2012 Review of the
Health Practitioners
Competence
Assurance Act 2003
August 2012
A Discussion Document
Citation: Ministry of Health. 2012. 2012 Review of the Health Practitioners Competence
Assurance Act 2003: A discussion document. Wellington: Ministry of Health.
Published in August 2012 by the
Ministry of Health
PO Box 5013, Wellington 6145, New Zealand
ISBN 978-0-478-39380-4 (online)
HP 5539
This document is available at www.health.govt.nz
Contents
Executive summary
viii
How to have your say
v
Introduction
1
1
2
3
The Health Practitioners Competence Assurance Act 2003
1
Purpose of the review of the HPCA Act
2
Principles to guide the review
3
Process and timing
3
Future focus
4
Overview
4
Workforce development and the purpose of HPCA Act
5
Health practitioners working in teams
5
Scopes of practice
6
Information contained in scopes of practice
6
Increasing workforce flexibility
7
Principles for developing or reviewing scopes of practice
7
Mobility of the health and disability workforce
8
Improving the pastoral care of health practitioners
8
Consumer focus
10
Overview
10
Public understanding of HPCA Act
10
Public involvement in decision-making
11
Transparency of information and processes
11
Safety focus
13
Overview
13
How the HPCA Act works within the health system
13
Discussion
14
2012 Review of the Health Practitioners Competence Assurance Act 2003
iii
4
Cost effectiveness focus
16
Overview
16
Risk framework underpinning the HPCA Act
16
Regulatory options to manage consumer risk
18
Could we improve the cost effectiveness of the HPCA Act?
19
Current system
19
Balancing the cost of public protection with access to services
19
Importance of data collection systems to inform sector intelligence and planning
20
Increasing standardisation across professional groups
21
Size of RA boards
21
Improving employers’ ability to manage cost impacts
22
Other issues
22
Summary of questions in the Health Practitioners Competence
Assurance Act 2003 Review public discussion document
24
Future focus
24
Consumer focus
24
Safety focus
25
Cost effectiveness focus
25
Abbreviations
26
Appendices
Appendix 1:
Summary of responsible authorities and the professions they
regulate
27
Appendix 2:
International environmental scan
29
Appendix 3:
Additional information on the Acts that interface with the Health
Practitioners Competence Assurance Act 2003
41
Models of occupational regulation
46
Appendix 4:
List of Tables
Table 1:
Principles to guide the review
3
Table 2:
Summary of stages and timeline for the 2012 review of the Health
Practitioners Competence Assurance Act 2003
3
Table A1:
Table A2:
Professions regulated under the Health Practitioners Competence Assurance
Act 2003
27
Summary of legislation and its interface with the HPCA Act
44
List of Figures
Figure A1:
Comparison of initiatives across a sample of international jurisdictions
29
Figure A2:
Functional elements of regulatory options
51
iv
2012 Review of the Health Practitioners Competence Assurance Act 2003
Executive summary
This public discussion document is the start of the 2012 review of the Health
Practitioners Competence Assurance Act 2003 (abbreviated here to HPCA Act). It will
assess the impact of the HPCA Act on the public, health care service providers and
health professionals, and will determine if the HPCA Act is continuing to meet the
requirements of a rapidly changing health sector.
The main purpose of the HPCA Act is to protect the health and safety of the public, but
the HPCA Act must balance several competing priorities in order to fulfil its function.
The review will look at how HPCA Act is functioning within the wider health system
and how it (or the broader regulatory environment) could be improved. International
trends in health occupational regulation point to a strengthening of consumer
protection, standardisation of legislation and the design of institutions, and improving
the performance of regulatory authorities.
There are four principles against which the HPCA Act will be assessed, each of which
relates to a specific focus.
Future focus
To sustain our health service New Zealand needs to be able to attract and retain a
workforce that delivers services within a lower growth funding path, in the context of
an ageing workforce and significant numbers leaving for overseas in any one year. Our
current services are mainly configured around historical patterns of population
demand and traditional models of care that are labour intensive and expensive to
sustain.
To meet these challenges we need to move away from a focus on hospital services and
admissions and towards better, sooner, more convenient service delivery through the
integration of primary care with other parts of the health service. The core safety
function of HPCA Act needs to be balanced against ensuring that its indirect (but
strong) influence on the shape of the workforce matches the needs of a changing sector.
In line with usual regulatory governance structures, responsible authorities (RAs) are
set up to work independently, and yet the requirements they place on health
practitioners shape how they practise in order to remain within their professional and
legal requirements. This document looks at how RAs can ensure their requirements for
health practitioners keep pace with what the sector needs in an environment that is
undergoing transformational change.
2012 Review of the Health Practitioners Competence Assurance Act 2003
v
Although regulation is generally managed along professional boundaries, these
boundaries are increasingly shifting and becoming less distinct in complex clinical
environments. Consumer care and the protection of consumer safety are increasingly
dependent on how multidisciplinary teams and clinical networks operate.
The key value underpinning the HPCA Act is the accountability of individual health
practitioners for their own clinical practice and application of professional judgement
in their clinical practice. The challenge is to ensure this key value operates effectively in
a changing environment.
Consumer focus
The views of consumers and the public generally will be an important input into this
review, particularly views on how confidence in the safety of health and disability
services can be maintained and enhanced and whether consumers have access to the
necessary information to make good decisions about health practitioners. A consumer
focus requires transparency of information and processes, and appropriate
representation in the regulatory processes.
Safety focus
The core function of the HPCA Act is to provide a mechanism to regulate occupational
groups to ensure the safety of the public. However, other legislative mechanisms are
also concerned with public safety, so it is necessary to consider how the HPCA Act
contributes to the overall system of government regulation, and whether the role of
professional regulation in safeguarding the public is supported and complemented by
the responsibilities of employing organisations.
It is therefore necessary to consider whether there is an appropriate balance between
the safety concerns of employers and the requirements of government regulation. For
example, if employers already have all the systems in place for groups of health
professionals to keep the public safe from harm, what additional value does statutory
regulation have in this situation?
Cost effectiveness focus
Safety in health and disability services is a critical element, but it comes at a cost. The
more that professions are regulated, the greater the potential for regulation to affect
the volume and cost of services available to meet the needs of the public. It is therefore
necessary to consider the trade-offs required and whether the balance is appropriate.
As part of this discussion there are considerations around which professions need to be
regulated, whether a graduated risk-based regulatory regime should be considered,
whether there are efficiencies that can be gained by reviewing the regulatory processes,
and how the collection of data can contribute to risk management efforts.
vi
2012 Review of the Health Practitioners Competence Assurance Act 2003
Scope of the review
The review will assess how:

the HPCA Act supports the delivery of the workforce required, both now and in the
future

pastoral care for the health and welfare of health professionals, to support the
sustainability of the workforce, can be improved

a robust data collection system to inform sector intelligence and planning can be
developed

the HPCA Act can work effectively within the wider health environment, and
whether the purpose of the HPCA Act remains fit for purpose

the health occupational regulatory settings can be improved

the HPCA Act can provide optimal levels and types of regulation for the next five to
ten years

the operational functioning of the HPCA Act can be improved.
The review builds on the work already completed by the Ministry in conjunction with
the sector. This includes not only an operational review of the HPCA Act (2007–2009)
but also a 2010 public consultation, How Do We Determine if Statutory Regulation is
the Most Appropriate Way to Regulate Health Professions?
2012 Review of the Health Practitioners Competence Assurance Act 2003
vii
How to have your say
You are invited to submit feedback on the information set out in this document. In
particular, it would be helpful to receive your responses to all or any of the specific
questions included at the end of each section and gathered together at the end.
You can download and email the submission form to:
info@healthworkforce.govt.nz
or post your submission to:
HPCA Submissions
Health Workforce New Zealand
National Health Board, Ministry of Health
PO Box 5013
WELLINGTON 6145
You can also download this document and other information including dates and
venues for the regional public meetings from http://hpcaactreview.hiirc.org.nz.
The closing date for submissions is Friday 26 October 2012.
viii 2012 Review of the Health Practitioners Competence Assurance Act 2003
Introduction
The Health Practitioners Competence Assurance
Act 2003
The purpose of the HPCA Act is to protect the health and safety of the public.
Responsible authorities (RAs) fulfil that purpose by ensuring that all health
practitioners registered with them are competent in the practice of their respective
professions.
To achieve its purpose, the HPCA Act allows a high level of self-regulation for health
practitioners to maintain competence within prescribed scopes of practice. It also
provides for an independent disciplinary tribunal to hear disciplinary complaints
against health practitioners.
Under the HPCA Act, every health practitioner who practises in a regulated profession
must be registered with the relevant RA. They cannot perform activities that are part of
their profession but that fall outside the scope of practice for which they are registered.
A health practitioner can perform activities that are within another scope of practice
provided they do not hold themselves out to be registered in that other profession.
There are currently 16 RAs responsible for implementing the HPCA Act for the
22 professions covered by it (see Appendix 1 for a list of RAs and the professions they
are responsible for). Each RA has a governance board or council, with some members
appointed by the Minister and approximately a third being laypeople.
The RAs develop scopes of practice with associated qualifications. They regulate their
professions through registration, issuing practising certificates, carrying out
competence reviews and recertification processes, investigating complaints about
practitioners and considering concerns about their health.
The RAs’ functions also include:

recognition and accreditation of training and education programmes for entry to
professional programmes and for the ongoing competence of health practitioners

setting standards of clinical competence, cultural competence and ethical conduct

promoting education and training in the profession.
2012 Review of the Health Practitioners Competence Assurance Act 2003
1
International trends in the regulation of health professionals show that, overall, there
is a pattern of increasing intervention, with three main trends:

Strengthening consumer protection: This occurs through independent consumer
complaints agencies, independent prosecutions, reviews of disciplinary hearings and
the introduction of continuing competency requirements

Standardising legislation and the design of institutions: Standardisation of
legislation has been achieved in New Zealand and other jurisdictions, such as
Ontario and the Netherlands. Australia has implemented standardised legislation
and institutional arrangements through a single regulatory agency at a national
level. In the UK there has been a gradual process of standardisation due to the way
these institutions have evolved and expanded over more than 100 years.

