. This potential increase in patient safety is being sacrificed so that practitioners can be unduly and unreasonably held to account for mistakes.

Even the MPA provisions give a very high degree of ministerial control over declaring an activity to be a protected quality assurance activity but there is an underpinning difference in which the MPA gives greater recognition to protected quality assurance as a routine methodology.

The MPA, in summary, allows the Minister of Health to declare an activity a protected quality assurance activity, which protects any person participating in the activity from civil liability. [s67, s68] She must be satisfied that the activity is carried out in the public interest. [s68 (3) (b)] Information that becomes known solely as a result of a declared quality assurance activity cannot be used in any judicial proceeding (s70) except where the Minister is satisfied that information relates to conduct that does or may constitute a serious offence. The Minister can then authorise disclosure for the purpose of investigating and prosecuting that offence, or for a Royal Commission or Commission of Inquiry. The exception to this is where the disclosure is not of fact but of an expression of opinion ‘unless the information consists only of matter contained in a report prepared by a person who engaged in the declared quality assurance activity’. [s72 (2)]

The HPCA Bill proposes a different definition of a quality assurance activity which focuses more on the competence of the individual practitioner and less on the evaluation and assessment of health services provided by that practitioner. [HPCA Clause 51(1) “quality assurance activity (a) an activity that is undertaken to improve the practices or competence of one or more health practitioners” cf. MPA s66 definitions “Quality Assurance activity means an activity which consists of, includes, or results in an assessment or evaluation of any health services provided by a medical practitioner”].

A quality assurance activity loses protection by virtue of Clause 52A as soon as any acts or omissions that it is concerned with become the subject of an inquiry or investigation by a commission of inquiry, an inquiry board under the NZPHDA, by the Director-General of Health, inquiries under s95 of the Mental Health Act or the police (except under the Coroners Act) for the duration of those inquiries. This inflexibility will mean that a quality assurance exercise which has the potential to enhance patient safety will either have to proceed without protection or will have to wait until one (or more) of these inquiries is concluded. The process could take years. In addition the revised Bill requires that any protected quality assurance activity be carried out under the auspices of a ministerial appointee. This is not required under the MPA.

Overall the HPCA Bill contrasts with the MPA in this section by:

focusing protected quality assurance on the practitioner rather than the health service provided by the practitioner;
once an activity is declared protected, shifting the onus away from the Minister to revoke the protection and automatically revoking it once an inquiry under section 52A is declared. This means quality assurance must cease for the duration of the inquiry;
and requiring an activity to take place under the auspices of a ministerial appointee and putting in place stringent reporting requirements.

Importance of Not Eroding Professional Self-Regulation

Professional self-regulation is not defensible as a principle unless there is some substance and rationale behind that principle. Its continuation cannot be justified simply on the basis that it is a well-entrenched principle. Principles must have ongoing relevance to justify their continuation. Professional self-regulation in the context of the complexities of medicine is a powerful promoter of standards of care and consequently a powerful protector of the health and safety of the public. Reasons for this include:

when a health professional has been involved in setting standards and has ownership of those standards they enforce standards themselves without the need for complex enforcement machinery;
the effective utilisation of professional expertise in complex matters;
political, bureaucratic and ideological influences that might compromise standards of care can better be resisted;
greater likelihood of practical and workable outcomes;
most of the work and much of the cost of running training and education and maintaining standards is undertaken by the professionals themselves;
standards and knowledge are often international thus allowing New Zealand and New Zealanders to remain internationally competitive;
enhanced credibility and acceptability among both professionals and the public; and
professional self-regulation can be complementary rather than contrary to lay involvement (as is currently provided for in the MPA).

Two provisions in the HPCA Bill as reported back have the potential to severely erode the advantages to the public of professional self-regulation: removal of the setting of professional codes of ethics from the profession to the statutory authority and the abolition of the right of election to the authorities.

Responsibility for Setting Codes of Ethics

The HPCA Bill makes the setting of codes of ethical conduct the responsibility of the registering authorities [Clause 114(i)], in this instance the Medical Council. This is in contrast with the current situation in which the medical code of ethics is set, following consultation with other medical groups, by the medical profession through the NZ Medical Association. Coupled with the Minister of Health appointing the authorities, this would destroy an important check on the power of government. It is inappropriate to have this function performed by a statutory body, whether or not it is largely (possibly wholly) politically appointed.

The medical profession is accountable and responsible to its ethical codes but the Medical Council is neither accountable to nor responsible for the medical profession. Instead the Council’s accountabilities and responsibilities are derived from statute. In the event that the registration authority was able (as under the proposed Bill) to set the medical profession’s ethical code, it is likely that the medical profession would develop its own regardless. Potentially there could be two codes in competition thereby risking confusion and uncertainty in future interpretations and deliberations including in the judiciary.

Election to Registering Authorities

The Bill has provision for the Minister of Health to allow elections to an authority (eg, Medical and Dental Councils) by regulation [Clause 116(3)] but she has made very clear that she will not so regulate. Submissions from medical groups sought to preserve the right to election of some professional members as an important component of professional self-regulation. Although the Minister of Health will be required to seek nominations [Clause 116 2A] all these registration authorities will ultimately be appointed by her or her successors.

The argument for the provision of elected representation to comprise some of the membership of the Medical Council (also applicable to Dental Council) is the benefits for health and safety of the public and the credibility of the Council among the medical profession and the public knowing that a part of its membership is there because of an express mandate from their expert peers compared with political appointees. Elected representation is currently balanced by lay and appointed members.

Where to Next?

The HPCA Bill now awaits the next stage of the parliamentary process following the Health Select Committee report back. Meanwhile medical groups, particularly the NZMA and ASMS, have concluded that the revised Bill remains significantly inferior to the MPA despite its original objective and the statement of the Select Committee discussed above, and that in the interests of the health and safety of the public, the MPA should be retained. The practical effect of this assessment is to withdraw support for the Bill as it applies to medicine.

The most practical and effective way is to remove the repeal of the MPA from the Bill and allow both pieces of legislation to continue separately. A positive amendment to the Bill made by the Select Committee is a review of it three years after its commencement. This review process could be utilised to then assess the performance of both Acts and whether they might be merged or further refined. A three-year review period of operating both Acts should provide valuable information and insight over the best way forward.

This approach should not undermine the intention of the Bill as overarching legislation but rather it recognises that the task was too ambitious in one attempt given the wide diversity of occupation regulation of health professionals. This would not mean that other health professional organisations would then argue that they should also be excluded from the Bill. There is a prevalent view among their representative organisations that the Bill in its present form remains deficient in several areas but nevertheless is preferable to their current occupational legislation that lack competence and other educational provisions (some groups have no legislation at all). Consequently their approach is to endeavour to further improve the Bill through the supplementary order paper process.

Further, these representative organisations understand and respect each others positions. With the exception of dentistry all have been participating in a collaborative joint professionals group that made its own joint submission to the Select Committee and continues to make representations on the Bill.

The government should keep the MPA for doctors and withdraw doctors from coverage by the HPCA Bill.

Ian Powell
EXECUTIVE DIRECTOR