Improving the performance of the RAs in relation to traditional functions: This
includes the management of registers and, more recently, the accreditation of
training, or inter-professional collaboration and teamwork. These latest
developments focus on the implications of regulators’ attempts to progress policies
rather than managing RAs’ processes.
New Zealand’s introduction of the Health and Disability Commissioner (HDC) to
uphold the rights of consumers is a key element in strengthening consumer protection.
Purpose of the review of the HPCA Act
This policy and operational review of the HPCA Act follows a review completed in 2009
by the Director-General of Health on the operation of HPCA Act. The Government has
directed the Ministry of Health to carry out a further strategic review of the HPCA Act
in 2012.
The purpose of the review is to examine the policy principles underpinning the HPCA
Act and their impact on the public, health care service providers and health
professionals to determine if these principles continue to support the requirements of a
rapidly changing health sector. The review will look at how the HPCA Act:

creates incentives for health practitioners to maintain safe clinical practice

works in an increasingly complex environment, where interdependent
multidisciplinary team work and clinical integration are critical components of care

supports health priorities and the objectives of ensuring a sustainable, integrated,
more convenient and patient-centred health system

can mirror international trends towards more public engagement, improved
transparency of complaints and complaint processes and transparency of
information, with increased emphasis on protecting the public interest.
2
2012 Review of the Health Practitioners Competence Assurance Act 2003
Principles to guide the review
Table 1 sets out the principles the Ministry of Health will use to guide the review. These
principles are based on the Government’s statement on regulation, Better Regulation,
Less Regulation, which sets out its commitment to introduce new regulation only when
satisfied that it is required, reasonable and robust. The full statement can be found at
www.treasury.govt.nz/economy/regulation/statement.
Table 1: Principles to guide the review
Focus
Principle
1
Future
A health occupational regulatory framework that supports workforce
flexibility, working in multidisciplinary teams and clinically
networked environments
2
Consumer
Operation of the HPCA Act in a way that is accessible and
transparent for consumers
3
Safety
A systems perspective that balances individual accountability with
team and organisational accountabilities for the management of
consumer safety
4
Cost effectiveness The level of regulation is matched to the level of risk of harm to the
public and ensures value for money is maintained
Process and timing
A staged approach will be taken for the Review. The stages and associated timelines are
summarised in Table 2.
Table 2: Summary of stages and timeline for the 2012 review of the Health
Practitioners Competence Assurance Act 2003
Public consultations
Timing
Public discussion on Discussion Document
31 August–26 October 2012
Public discussion on draft findings and recommendations
March – April 2013
Final report released
End of July 2013
2012 Review of the Health Practitioners Competence Assurance Act 2003
3
1
Future focus
Overview
To sustain our health service New Zealand needs to be able to attract and retain a
workforce that delivers services within a lower growth funding path in the context of an
ageing workforce and where significant numbers leave for overseas in any one year.
Our current services are configured around historical patterns of population demand
and traditional models of care that are labour intensive and expensive to sustain.
To meet these challenges we need to shift away from a focus on hospital services and
admissions to better, sooner, more convenient service delivery through the integration
of primary care with other parts of the health service. Integrated care means bettercoordinated health and social services and the development of care pathways designed
and supported by the community, primary and secondary clinicians. It will deliver
better-coordinated patient care across service providers and professions and enable us
to manage within tight fiscal constraints.
Delivering integrated care will require a more flexible workforce, where health
practitioners will increasingly be required to work in a range of new types of clinical
settings, in turn requiring access to a broader range of knowledge, skills and
technology. They will increasingly work within multidisciplinary teams and will be part
of clinically networked systems. A wider, deeper base of commonality across health
professions will be required.
Increasing integration of the health and disability system necessitates changes to
education and training to ensure ongoing competency. It also means taking a wider
focus that includes effective ways of working in teams, improved communication skills
and support for consumers’ self-management.
Although regulation is generally managed along professional boundaries, those
boundaries are increasingly shifting and becoming less distinct in increasingly complex
clinical environments. Consumer care and the protection of consumer safety are
increasingly dependent on how multidisciplinary teams and clinical networks operate.
How well scopes of practice operate in the sector is also important, and in particular,
how well they balance definition of practice with flexibility of clinical practice.
Part of ensuring we have a sustainable and fit-for-purpose workforce includes
recruiting and retaining the health and disability workforce. New Zealand will continue
to experience flows of health and disability workers into and out of New Zealand as
health practitioners seek overseas experience, training opportunities and a different
lifestyle. In the case of some professions, these factors are very relevant to the
recruitment of overseas-trained practitioners. It is therefore important that we can
attract and retain both New Zealand and overseas-trained health practitioners. Pastoral
care also has an important role to play in retaining our health and disability workforce.
4
2012 Review of the Health Practitioners Competence Assurance Act 2003
This section looks at how the HPCA Act can, via RAs, ensure that the requirements on
health practitioners keep pace with what the sector needs in an environment that is
undergoing change. We would like your views on how the HPCA Act can continue to
keep the public safe from harm and support integrated care that will achieve the best
outcomes for patients.
Workforce development and the purpose of HPCA
Act
RAs have an independent role in keeping the public safe through ensuring the
competence of health practitioners. The RAs also have an important influence on how
the workforce evolves over time. They influence the shape of the workforce through
how they set qualifications, scopes of practice, competence standards and ongoing
professional development requirements, as well as educational and training
accreditation standards.
If the direction in which the health sector is striving to develop the health and disability
workforce is not supported by RAs, there could be consequences for both the public
and the health and disability workforce. For the public this could mean they do not
gain the full benefit from changes to service delivery. For health practitioners
delivering publicly funded services it could result in more stress as they navigate two
sets of requirements.
Retaining health practitioners’ clinical judgement and individual accountability is
important. Feedback is sought on whether the Act, or how it is operationalised through
RAs, needs to include mechanisms that better recognise the complex environment that
health practitioners work in.
Health practitioners working in teams
The HPCA Act governs standard-setting for health practitioner training, the range of
work included under scopes of practice, activities that contribute to annual
maintenance of competency, and the overall determination of an individual’s
competency. Health practitioners are accustomed, through their training and ongoing
collegial relationships, to keep to these standards. This is also reinforced by the
potential to lose the right to practise if practitioners are disciplined under the HPCA
Act.
Tensions can occur when introducing new procedures or models of care that require
closer, more integrated ways of working across traditional health profession
boundaries. Health professionals may be expected to work outside their professional
context, to delegate work to members of other health professions, or to perform work
that is not central to the regular work of their own profession. Studies show that
individual health practitioners can struggle to reconcile working with blurred
boundaries and accountabilities that cross health professional lines with meeting the
regulatory prescriptions for their own professional practice.
2012 Review of the Health Practitioners Competence Assurance Act 2003
5
Improving inter-professional communication and collaboration, particularly in relation
to spoken and written communications and handover of care, is vital to improving the
quality and efficiency of health and disability services. The HPCA Act focuses on the
competence and accountability of individual clinicians in teamwork situations, but a
complementary focus across health professions is necessary to address these common
sources of error and inefficiency.
Scopes of practice
RAs must describe and publish scopes of practice and set out the requirements for
registration. To be registered, health practitioners must have the qualifications that
relate to a particular scope of practice. Practitioners can face disciplinary procedures if
they practise outside their scope of practice.
The Health Professionals Competency Assurance Bill Discussion Paper, published in
September 2000, states that:
the principal aim of scopes of practice is to provide a transparent
framework so that health professionals and consumers of health and
disability services can easily know the parameters a health professional is
competent to work within and can be assured of their competence.
Another aim of using scopes of practice is to support workforce flexibility so that health
professionals’ clinical practice enables and supports the introduction of new service
models and new technologies.
Information contained in scopes of practice
Some professions have chosen to publish prescriptive scopes of practice that provide
detailed information about what their practitioners may do. Other professions publish
broad and generalised scopes of practice. The HPCA Act (section 11 [2]) allows RAs to
describe scopes of practice in any way it thinks fit, including by reference to:

a name or form of work that is commonly understood by persons who work in the
health sector

an area of science or learning

tasks commonly performed

illnesses or conditions to be diagnosed, treated or managed.
This has resulted in a wide array of forms of scopes of practice, which can be difficult to
compare.
However, the benefit of having broad scopes of practice is that it increases the
flexibility that health professionals have in terms of how they describe what they do
and allows for easy amendment. Detailed scopes of practice risk becoming too rigid and
out of date.
6
2012 Review of the Health Practitioners Competence Assurance Act 2003
Increasing workforce flexibility
One of the original policy intentions of the HPCA Act was to encourage greater interprofessional collaboration and increased workforce flexibility. There were many ways
this was expected to occur, including publication and use of overlapping scopes of
practice. The mechanism for resolving disputes between RAs about whether any part of
a scope of practice should form part of an RA’s profession is provided for in section 127
of the HPCA Act.
The HPCA Act provides an enabling environment in which RAs can increase the
amount of commonality and standardisation across professional groups. The Act
allows them to identify more generic skill sets that can help build better
multidisciplinary teams, support expanded or diversified roles, and help simplify the
process of health practitioners moving across to other workforce roles. The health
sector requires this type of activity in order to develop a more sustainable and fit-forpurpose workforce.
Principles for developing or reviewing scopes of
practice
The 2007–09 review suggested that principles are needed to guide authorities when
they are developing or reviewing scopes of practice. These principles include:

defining scopes to protect public health and safety rather than responding to
professional preferences

defining broad scopes to enable as much workforce flexibility as is compatible with
protecting public safety

setting qualifications that are the minimum requirements for public safety

allowing for movement between scopes by, for example, recognising the relevance of
prior learning

consulting widely and openly without predetermined positions, and carefully
evaluating and responding to submissions

basing decisions on the best available evidence, including from other professions,
especially where scopes of practice overlap.
2012 Review of the Health Practitioners Competence Assurance Act 2003
7
Mobility of the health and disability workforce
New Zealand competes for its workforce within an international labour market. Our
health and disability workforce is highly sought after internationally and many choose
to work overseas. The flow of health practitioners between Australia and New Zealand
via the Trans-Tasman Mutual Recognition Arrangement underlines this reality. Under
this arrangement, health practitioners registered to practise an occupation in one
country are entitled to register to practise the equivalent occupation in the other
country without the need to undergo further testing or examination. The only
profession exempted from the Arrangement is medical practitioners who still need to
register with both countries. The free flow of health practitioners between countries
helps to create one Australasian market for health practitioners.
Since 1 July 2010 Australian states and territories have had consistent national
registration and accreditation standards for the 10 health professions included in the
national scheme. A further four health professions have been included in the scheme
from 1 July 2012. Appendix 2 sets out the main developments in Australia and the
areas of interest that may be relevant to New Zealand.
The way the RAs operationalise the HPCA Act has an impact on which overseas-trained
health practitioners can register and work in New Zealand. The time it takes RAs to
work through their processes and make a decision can have an impact on both the
applicant and the employer in terms of time lost and costs incurred (or earnings lost).
We need to ensure that the standards for entry and training decided by the RAs are set
at the level required to ensure public safety, and not at a higher level that provides
more economic benefits to the health professions than is warranted.
Improving the pastoral care of health practitioners
New Zealand needs to retain its highly skilled health and disability workforce.
Understanding and supporting health practitioners who work in fluid and complex
clinical environments is critical to ensuring they can sustain their practice and choose
to remain working in the New Zealand health sector. However, the HPCA Act does not
require a direct role for RAs in health professionals’ pastoral care.
Employers are already required under the Health and Safety in Employment Act 1992
and the State Sector Act 1988 to promote a good, safe and healthy work environment,
to act as good employers, and to provide for employee needs. RAs could provide better
care for health professionals to support their health, competence and welfare in order
to prevent the escalation of complaints and the resulting costs to the system and the
public. This is particularly the case where health practitioners are self-employed or
working in sole practice, but RAs could also work in partnership with employers and
colleges where relevant.
8
2012 Review of the Health Practitioners Competence Assurance Act 2003
Pastoral care could involve RAs ‘walking alongside’ health practitioners, supporting
them through times of stress by recognising and acting on signs of practitioner
distress, maintaining the dignity of practitioners during any complaint process, and
providing support. Pastoral care in this context should be intentional and undertaken
by skilled practitioners. In the RA context this does not mean counselling, although
that could be one avenue suggested to health practitioners.
At a broader level, providing timely care to health practitioners could increase the
sustainability of the workforce and keep health professionals in the sector for longer, as
well as contributing to ensuring the delivery of good-quality health care.
Future focus
The Act needs to balance its core function of protecting the safety of the public
with its ability to influence the shape of the workforce and meet the needs of a
changing sector.
Questions
1.
We want to achieve the best outcomes for patients through integrated care,
and so health professional regulation needs to keep pace with how
integration improves care and service models. How can the Act improve
this?
2.
How can the Act be used to promote a more flexible workforce to meet
emerging challenges faced by the health system?
3.
How can the Act promote education and training that has a wider focus,
such as effective ways of working in teams, improved communication skills
and support for consumers’ self-management?
4.
Is there scope for the Act to better address the standardisation of codes of
conduct, ethics and common learning across health professions?
5.
Do we have the right balance between broad scopes of practice and
providing sufficient information to inform people about what they can
expect from a health practitioner?
6.
Could RAs have a mandated role in health professionals’ pastoral care? If
so, how can they carry this out?
2012 Review of the Health Practitioners Competence Assurance Act 2003
9
2
Consumer focus
Overview
The HPCA Act serves to protect the public from harm. It also gives the public choice in
which professional they use for health services. This gives the public a role in keeping
themselves safe.
All occupational regulation requires choices to be made about the level of risk that
needs statutory regulation, the cost society is willing to bear for the benefits of public
safety, and the trade-off between highly qualified and regulated health practitioners
and improved access to services. The public expects to be involved in making these
choices. The transparency of information and processes is also important to
consumers, particularly when they are involved in making a complaint against a health
practitioner.
This section looks at a number of issues from the public’s perspective. Does the public
sufficiently understand how the HPCA Act works and the role of individuals in keeping
themselves safe from harm when accessing health and disability services? Is the
balance right between health practitioners’ say in how the HPCA Act operates in
practice and the public’s expectation to be involved in decision-making? Can the public
access the information they need in a timely manner, and does the public think the
processes around the HPCA Act are transparent enough? In addition, is the public
confident that HPCA Act ensures there is a focus on public protection rather than
professional interests?
Public understanding of HPCA Act
Under the current regulatory framework, anyone can provide any health and disability
services (other than restricted services) as long as they do not hold themselves out to
be a registered health practitioner. There is an expectation that consumers will know
that not all health workers are regulated or ‘vetted’ through regulatory bodies before
they are allowed to offer services to the public. Consumers need to check whether the
health practitioner they wish to use is registered, and if so whether there are any
limitations attached to their practice. This is particularly important when using sole
practitioners who will not have been vetted by an employer.
This was identified as an issue in the 2007–09 review of the HPCA Act. The report on
the review recommended that RAs and the Ministry of Health do more to inform the
public about the HPCA Act through their websites, publications and other means,
including making business information about registered practitioners freely available.
The Ministry is interested in whether people consider this situation has improved.
10
2012 Review of the Health Practitioners Competence Assurance Act 2003
Public involvement in decision-making
Any form of occupational regulation sets up a barrier to who can work in the regulated
profession. These barriers limit the number of people available to carry out the work
and limit the type of work the profession can do. Regulatory arrangements usually give
a significant amount of discretion to health professions to determine the right level of
qualification, the type of work they can undertake and the competency standards. How
can the public be sure these standards and restrictions are set at the right level to keep
the public safe and are not set at a higher level to meet the interests of the profession
rather than to ensure public safety?
Maintaining the regulatory environment involves costs. These include the costs to the
health practitioner, employers, tax payers and consumers. The more stringent the
regulation, the greater the cost to all involved and the likelihood that less funding is
available for services. The public has a right to be involved in considering the balance
between unacceptable risk and unacceptable cost, and in determining what level of
regulation is required.
New Zealand already has laypeople involved in RA decision-making at the RA board
level, and in the Health Practitioners’ Disciplinary Tribunal, professional conduct
committees and competence review committees. Laypeople bring specific skills such as
legal or governance experience that may not be available within the professions, and
they also bring an external and independent point of view.
Australia has community representatives on its boards rather than laypeople, who are
usually appointed to represent the views of their communities. The UK has looked at
increasing the number of laypeople at the governance level because it sees this as a way
of getting more accountability for the public. The UK has also introduced consumer
forums where the public can communicate with RAs on matters that concern them.
Transparency of information and processes
Complaints processes should be accessible and transparent. It is also important that
these processes be as streamlined and efficient as possible to ensure quick and costeffective resolution for all parties involved.
At present consumers cannot review RA decisions or find out information using the
Official Information Act 1992. The RAs decide what information to release to the public
consistent with their existing legal obligations, and with 16 RAs this can lead to
inconsistency in what information is released.
When a person makes a complaint against anyone who provides health and disability
services (regulated or un-regulated) it is dealt with by the Health and Disability
Commissioner (HDC). If the health worker is a regulated health practitioner, then the
HDC may decide to refer the complaint to the relevant RA to investigate. The HPCA Act
sets out the relationship between the HDC and the RAs in Part 4.
2012 Review of the Health Practitioners Competence Assurance Act 2003
11
The Ministry is interested in hearing people’s views on how well the complaints and
disciplinary processes are working and whether there is a need for the HPCA Act to
provide better mechanisms for ongoing improvement.
Consumer focus
The Act needs to balance health professional expertise in managing risk of harm
to the public with the public’s rights to be well informed and involved in how the
Act operates.
Questions
12
7.
Does the Act keep the public safe, involve consumers appropriately in
decision-making and assist in keeping the public informed?
8.
Is information from RAs readily available, particularly as it relates to
practitioners and the transparency of complaints and complaint processes?
If so, is this information made good use of by the public?
9.
Do we have the right balance of laypeople to health professionals on RA
boards?
10.
Should New Zealand consider introducing consumer forums, where the
public can communicate with RAs on matters that concern them, as in the
UK?
2012 Review of the Health Practitioners Competence Assurance Act 2003
3
Safety focus
Overview
The core function of the HPCA Act is to provide a mechanism to regulate occupational
groups in terms of safety. However, there are other legislative mechanisms that are
concerned with risk management, and so it is necessary to consider how the HPCA Act
contributes to the overall system of government regulation. Also, the role of
professional regulation in safeguarding the public is supported and complemented by
the responsibilities of employing organisations. It is therefore necessary to consider
whether there is an appropriate balance between the safety concerns of employers and
the requirements of government regulation.
This section looks at whether the balance between legislation and other risk
management systems is appropriate to manage the risk of harm to the public.
How the HPCA Act works within the health system
The HPCA Act is one of several pieces of legislation that have a role in protecting the
public from harm when they use health and disability services in New Zealand. Some of
the pieces of legislation focus on the health practitioner; others focus on the employer
or the working environment. Across this legislation there may be gaps or overlaps that
could be streamlined to improve the overall quality and safety of services. Following
are some of the key Acts relevant to this review.
The Health and Disability Commissioner Act 1994 promotes and protects the rights of
consumers under the Code of Health and Disability Support Services Consumers’
Rights (the Code) and helps resolve complaints and infringement of those rights. It has
important links with the HPCA Act as set out in Table A2 in Appendix 3. The RAs and
the HDC require a good ongoing relationship and processes to work together to ensure
the legislative requirements of both Acts are met and ensure that the process is fair for
both the complainant and the health practitioner.
The Accident Compensation Act 2001 has a large influence on clinical practice in New
Zealand due to the no-fault injury cover scheme. The benefit of New Zealand’s
approach is a more open environment to talking about and managing risk of harm or
serious harm to consumers. A less defensive approach to clinical practice is therefore
possible, which reduces the cost of providing services. This approach avoids the need
for professions to protect themselves at the expense of public accountability.
2012 Review of the Health Practitioners Competence Assurance Act 2003
13
The Medicines Act 1981 and the Misuse of Drugs Act 1975 allow only certain health
practitioners to prescribe drugs. An amendment Bill to the Medicines Act is in
progress. Part of its aim is to streamline the prescribing framework and make it more
responsive to innovative practice. This will improve access to services for patients as
more health practitioners are given prescribing rights. Note that all health practitioners
will be required to prescribe within their scope of practice for consumers under their
care.
There are several Acts applying to DHBs that have interfaces with the HPCA Act. These
Acts include employment and safety considerations, as well as training of the health
and disability workforce. There are also other Acts such as the Health and Disability
Services (Safety) Act 2001 and the Health Safety and Employment Act 1992 that
legislate for the safety of consumers and employees in the wider health system. The
Ministry is interested in your views on where there are significant gaps or overlaps
between the employer- or organisation-based safety legislation and the health
practitioner-based legislation. This discussion has implications for considering
whether a wider menu of regulatory options would help streamline regulation (see
page 26 for more detail).
The Commerce Act 1986 promotes competition in markets and has a role in ensuring
the level of regulation does not unnecessarily restrict people’s ability to work in health
professions. Standards that are set higher than necessary to protect the public may be
anti-competitive.
More information on these Acts is set out in Appendix 3.
Discussion
These wider risk management systems have continued to develop since the HPCA Act
became operational, so it would be useful to assess how they contribute to managing
the risk of harm to the public for both the regulated and the unregulated health and
disability workforces.
The role of the employer in managing risks related to individual health practitioners’
clinical practice also needs consideration. Good systems for employing health
practitioners are an important tool in ensuring the clinical competence of prospective
employees. Maintenance of clinical competence and quality assurance are important
features of clinical governance.
Not all health practitioners work in organisations, and those in sole practice will be
responsible for managing all risks related to their clinical practice. There may be
findings from this review that are particularly relevant for these health practitioners.
14
2012 Review of the Health Practitioners Competence Assurance Act 2003
Safety focus
The Health Practitioners Competence Assurance Act 2003 is one (important)
mechanism used to protect the public from harm.
Questions
11.
Do we currently make the best use of legislation to keep the public safe
from harm when accessing health and disability services?
12.
Can we make better use of other legislation or employer-based risk
management systems and reduce reliance on statutory regulation?
13.
What more needs to be done to address gaps or overlaps in legislation that
could improve the overall quality and safety of services?
14.
Is the Act clear about the level of risk that needs to be regulated by statute?
If not, what would help to improve the match between level of risk and level
of regulation?
15.
Do you have any suggestions for how those in sole practice can better
manage risks related to their clinical practice?
16.
In the case of groups of practitioners that might be considered high risk,
would it be useful for a risk-profiling approach to be applied by RAs?
2012 Review of the Health Practitioners Competence Assurance Act 2003
15
4 Cost effectiveness focus
Overview
The Government considers that smarter regulation is essential to help New Zealand to
become more internationally competitive and a more attractive place in which to live
and do business. The Government has committed to introduce new regulation only
when satisfied that it is required, reasonable and robust. It is also reviewing existing
regulation in order to identify and remove requirements that are unnecessary,
ineffective or excessively costly.
The Government’s policy framework for occupational regulation has the following
three key assumptions:

Intervention by government in occupations should generally be used only when
there is a problem or potential problem that is either unlikely to be solved in any
other way or is such that it is inefficient or ineffective to solve in any other way.

The amount of intervention should be the minimum required to solve the problem.

The benefits of intervention must exceed the costs.
This section looks at whether our current health occupational regulatory settings
reflect best practice in terms of providing cost-effective regulation. This includes
whether the right set of regulatory options is being applied to manage the risk of harm
to the public that different health professions may pose. This issue also closely relates
to deciding which health professions need to be regulated.
A cost effectiveness focus also looks at whether the structural arrangements we have
under the HPCA Act deliver the best value for money and support workforce planning.
Risk framework underpinning the HPCA Act
Government regulation imposes significant costs on health practitioners, employers
and the public. Under the current regulatory framework a health profession is either
regulated under the HPCA Act and is subject to its requirements, or is unregulated and
reliant on other legislation, such as the HDC Act, or employer and professional bodies
for the management of clinical practice.
There is no definition of harm or serious harm in the HPCA Act and with no
definitions, the RAs must use their own working definitions when applying the HPCA
Act.
Set out below is an example from the New Zealand Medical Council of a working
definition of risk of harm or serious harm.
16
2012 Review of the Health Practitioners Competence Assurance Act 2003
Example of a working definition of risk of harm
Risk of harm may be indicated by:

a pattern or practice over a period of time that suggests the doctor’s practice of
medicine may not meet the required standard of competence; or

a single incident that demonstrates a significant departure from accepted
standards of medical practice; or

recognised poor performance where local interventions have failed – this does
not exclude notification of serious concerns where internal review or audit is
inaccessible or unavailable to the person with the concern; or criminal
offending; or

professional isolation with declining standards that become apparent.
Risk of serious harm may be indicated when:

an individual consumer may be seriously harmed by the doctor; or

the doctor may pose a continued threat to more than one consumer and as
such the harm is collectively considered ‘serious’; or

there is sufficient evidence to suggest that the alleged criminal offending is of
such a nature that the doctor poses a risk of serious harm to one or more of
the public.
Medical Council of New Zealand – Definitions of risk of harm and risk of serious harm (August
2004) http://www.mcnz.org.nz/assets/Policies/Definitions-of-risk-of-harm-and-risk-of-seriousharm.pdf
Establishing a threshold of risk is difficult, particularly given the spectrum of risk that
exists within and across scopes of practice. There are also no tools for considering how
to trade off risk of harm that is either unlikely to occur or is of short and nonpermanent nature, with the benefit of better access to services.
The HPCA Act allows for specified activities to be restricted to registered health
practitioners, in order to protect members of the public from the risk of serious or
permanent harm. Five restricted activities have been identified under the HPCA Act
provisions. These are:
a.
surgical or operative procedures below the gingival margin or the surface of the
skin, mucous membranes or teeth
b.
clinical procedures involved in the insertion and maintenance of fixed and
removable orthodontic or oral and maxillofacial prosthetic appliances
c.
prescribing of enteral or parenteral nutrition where the feed is administered
through a tube into the gut or central venous catheter
d.
prescribing of an ophthalmic appliance, optical appliance or ophthalmic medical
device intended for remedial or cosmetic purposes or for the correction of a
defect of sight
e.
applying high-velocity, low-amplitude manipulative techniques to cervical spinal
joints.
2012 Review of the Health Practitioners Competence Assurance Act 2003
17
Apart from restricted activities, health practitioners are limited by their scopes of
practice and their self-assessment of their level of competence.
The Ministry of Health needs to work with the sector to further develop the risk
framework underpinning the HPCA Act in order to assess:

whether different levels of regulation need to be available to better reflect the risk
associated with professional practice

whether other forms of regulation could be sufficient to protect consumers from
harm for some health professions

whether work-based supervision or oversight by more experienced professionals is
sufficient for some professions

how best to support and formally recognise self-regulation as an alternative to
statutory regulation, where the risk to consumers does not warrant other forms of
regulation

whether lessons can be learnt from regulatory practices in overseas jurisdictions and
also from self-regulating professions in New Zealand.
The risk framework would build on the criteria developed in 2010 for determining
whether statutory regulation is the most appropriate way to regulate health
professions. Refer to www.health.govt.nz/our-work/regulation-health-and-disabilitysystem/health-practitioners-competence-assurance-act/registering-new-profession for
details on the criteria used to assess which professions require regulation.
Regulatory options to manage consumer risk
At present New Zealand health occupations are either strongly regulated by the HPCA
Act or lightly regulated through non-statutory means. There is no recognition of a
continuum of risk to the public across the various health professions. Some professions
present a high level of risk to the public, others have some aspects of significant risk to
the public in their work, and some are only occasionally exposed to a situation with the
potential for harm to the consumer.
Given this continuum, risks could be better managed if there was a larger menu of
regulatory options available. This said, there are many health professionals who are not
regulated but where the risks associated with practice overlap those of the regulated
workforces. We invite you to consider how these risks might best be managed.
Appendix 4 gives a summary of the main regulatory choices.
18
2012 Review of the Health Practitioners Competence Assurance Act 2003
Could we improve the cost effectiveness of the
HPCA Act?
An important consideration in this review is to examine how the cost of regulation
under the HPCA Act can be kept to the minimum required to fulfil the regulatory
functions. The type of statutory regulation currently in the HPCA Act is considered an
expensive way to ensure the public are safe from harm when accessing services. It has
direct costs associated with registration, annual practising certificates, complaints
investigations and disciplinary processes. There are also the indirect costs associated
with the restrictions imposed through the RAs, which have an impact on the supply of
health professionals.
Current system
The RAs currently administer:

22 different professional codes of ethics and codes of conduct

40 competence programmes and 41 re-certification programmes.
At present the only consultation requirement1 on RAs is to consult on new, or changes
to, scopes of practice as well as changes to fees. This is despite employers, health
professionals and consumers bearing the direct and indirect costs of RA decisions.
Balancing the cost of public protection with access
to services
Occupational regulation seeks to protect the public from risk of harm by setting
standards of entry into the workforce and ongoing competency requirements.
Regulation of this type imposes costs on the health practitioners, consumers and the
sector, and may reduce the number of people available to work in the regulated
occupation.
It can also influence remuneration levels due to a smaller workforce being available. All
of these types of costs either increase the cost of services to the public or reduce the
funding available for services. This is the trade-off required to ensure the public are
kept safe from risk of harm or serious harm when dealing with regulated occupations.
1
There are some memoranda of understanding between employers and RAs, but these are
agreed on an ad hoc basis across the sector.
2012 Review of the Health Practitioners Competence Assurance Act 2003
19
The HPCA Act enables RAs to determine the appropriate level of qualifications
required for their health profession. Under the HPCA Act (Section 13), RAs are
required to be guided by the following principles when prescribing qualifications:
a)
the qualifications must be necessary to protect members of the public; and
b)
the qualifications may not unnecessarily restrict the registration of persons as
health practitioners; and
c)
the qualifications may not impose undue costs on health practitioners or on the
public.
This is the only section in the HPCA Act where the RAs are required to take heed of the
need to balance the costs and benefits of regulation. There are other areas where RAs
set requirements on health practitioners, such as competencies and continuing
professional development, which are not explicitly mentioned in the HPCA Act.
Feedback is sought on whether the requirements to balance the costs and benefits of
regulation need to be strengthened in the HPCA Act.
For example, DHBs bear the costs of continuing education requirements (through
employment agreements) as well as any process and delay costs associated with
supervisory requirements relating to individual health practitioners.
The last review in 2007–09 recommended that the Ministry develop, in consultation
with RAs and other interested stakeholders, a set of indicators to measure the
effectiveness of the HPCA Act and to measure the performance of RAs. This is still in
the preliminary stages, but both the Medical and Nursing Councils have been
independently reviewed by the Council for Healthcare Regulatory Excellence (CHRE)
in the UK.
Importance of data collection systems to inform
sector intelligence and planning
A single, secure, nationally accessible database is required for future workforce
planning. New Zealand is a small country that competes for health practitioners within
an international labour market. In order to effectively plan to meet the demand for
health professionals, we need to monitor the flows into and out of New Zealand (who
stays, who comes back), the age profile of the difference workforces, where the country
faces ongoing workforce shortages, and the mix of generalists and specialists the
country needs.
At the national level the Ministry has access to some RA data, but access can be
constrained by how the Privacy Act is applied. The process of registering a health
practitioner that is undertaken by RAs plays a pivotal part in generating robust data
about the regulated workforce. This process, and the associated approval of
applications for annual practising certificates by RAs, provides the single point of data
capture.
20
2012 Review of the Health Practitioners Competence Assurance Act 2003
This review provides an opportunity to explore more formal mechanisms to support
the Ministry’s need to access data that will help to understand current and future
workforce requirements and identify where shifts in workforce volumes are required,
including number of workers, range of professions and types of skill sets demanded by
the sector.
Increasing standardisation across professional
groups
The advantage of having 16 RAs is that they are responsive to individual professions.
However, because each RA differs in the way it carries out its responsibilities, there is
variability and fragmentation of professional standards and information.
Implementing different sets of requirements can also increase costs for employers.
Some overseas jurisdictions have taken action to improve cost effectiveness. In both
Australia and the UK, RA secretariats are clustered to gain efficiencies and/or improve
workforce regulation. Australia has one national administrative secretariat and
10 profession-specific boards. The UK has reduced the number of regulatory boards to
nine, one of which (the Health Professions Council) regulates 15 groups of health
professions.
The advantage of these consolidation initiatives is the standardisation of processes
across groups of health professionals. For instance, the Australian Health Practitioner
Regulation Agency (AHPRA):

manages the registration process for all health professionals and students

publishes registers of health professionals

develops common requirements for student and specialist registration, collation of
data and mandatory reporting.
Work is under way in New Zealand to establish a shared, consolidated secretariat that
supports the regulatory functions of all RAs. Consideration could also be given to
reducing the number of RAs to take advantage of standardisation and streamlined
processes.
Size of RA boards
Since the 2007–09 review of the HPCA Act there has been new advice in the UK
around board size. In September 2011 the CHRE issued advice to the UK Department
of Health regarding health professional regulators’ board size and effectiveness (see
www.chre.org.uk/_img/pics/library/pdf_1320922005.pdf). The CHRE concluded that
boards in the range of 8 to 12 members are associated with greater effectiveness.
The size of New Zealand’s regulatory authorities is prescribed by HPCA Act
(section 120), which requires at least five board members and no more than 14. The
membership of the board must include a majority of members who are health
practitioners, and either two or three laypeople, depending on the size of the board.
2012 Review of the Health Practitioners Competence Assurance Act 2003
21
The Medical Council and the Nursing Council include four and three ‘elected’ positions,
respectively. These members are chosen by the profession through popular election
every three years, and by convention are subsequently appointed by the Minister.
Within those bounds, the number of appointments is at the discretion of the Minister
of Health.
In this review we are seeking your views on whether New Zealand should revisit the
size of RA boards.
Improving employers’ ability to manage cost
impacts
Many of the costs of regulation fall directly on employers, who have little input into the
decisions made by RAs that might have cost impacts on them. These costs include
annual practising certificate fees and continuing education requirements (through
employment agreements), as well as process and delay costs associated with
supervisory requirements for individual health practitioners. They also bear costs
where there is rigidity in RA requirements related to organisations employing health
professionals and how they might do so. An example is the RA standard setting for
overseas-qualified health practitioners wanting to work in New Zealand.
Traditionally RAs, as independent regulatory bodies, have not been required to
consider the wider costs of their actions, because this was seen as interfering with their
focus on protecting the public. Under current arrangements, the RAs are required to
consult with relevant stakeholders about new, or changes to, scopes of practice as well
as changes to fees.
This issue also directly relates to who makes decisions and how they are made
concerning the trade-off between public protection and increased access to services.
Mechanisms need to be explored that would prompt RAs to further consider the wider
cost impacts of imposed requirements, and to provide frameworks and other tools to
balance the costs and benefits of regulation.
Other issues
The Ministry recognises that there may be other issues for this strategic policy review
of the HPCA Act that have not been raised in this discussion document. The Ministry
welcomes comments on these.
22
2012 Review of the Health Practitioners Competence Assurance Act 2003
Cost effectiveness focus
The costs and benefits of the regulation of health practitioners need to be kept in
balance, and ways explored to reduce costs.
Questions
17.
What role do RAs play in considering the cost impacts of their decisions
and the cost benefits of regulation?
18.
Should the Act define harm or serious harm?
19.
Is the HPCA Act clear about the level of risk that needs to be regulated by
statute? If not, what would help to improve the match between level of risk
and level of regulation?
20.
Is the right set of regulatory options being applied to manage the risk of
harm to the public that different health professions might pose?
21.
Could the way RAs administer their functions be improved?
22.
Should RAs be required to consult more broadly with relevant
stakeholders?
23.
Should the number of regulatory boards be reduced, as in the UK?
24.
What is the ideal size of RA boards?
25.
Are there other issues you would like to raise?
2012 Review of the Health Practitioners Competence Assurance Act 2003
23
Summary of questions in the
Health Practitioners
Competence Assurance Act
2003 Review public discussion
document
Future focus
1.
We want to achieve the best outcomes for patients through integrated care, and
so health professional regulation needs to keep pace with how integration
improves care and service models. How can the HPCA Act improve this?
2.
How can the HPCA Act be used to promote a more flexible workforce to meet
emerging challenges faced by the health system?
3.
How can the HPCA Act promote education and training that has a wider focus,
such as effective ways of working in teams, improved communication skills and
support for consumers’ self-management?
4.
Is there scope for the HPCA Act to better address the standardisation of codes of
conduct, ethics and common learning across health professions?
5.
Do we have the right balance between broad scopes of practice and sufficient
providing information to inform people about what they can expect from a health
practitioner?
6.
Could/should RAs have a mandated role in health professionals’ pastoral care? If
so, how can they carry this out?
Consumer focus
7.
Does the HPCA Act keep the public safe, involve consumers appropriately in
decision-making and assist in keeping the public informed?
8.
Is information from RAs readily available, particularly as it relates to
practitioners and the transparency of complaints and complaint processes? If so,
is this information made good use of by the public?
9.
Do we have the right balance of laypeople to health professionals on RA boards?
10.
Should New Zealand consider introducing consumer forums, where the public
can communicate with RAs on matters that concern them, as in the UK?
24
2012 Review of the Health Practitioners Competence Assurance Act 2003
Safety focus
11.
Do we currently make the best use of legislation to keep the public safe from
harm when accessing health and disability services?
12.
Can we make better use of other legislation or employer-based risk management
systems and reduce reliance on statutory regulation?
13.
What more needs to be done to address gaps or overlaps in legislation that could
improve the overall quality and safety of services?
14.
Is the HPCA Act clear about the level of risk that needs to be regulated by statute?
If not, what would help to improve the match between level of risk and level of
regulation?
15.
Do you have any suggestions how those in sole practice can better manage risks
related to their clinical practice?
16.
In the case of groups of practitioners that might be considered high risk, would it
be useful for a risk-profiling approach to be applied by RAs?
Cost effectiveness focus
17.
What role do RAs play in considering the cost impacts of their decisions and the
cost benefits of regulation?
18.
Should the HPCA Act define harm or serious harm?
19.
Is HPCA Act clear about the level of risk that needs to be regulated by statute? If
not, what would help to improve the match between level of risk and level of
regulation?
20.
Is the right set of regulatory options being applied to manage the risk of harm to
the public that different health professions might pose?
21.
Could the way RAs administer their functions be improved?
22.
Should RAs be required to consult more broadly with relevant stakeholders?
23.
Should the number of regulatory boards be reduced, as in the UK?
24.
What is the ideal size of RA boards?
25.
Are there other issues you would like to raise?
2012 Review of the Health Practitioners Competence Assurance Act 2003
25
Abbreviations
ACC
Accident Compensation Corporation
AHPRA
Australian Health Practitioner Regulation Agency
CHRE
Council for Healthcare Regulatory Excellence (UK)
DHB
district health board
ERA
Employment Relations Act 2000
HPCA Act
Health Practitioners Competence Assurance Act 2003
HDC
Health and Disability Commissioner
HDC Act
Health and Disability Commissioner Act 1994
NZPHD Act
New Zealand Public Health and Disability Act 2000
OIA
The Official Information Act 1982
RA
responsible authority
26
2012 Review of the Health Practitioners Competence Assurance Act 2003
Appendix 1: Summary of
responsible authorities and the
professions they regulate
Table A1: Professions regulated under the Health Practitioners Competence
Assurance Act 2003
Profession
Responsible authority
Chiropractic
Chiropractic Board of New Zealand
www.chiropracticboard.org.nz
Dentistry, dental hygiene, clinical Dental Council of New Zealand
dental technology, dental
www.dcnz.org.nz
technology and dental therapy
Dietetics
Dietitians Board in New Zealand
www.dietitiansboard.org.nz
Medical laboratory science,
anaesthetic technology
Medical Sciences Council of New Zealand
www.mlsboard.org.nz
Medical radiation technology
New Zealand Medical Radiation Technologists Board
www.mrtboard.org.nz
Medicine
Medical Council of New Zealand
www.mcnz.org.nz
Midwifery
Midwifery Council of New Zealand
www.midwiferycouncil.org.nz
Nursing
Nursing Council of New Zealand
www.nursingcouncil.org.nz
Occupational therapy
Occupational Therapy Board of New Zealand
www.otboard.org.nz
Optometry and optical dispensing New Zealand Optometrists and Dispensing Opticians Board
www.opticiansboard.org.nz
Osteopathy
Osteopathic Council of New Zealand
www.osteopathiccouncil.org.nz
Pharmacy
Pharmacy Council of New Zealand
www.pharmacycouncil.org.nz
Physiotherapy
The Physiotherapy Board of New Zealand
www.physioboard.org.nz
2012 Review of the Health Practitioners Competence Assurance Act 2003
27
Profession
Responsible authority
Podiatry
Podiatrists Board of New Zealand
www.podiatristsboard.org.nz
Psychology
New Zealand Psychologists Board
www.psychologistsboard.org.nz
Psychotherapy
Psychotherapists Board of Aotearoa New Zealand
www.pbanz.org.nz
28
2012 Review of the Health Practitioners Competence Assurance Act 2003
Appendix 2: International
environmental scan
There continues to be international interest in improving the health occupational
regulatory frameworks. In this appendix we have focused on three other jurisdictions:
Australia, the United Kingdom (UK) and Canada. Overall, there is a pattern of
increasing intervention to improve the alignment of the health professional regulatory
organisations with the government objectives for the health sector. Figure A1 sets out
the main areas of interest internationally.
Figure A1: Comparison of initiatives across a sample of international jurisdictions
Legend
Employer codes
Actioned
Some action
Reverse registers/blacklists
Considering
New Zealand
opportunities for action
Accredited voluntary registers
Review risk and need for
statutory regulation
Performance agreements, review
and audit
Single legislative environment
Agenda for standardisation
Formal stakeholder engagement
New workforce roles
Inter-profession teamwork
Ministerial authority to restructure
regulatory authorities
New Zealand
other sectors
New Zealand
Australia
UK
Ontario
Three jurisdictions similar to New Zealand were scanned to identify changes occurring
in those jurisdictions and to assess whether anything could be learnt that could be
considered as part of the review.
2012 Review of the Health Practitioners Competence Assurance Act 2003
29
Australia
Developments in regulation in Australia
Until 2010 Australia’s health professional registration was organised at the state level.
Each state was responsible for regulating the various health professions. Some states
had separate regulators for each profession, and in some states and territories (eg,
ACT) several regulators worked from the same office and were overseen by the Health
Department but had separate governance boards.
In December 2007 a National Health Workforce Taskforce was set up to implement the
reform of health professional regulation. The focus for the changes related to better
workforce regulation rather than reducing risk, reducing costs or increasing the
competence of the workforce. It was to address concerns raised by the Productivity
Commission that ‘workforce shortages, and inflexibilities and inefficiencies in
workplace arrangements were contributors to poor health outcomes’.
Under the previous regulatory system, a health professional had to have a practising
certificate in each state or territory in which they worked. The state regulators had been
working for some time to find a mutually acceptable way of sorting out this issue, but
instead of opting for mutual recognition agreements across state boundaries, as has
happened in Canada, a system of national regulation was set up. The Commission
focused its report on how to create ‘more efficient and effective regulatory and funding
arrangements within which specific workforce initiatives can be developed and
implemented by properly constituted governing bodies, supported by experts in
relevant areas’.
This reform was not promoted as a cost-saving measure. The establishment costs for
national professional regulation were jointly funded by the Commonwealth, states and
territories, and were initially estimated at $12.3 million over four years. This amount
has subsequently been increased. The schemes were expected to be eventually selffunding.
The Commonwealth did not have the power to regulate health professionals, so the
legislative framework for implementing the National Registration and Accreditation
Scheme was enacted by the state and territory legislatures. The initial legislation was
passed by the Queensland Parliament in November 2008. This legislation set up
interim administrative arrangements for the scheme. There was some delay in
implementation due to the time taken to change the legislation in some states.
Bodies involved in regulation in Australia
The Australian Health Practitioner Regulation Agency (AHPRA) has one national
administrative secretariat and 10 profession-specific boards. AHPRA supports 10
national health practitioner boards to implement the National Registration and
Accreditation Scheme.
30
2012 Review of the Health Practitioners Competence Assurance Act 2003
AHPRA:

supports the national boards in their primary role of protecting the public

manages the registration processes for health practitioners and students around
Australia

has offices in each state and territory where the public can make notifications about
a registered health practitioner or student

on behalf of the boards, manages investigations into the professional conduct,
performance or health of registered health practitioners (except in NSW, where this
is undertaken by the Health Professional Councils Authority and the Health Care
Complaints Commission)

on behalf of the national boards, publishes national registers of practitioners so that
important information about the registration of individual health practitioners is
available to the public

works with the Health Complaints Commissions in each state and territory to make
sure the appropriate organisation investigates community concerns about
individual, registered health practitioners

supports the boards in the development of registration standards, codes and
guidelines

provides advice to the Ministerial Council about the administration of the National
Registration and Accreditation Scheme.
State and territory offices administer: local applications for registration and renewal,
monitoring conditions on registration, professional and competency standards,
processing of complaints, and support for disciplinary hearings and committees. Not
all professions have the same organisation. The Medical Board still has a strong
presence in some states, whereas some regulatory bodies such as the Pharmacy Board
have a largely national structure.
AHPRA does have the following common requirements across all the boards:

student registration

national consistency within a profession for continuing professional development

a more consistent approach to specialist registration than happened before in the
states

a collation of national data

a form of mandatory reporting.
AHPRA notes that the registration process now includes additional requirements that
‘stem from the core principle of public safety’. These new requirements are the:

English-language skills registration standard

criminal history registration standard

recency of practice registration standard

continuing professional development registration standard
2012 Review of the Health Practitioners Competence Assurance Act 2003
31

automatic expiry of registration

new common renewal date.
The national boards have 9 to 12 members. At least half, and not more than two-thirds,
of the members are health professionals and there are at least two community
members. Many national boards have practitioners from each state on the board. The
chairs of the national boards were appointed by the ministerial group and worked
together during the development stages. They are ‘on board’ with the direction and
philosophy of APRHA and have been able to work together effectively on cross-board
issues and to share expertise across the sector. The boards do have different codes and
standards and in some areas lack cross-profession consistency.
National accreditation bodies like the Australian Medical Council and New Zealand and
Australian Pharmacy Schools Accreditation Committee already operated across the
states, and this has continued. Now there are 10 national accreditation authorities,
which recommend accreditation standards to national boards for approval.
Accreditation authorities also assess programmes of study and education providers to
determine whether accreditation standards are being met.
The role of the Agency Management Committee is to oversee the affairs of AHPRA, to
decide its policies, and to ensure AHPRA functions properly, effectively and efficiently
working with the national health practitioner boards. The Agency Management
Committee was appointed by the Ministerial Council in March 2009 in accordance with
the Health Practitioner Regulation (Administrative Arrangements) National Law Act
2008. The Committee consists of at least five people and meets up to 11 times per year.
New groups to be regulated
On 1 July 2012 the following four new national boards were established:

Aboriginal and Torres Strait Islander Health Practice Board of Australia

Chinese Medicine Board of Australia

Medical Radiation Practice Board of Australia

Occupational Therapy Board of Australia.
Some of these groups are still regulated in some states. There has also been some
recent discussion about the regulation of paramedics.
United Kingdom
In the UK, health professional regulation has recently been influenced by the principle
of ‘right touch regulation’, which was promoted by the Council for Health Care
Regulators Excellence. Over the years there has been a change in health regulation,
with a move from self-regulation by the groups themselves to risk-based regulation,
where the government regulates according to the risk proposed by the health
profession. Right touch regulation draws on both of these approaches.
32
2012 Review of the Health Practitioners Competence Assurance Act 2003
Right touch regulation:

is based on a proper evaluation of risk

is proportionate and outcome focused

creates a framework in which professionalism can flourish and organisations can be
excellent.
Health care across the UK is regulated by a range of different organisations working in
a number of different ways. Some regulators check the quality and safety of services
(eg, the Care Quality Commission in England and the Regulation and Quality
Improvement Agency in Northern Ireland). Others work on the quality and safety of
medicines and medical devices (eg, the Medicines and Healthcare products Regulatory
Agency).
Developments in health professional regulation
Many of the changes in health professional regulation in the UK in the last decade are
the result of some high-profile cases linked to the failure of regulation, such as the Dr
Shipman case.2 The current changes in health professional regulation were driven by
the White Paper Trust, Assurance and Safety: The regulation of health professionals,
published in February 2007.3 This set out a programme of reform to the UK’s system
for the regulation of health professionals.
In addition, there has been increased research and information on ways to reduce
regulatory burdens and promote a risk assessment approach to regulation because the
‘failure to use risk assessment comprehensively and consistently means that resources
are not always targeted at the riskiest areas’.
In February 2011 a paper on Enabling Excellence: Autonomy and accountability for
health care workers, social care workers4 was presented to Parliament aimed at
reforming and simplifying regulation for health care workers. This plans to:

reduce the cost of health professional regulation (as part of a Coalition Government
trend to reduce and simplify regulation generally)

devolve power to regulators while enhancing accountability to Parliament and
sustaining effective national safeguards, where necessary

limit the growth and costs of the regulatory system at a time when health and social
work professionals are facing pay constraints

introduce a system of assured voluntary registration as a more proportionate
approach to assuring standards in the workforce.
2
The case of Harold Shipman, the trusted GP from Hyde in Greater Manchester UK who
murdered around 250 of his patients over a 20-year period.
3
www.dh.gov.uk/en/Publicationsandstatistics/Publications/
PublicationsPolicyAndGuidance/DH_065946
4
www.dh.gov.uk/en/Publicationsandstatistics/Publications/
PublicationsPolicyAndGuidance/DH_124359
2012 Review of the Health Practitioners Competence Assurance Act 2003
33
Finally, the Law Commission was asked to review the Regulation of Healthcare
Professionals because the ‘regulatory framework governing the health and social care
professions has become too complex and expensive and requires continual
Government intervention to keep it up to date’. The Commission reviewed the existing
legislative framework in 2011 and will report in 2014.
In the UK there is currently a trend to decrease government involvement, with a view
to achieving:

a streamlined sector

less bureaucracy

reduced government intervention

greater efficiency through contestability.
Bodies involved in health professional regulation
In the UK, nine health professional regulatory bodies5 are set up to protect and
promote the safety of the public by:

setting the standards of behaviour, competence and education health professionals
must meet

dealing with concerns from consumers, the public and others about health
professionals who are unfit to practise because of poor health, misconduct or poor
performance

keeping registers of health professionals who are fit to practise in the UK

having the ability to remove professionals from their registers and prevent them
from practising if they consider this to be in the best interests of the public.
The nine regulators register and regulate 25 professions and approximately 1.2 million
health professionals working across the UK in 30 different health professions. These
health professionals must, by law, register with one of the nine regulators in order to
practise.
5
34
These professional regulators are the General Chiropractic Council (GCC); General Dental Council
(GDC), which regulates dentists, dental nurses, dental technicians, dental hygienists, dental therapists,
clinical dental technicians and orthodontic therapists; General Medical Council (GMC); General Optical
Council (GOC), which regulate optometrists, dispensing opticians, student opticians and optical
businesses; General Osteopathic Council (GOsC); General Pharmaceutical Council (GPhC); Health
Professions Council (HPC), which regulates arts therapists, biomedical scientists, chiropodists/
podiatrists, clinical scientists, dietitians, hearing aid dispensers, occupational therapists, operating
department practitioners, orthoptists, paramedics, physiotherapists, practitioner psychologists,
prosthetists/orthotists, radiographers, and speech and language therapists; Nursing and Midwifery
Council (NMC), which regulates nurses and midwives; and Pharmaceutical Society of Northern Ireland
(PSNI), which regulates pharmacists.
2012 Review of the Health Practitioners Competence Assurance Act 2003
One of these nine groups is the Health Professions Council, which has generic
standards for proficiency, education and training, conduct and ethics, and fitness for
practice, which are all basically the same across the 15 health professions it regulates.
There are a few additions in some of these documents to meet the specific needs of
each profession.
The Health Professions Council also runs common processes for all the professions.
For example, it has similar processes for registration (except for overseas professionals,
where it has some specialised staff), and for conduct and competence, accreditation of
education, etc. It gets professional input when needed via 800 partners on an as-needs
basis. The professions covered by the Health Professions Council have title protection.
The Council for Healthcare Regulatory Excellence6 (CHRE) scrutinises and oversees
the organisations that regulate health professionals across the UK. CHRE undertakes
annual reviews of the regulators, develops best practice and researches health
practitioner regulation. CHRE also sees itself as a ‘strong independent voice for
patients’. Following the recent review of ‘arms-length bodies’, CHRE will be required to
operate on a cost recovery basis.
New groups to be regulated
The Health Professions Council has recently taken over the regulation of 200,000
social workers and is to take over the regulation of herbal and Chinese medicine
practitioners because of a European Union (EU) directive that came into force in 2011.
The government has also said psychotherapists and counsellors should be regulated;
some consultation has taken place and this is still being reviewed.
Recently CHRE has developed policy advice for the government on how to recognise a
form of voluntary registration or self-regulation:
Encourage the development of professional conduct, ethical practice and
high standards for groups where statutory regulation is not necessary ... it
could also inform patient choice and increase public protection.
This is part of the trend to decrease the need to regulate large groups of other
professions by statute.
There has been a pilot in Scotland of employer-led regulation, whereby the employer
specifies the standards and codes it requires members of the occupational group it will
employ. This type of regulation usually applies to health care support workers.
6
www.chre.org.uk/
2012 Review of the Health Practitioners Competence Assurance Act 2003
35
Canada
Canada has a different regulatory structure to New Zealand. Although Health Canada
does have legislation governing the delivery of health care, the regulation of health
professionals is a provincial responsibility. However, there are some umbrella-type
bodies that take a national perspective in terms of health regulation.
Developments in regulation in Canada
In Canada there does not as yet appear to be a trend to decreasing regulation or
consolidation/rationalisation of regulators. Over 20 health professionals groups are
regulated under provincial law in the two provinces reviewed (Ontario and British
Columbia).
The aspect of self-regulation is strong in all information reviewed, although some
agreed national standards have been created to increase the mobility of occupations
across provincial borders.
Regulated groups have title protection, and the provinces studied do use scopes of
practice and restricted acts. The criteria for regulating new professions are similar to
New Zealand’s. However, there does not seem to be a trend to reducing the number of
groups that will eventually be regulated.
Bodies involved in regulation
Each province has a different structure. There are some cross-province umbrella
profession-specific groups, such as the Federation of Medical Regulatory Authorities of
Canada, which is the voice, both nationally and internationally, of the provincial and
territorial medical regulatory authorities. It considers positions and policies on matters
of common concern and interest. One recent project relates to creating a national
standard for licensure in all jurisdictions. This need for common national standards
arose from the labour mobility provisions in the Agreement on Internal Trade (AIT),
which enables unrestricted mobility between provinces for anyone licensed to practise
medicine in Canada. Thus in Canada, the provincial medical groups have worked
together to develop a cross-provincial border standard.
Other national groups linked to a profession, such as the Medical Council of Canada
and the Canadian Association of Nurses, set standards for entry into the profession by
international graduates and run examinations for this purpose. At the provincial level
the main groups regulating health professionals in Canada are called colleges. These
bodies have a similar mandate to the RA boards and councils in New Zealand.
In Ontario, the main legislation is the Regulated Health Professions Act 1991, which
provides a framework for regulating the scopes of practice of 23 health professions
under their respective profession-specific regulatory colleges. It includes a general Act,
a Procedural Code for all the regulated health professions, and profession-specific Acts.
The Act gives some title protection and lists some ‘controlled acts’, similar to the New
Zealand restrictive acts. The legalisation also requires mandatory reporting if a
professional is known to be involved in sexual misdemeanours with consumers.
36
2012 Review of the Health Practitioners Competence Assurance Act 2003
In Ontario, the Health Professions Appeal and Review Board is an overarching body,
which is mandated to review decisions made by the regulatory colleges with regard to
complaints. It also conducts appeals of registration decisions made by the colleges. The
Act also mandates the Health Professions Regulatory Advisory Council, which provides
advice to the Minister on whether unregulated health professions should be regulated.
The Regulated Health Professions Law Amendment Act 2009 was introduced to
improve access to care by enabling a number of health care professions to provide
more services and improve consumer safety. Recently legislation was passed, which
included expanding the services of regulated health care professionals by:

allowing nurse practitioners, pharmacists, physiotherapists, dietitians, midwives
and medical radiation technologists to deliver more services than these professional
groups are now educated and competent to provide

changing the rules for administering, prescribing, dispensing, compounding, selling
and using drugs in practice for chiropodists and podiatrists, dental hygienists,
dentists, midwives, nurse practitioners, pharmacists, physiotherapists and
respiratory therapists

removing restrictions on the X-rays that can be ordered by nurse practitioners, and
enabling physiotherapists to order X-rays for specific purposes

requiring health colleges to work together to develop common standards of
knowledge, skill and judgement in areas where their professions may provide the
same or similar services

making team-based care a key component of health college quality assurance
programmes, which ensure the ongoing competence of registered health
professionals.
In another province, British Columbia, the main trend over the past few years has been
the repeal of individual profession-specific statutes and the creation of an umbrella
legislative framework called the Health Professions Act. This initiative was guided by
the reports and recommendations of the former Health Professions Council,
particularly the report Safe Choices: A new model for regulating health professions in
British Columbia. The website quotes the Act as a resource for this development.
This province uses scope of practice statements, which are the ‘concise descriptions, in
broad, non-exclusive terms, of each regulated profession’s activities and areas of
professional practice’. The province also has restricted activities (formerly called
reserved acts), which form a ‘narrowly defined list of invasive, higher risk activities that
must not be performed by any person in the course of providing health and disability
services, except members of a regulated profession’.
2012 Review of the Health Practitioners Competence Assurance Act 2003
37
The Review Board is an administrative tribunal created under the Health Professions
Act to provide an independent review of decisions made by the self-governing colleges
of designated health professions regarding the registration of their members and the
timeliness and disposition of complaints made against their registrants. The Review
Board monitors the activities of the colleges’ complaints inquiry committees and
registration committees in order to ensure they fulfil their duties in the public interest
and as mandated by legislation. The Review Board provides a neutral forum for
members of the public as well as for health professionals to resolve issues or seek
review of the colleges’ decision.
New groups to be regulated
Both provinces studied enabled some additional groups to those regulated in New
Zealand to be covered. For example, in Ontario the following groups are regulated:

audiologists and speech-language therapists

massage therapists

respiratory therapists.
The following groups are in a transitional phase working towards full regulation:

homeopaths

naturopaths

traditional Chinese medicine practitioners and acupuncturists

psychotherapists and registered mental health therapists.
Possible implications for New Zealand
Australia
APRHA acts as a ‘shared service agency’ for all 10 national boards (ie, one secretariat
with separate governance boards, one for each profession). The national boards are
working on a definition of practice, and it is possible this concept could be used as an
alternative to scopes.
In Australia the new regime has wider powers of mandatory reporting than in New
Zealand. There is mandatory reporting of someone: placing the public at risk of harm
and practising in significant departure from accepted professional standards,
practising intoxicated or under the influence of drugs, having engaged in sexual
misconduct or suffering impairment. In New Zealand there is only mandatory
reporting of inability to perform due to a mental or physical condition (section 45).
Student registration does not happen in New Zealand, but it has been raised before.
38
2012 Review of the Health Practitioners Competence Assurance Act 2003
United Kingdom
Many of the changes in regulation in the UK over the last 10 years are not relevant to
New Zealand, because recertification/revalidation is firmly entrenched in this country,
a separate Health Professions Disciplinary Tribunal is accepted, and the Health
Practitioners Competence Assurance Act has formally entrenched a competency regime
for regulated health professionals.
The areas that could be considered under the HPCA Act review include:

consideration of title protection for some groups

review of the benefits/downsides and costs of scopes of practice

development of a Health Professions Council-type regulator with generic standards
and processes to at least regulate the smaller-health-professional ground covered by
the HPCA Act

improvements to the governance of the RAs, including: creation of governance
rather than what are effectively management boards and councils; an increase in lay
members on these bodies, which would make the regulators more focused on public
protection; more independent appointment processes for members; and
appointment of chairs rather than election by fellow board members

an increased requirement to inform/involve the public, possibly via ‘citizen councils’

better use of voluntary registers/self-regulation for those health workers who are
low risk, as this could increase information for the public and improve standards
but would be less costly than coverage under the HPCA Act.

consideration of employer regulation and/or consideration of a working passport

development of a better interface in regulation between regulators, employers,
teams and individuals in public protection – the ‘four layered approach’.
Another area that could be considered is the development of an independent
overarching body that scrutinises and oversees the organisations that regulate health
professionals, such as CHRE. This group could also monitor voluntary registers, selfregulation and employer regulation, which would have the advantage of taking the dayto-day decision-making away from the political arena. It may be able to be ‘user pays’,
like the Health Practitioner Disciplinary Tribunal. CHRE in the UK is currently being
transformed into a self-funding body, but to be effective it would need some statutory
mandate.
Canada
In both provinces studied there is at least one body independent of the Minister,
Ministry and regulators that oversees aspects of the regulatory groups’ work, in some
ways similar to CHRE in the UK.
2012 Review of the Health Practitioners Competence Assurance Act 2003
39
In Ontario and Manitoba there is a Fairness Commissioner, whose role is to bring
about changes to the registration process of regulated professions (not just health) to
ensure there are fair ways for professionals to become registered. The Commissioner
audits the registration practices, focuses on processes and publishes reports, which will
create pressure for change. The Commissioner cannot change the actual registration
requirements, but the audit process will carry weight, similar to that of a judicial
review.
40
2012 Review of the Health Practitioners Competence Assurance Act 2003
Appendix 3: Additional
information on the Acts that
interface with the Health
Practitioners Competence
Assurance Act 2003
Health and Disability Commissioner Act 1994
The HDC Act establishes the independent Office of the Health and Disability
Commissioner (HDC) to:

promote the rights of consumers who use health and disability services

help resolve problems between consumers and providers of health and disability
services

improve the quality of health care and disability services (whether public or private).
Under section 66 of the HPCA Act (and section 42 of the HDC Act), the HDC is
required to notify an authority of the outcome of any investigation under the HDC Act
that directly concerns a health practitioner. The HDC Act gives priority to HDC
investigations over that of the responsible authority under the HPCA Act.
Accident Compensation Act 2001
New Zealand is unique in its no-fault personal injury cover scheme to manage harm
sustained by a person. Other jurisdictions often rely on strong tort law applied by
courts in civil proceedings to manage incidents of harm or serious harm to consumers.
Tort law is a body of rights, obligations and remedies that is applied by courts in civil
proceedings to provide relief for persons who have suffered harm from the wrongful
acts of others.
Health practitioners are disciplined under the HPCA Act, but there is a stronger
rehabilitation and collegial approach taken in New Zealand than may be possible in a
more litigious legal environment.
2012 Review of the Health Practitioners Competence Assurance Act 2003
41
Medicines Act 1981
This Act ensures the public can use medicines safely. The Medicines Act does this
through regulating how medicines are approved for use in New Zealand, and how
drugs are stored, prescribed, dispensed and administered. The Act provides
mechanisms for different health professions to be able to apply for prescribing rights.
Those health professions that do have prescribing rights must still work within their
scopes of practice and set of competencies.
Misuse of Drugs Act 1975
This Act makes the possession and use of controlled drugs illegal, but makes exceptions
for certain practitioners or holders of licences for treatment or research purposes.
New Zealand Public Health and Disability Act 2000
The NZPHD Act governs public funding and provision for personal and public health
and disability services. The Act established the district health boards (DHBs), the New
Zealand Blood Service, Pharmac, the Crown Health Financing Agency and the Health
Quality and Safety Commission.
Part of the DHBs’ function is to participate, where appropriate, in the training of health
practitioners and other workers in the sector (s 23). The training of health
professionals in New Zealand largely occurs in DHBs, and it is important that the DHB
provides an environment with defined professional standards and competencies for
quality training.
The Health and Disability Services (Safety) Act 2001
This Act is also relevant because it relates to the licensing and audit of institutional
providers. The purpose of the Act is to:

promote the safe provision of health and disability services to the public

enable the establishment of consistent and reasonable standards for providing
health and disability services to the public safely

encourage providers of health and disability services to take responsibility for
providing those services to the public safely

encourage providers of health and disability services to continuously improve the
quality of those services.
42
2012 Review of the Health Practitioners Competence Assurance Act 2003
Employment-related Acts and risk management
systems
The Employment Relations Act 2000 (ERA) establishes the need to build productive
employment relationships through the promotion of good faith in all aspects of the
employment environment and the employment relationship. The ERA also includes the
Code of Good Faith in the Public Health Sector, which requires a commitment to
develop, maintain and provide high-quality public health and disability services, and to
ensure the safety of consumers. This is further described in the requirements to
provide for consumer safety during industrial action through contingency planning and
provisions for life-preserving services.
In addition to the Health and Disability Services (Safety) Act 2001, the provisions of
the Health and Safety in Employment (HSIE) Act 1992 also apply to the health sector.
The HSIE Act promotes the prevention of harm to all persons at work and other
persons in, or in the vicinity of, a place of work and provides a definition of serious
harm in Schedule 1. The HSIE Act places primary responsibility on the employer, who
has a general duty to provide a safe and healthy work environment. There are other
specific duties, including a requirement for employers to identify and actively manage
hazards in the workplace.
There are also contractual requirements in service specifications for quality and safety
with service providers. Employers’ credentialing, codes of practice, clinical protocols
and organisational policies together create a risk management system to keep the
public safe from risk of harm. Clinical review and audit are also important components
of the risk management system.
Commerce Act 1986
The Commerce Act 1986, which promotes competition in markets, is also relevant
when viewing the HPCA Act. The Commerce Commission maintains an interest in
ensuring the standards set by the RAs do not impose a greater barrier to entry than is
required to protect the public.
2012 Review of the Health Practitioners Competence Assurance Act 2003
43
Table A2: Summary of legislation and its interface with the HPCA Act
Legislation and purpose
Examples of possible interactions
Health and Disability Commissioner Act
1994:

Referral of complaints between
Health and Disability Commissioner
(HDC) and RAs (s 34); HDC to notify
RA if health practitioner (HP) poses
risk of harm (s 39).

HDC investigation of HP has priority
over RA disciplinary action (s 42).

HDC to advise RA of outcome of
investigation (s 43).

HDC can make recommendations to
RAs (s 45).

Director of Proceedings (DP) can
assist/represent complainants in
proceedings before RA (s 47).

HDC can bring any matter to RA’s
attention (s 59).

promotes and protects the rights of consumers

facilitates the efficient resolution of complaints
about infringements of those rights.
New Zealand Public Health and Disability Act 
2000:
Minister may appoint inquiry into
the funding or provision of services.

provides for public funding and provision of
personal and public health and disability services

establishes DHBs, NZ Blood Service, Pharmac,
Crown Health Funding Agreements, Health
Quality and Safety Commission to:

– improve, promote and protect health:
– promote inclusion, participation, and
independence of people with disabilities
– reduce health disparities by improving the

health outcomes of Māori and other
population groups
– provide a community voice in matters relating
to services
– facilitate delivery of appropriate, effective, and
timely services to protect and promote health
The management of any publicly
owned health and disability
organisation; or a complaint or
matter that arises under NZPHD Act
(s 72).

44

DHB function to participate, where
appropriate, in the training of HPs
and other workers in the sector
(s 23).
Mortality Review Committee may
require information from Protected
Quality Assurance Activities (sch 5,
cl 2).
compels the Crown and DHBs:
– promote the integration of services, especially
primary and secondary
– provide for services to be organised at a local,
regional or national level, depending on the
optimum arrangement for the most effective
delivery of properly coordinated health and
disability services.
2012 Review of the Health Practitioners Competence Assurance Act 2003
Legislation and purpose
Examples of possible interactions
Health and Disability Services (Safety) Act
2001:
Gazetted regulations below


promotes the safe provision of hospital,
residential and rest home services by licensing
and auditing providers

enables the establishment of standards for safely
providing services

encourages providers to:
– take responsibility for providing services safely
– improve continuously the quality of services.

Trans-Tasman Mutual Recognition
Arrangement
HPs registered to practise an occupation in one
country are entitled to register to practise the
equivalent occupation in the other country without
the need to undergo further testing or examination.
Commerce Act 1986:

promotes competition in markets.
NZS 8134.0:2008 Health and
Disability Services (General)
Standard: contains general and
reference information, including
definitions and the audit framework.
It replaces the general information
from NZS 8134:2001, NZS
8141:2001, NZS 8142:2000 and NZS
8143:2001.
NZS 8134.1:2008 Health and
Disability Services (Core) Standards:
contain required outcomes,
standards and criteria. They replace
NZS 8134:2001 and NZS 8143:2001.

NZS 8134.2:2008 Health and
Disability Services (Restraint
Minimisation and Safe Practice)
Standards: these are intended to
reduce the use of restraint in all its
forms and to encourage the use of
the least restrictive practices. They
replace NZS 8141:2001.

NZS 8134.3 Health and Disability
Services (Infection Prevention and
Control) Standards: these are
designed to reduce the rate of
infections in the health and disability
sector. They replace NZS 8142:2000.

HPs registered to practise an
occupation in one country are
entitled to register to practise the
equivalent occupation in the other
country without the need to undergo
further testing or examination (s 17).

This does not apply to medical
practitioners registered with the
Medical Council of New Zealand
(s 84 and Sch 4).

This Act may prevent arrangements
between competing providers that
lessen competition (such as by
agreeing prices, or creating
monopoly providers).
2012 Review of the Health Practitioners Competence Assurance Act 2003
45
Appendix 4: Models of
occupational regulation
The following descriptions provide a more detailed overview of the five broad
regulatory choices:

employer regulation

reverse registration

registration

certification

licensure.
Employer regulation
Employers must perform many functions to safely and efficiently manage health
service delivery that are similar to, and overlap with, occupational regulation. These
include recruitment checks to validate qualifications and experience, oversight of
competency in the workplace, investigation of complaints and incidents that might
include disciplinary measures, and policies around sharing of information among
health practitioners or disclosures made to consumers.
Advantages
Disadvantages

The infrastructure will already exist at
this level.

It includes health practitioners who are 
not subject to other forms of regulation.

The complexity in clinical work may make it
difficult for employers to develop and maintain
standards across all clinical activities, such
that health profession regulation can
complement employer systems.
It is not clear whether additional regulatory
oversight assists or hinders functions at the
employer level.
Reverse registration
In this model, a list or register is maintained of people found to be unsuited to work as
health practitioners, based on an assessment against health, ethical or conduct
standards. This notion of exclusion or sanction is inherent in other models; for
instance, when an employee is disciplined or a regulator removes a health practitioner
from a register of approved practitioners.
46
2012 Review of the Health Practitioners Competence Assurance Act 2003
There can be weak incentives for health professions to operate reverse registers
because it imposes a cost across all members to maintain and is a negative presentation
of their profession. There might be a case for funding by employers or government, and
it might be feasible to restrict access to a reverse register to agencies such as employers,
ACC and the HDC. Individuals would need to have access to an appeal process. The
existing Health Practitioners Disciplinary Tribunal might offer an appropriate forum.
Advantages
Disadvantages

Targets the small proportion of health
practitioners who are unsuited to practise,
rather than the vast majority who are
mostly ethical and competent.

Unsuitable people may continue to practise
until they are identified and placed on the
register.

Lowers the cost burden by focusing on a
small proportion of health practitioners.

Distrust in the register from health
practitioners.

Uses existing structures, including the RAs, 
HDC and Health Practitioners Disciplinary
Tribunal.

Provides a faster means to manage difficult
employment situations, where health
practitioners can resign to evade a
complaint or investigation.
Public dissatisfaction with the lack of
access to the register, although this is
similar to privacy provisions around credit
checks, etc.
Registration
The simplest form of regulation is for the responsible authority to maintain a register
of the names of individuals who have successfully completed training, and to remove a
person’s name from the register when it is determined that the individual has criminal
convictions, is in breach of a code of conduct or is incompetent. This is a positive list
system, funded by fees from registrants.
A simple scheme might work as follows.
Qualifications
are agreed by an organisation that represents the profession, employers or
an agency that is charged with this task.
Criteria
for establishing a breach of competency, impairment or conduct are
agreed by the profession, a representative for employers or an agency that
is charged with this task
A code of ethics
is developed to guide practice, particularly around communications with
consumers and other health care providers. This could include the HDC’s
Consumer Code of Rights
Breaches
of the conditions for registration might be notified to the regulatory
authority by consumers, other health practitioners, employers or the HDC
Appeal process
Practitioners would have access to an appeal process
2012 Review of the Health Practitioners Competence Assurance Act 2003
47
Advantages
Disadvantages

Is less costly than certification.

It is still costly, because the maintenance of
a register is expensive and includes all
health practitioners within each regulated
profession.

Provides simple indicators to consumers
and employers that the individual has
trained and there is no known reason they
should not continue to practise.

There may be regulatory creep to include
‘improvements’ that increase the standard
required above that needed for public
safety (this type of creep can shift a scheme
toward the stronger model of certification
over time).

Uses existing institutions such as the HDC,
the RAs and the Health Practitioners
Disciplinary Tribunal.
Certification
Under certification, the task of the regulatory authority is more complex, involving:
Practitioner register
maintaining a register
Restricted title
authorisation for a health practitioner to use a restricted title such
as ‘medical practitioner’ or ‘registered nurse’ (this has been a
traditional component)
Set qualifications
determination or approval of training curricula for qualifications
Training accreditation
accreditation of the educational institutions and hospitals or other
health care employers engaged in training
Certification
certification that a health practitioner has the qualification(s)
required for certification
Monitoring
monitoring a practitioner’s compliance with continuing education
requirements
Code of ethics
developing a code of ethics to guide professional practice
Investigation
investigation of complaints concerning a health practitioner’s
competency, health or conduct
Censure
imposing requirements for remedial training and supervision, or
penalties such as a fine or removal of a health practitioner’s name
from the register
48
2012 Review of the Health Practitioners Competence Assurance Act 2003
Advantages
Disadvantages

The focus is on the training, appropriate
scope of practice and continuing
competency of each registered health
practitioner.

An underlying assumption that consumers
can, and will, inspect the register to ensure
a health practitioner is registered, but
consumers are likely to rely on the
assumption that if a health service is
offered then it must have been approved by
the government (this is of particular
concern when sole practitioners offer
health and disability services).

In theory, such systems do not prevent
non-registered practitioners from offering
services.

The high costs associated with registration
of 100 percent of registered health
practitioners, investigation of complaints
and administration of competency reports
for each health practitioner.

It draws on the motivation of health
profession self-determination to delegate
regulatory tasks to the health professions.

Registration status can be used as a
standard or prerequisite by employers,
insurers and funders, resulting in little
effective difference between certification
and licensure.

The potential for complaints to arise out of
practitioner or professional rivalry, rather
than because consumers are at risk.

The potential for the separation of
regulatory authorities and the workplace
context when determining core competency
and continuing competency activities from
the regulatory level.7

The potential for weak alignment of health
profession training standards and scopes of
practice to whole of health and disability
workforce or workplace requirements (ie,
incentives favour advance of practice into
medicine, but not mixes of skills across the
non-medical profession boundaries).
7
In the UK, the NHS reports competency as part of performance appraisals for professions
other than medicine.
2012 Review of the Health Practitioners Competence Assurance Act 2003
49
Licensure
Licensure includes each of the provisions listed for certification, but also includes:
Licence
A mandatory requirement for a health practitioner to hold a current licence
to practise (practice without a licence is an offence punishable by law).
Scope of
practice
A scope of practice, which is a legal concept that captures the range of work
that a health practitioner is usually expected to perform.8
Advantages
Disadvantages

Similar to certification.

similar to certification.

There is a clear basis for prosecution of a
health practitioner who is not licensed.

Enforcement of licensure is problematic,
because regulatory standards tend to lag
behind practice reality (evidence from the
US shows that many health practitioners,
while practising according to latest
standards, can in some cases not be
practising within the letter of the law).
Figure A2 illustrates how these models of regulation overlap with respect to the
functions they include, and how the addition of functions incrementally changes the
model towards stronger regulatory oversight.

In the horizontal plane are the models of occupational regulation: employers,
reverse registration, registration, certification and licensure.

In the vertical plane there are the functional elements as described above that
characterise each model. This shows the similarities between these models, and how
as functions are added, regulatory oversight is strengthened.
8
Scopes-of-practice have become more important as overlaps have evolved between health
professions, notably medical practitioners and nurse practitioners.
50
2012 Review of the Health Practitioners Competence Assurance Act 2003
Figure A2: Functional elements of regulatory options
Employers
Reverse
registration
Registration
Certification
Licensure
Register of persons unsuited to health care practice
Check qualifications, convictions, etc
Management of competency
Employers
Investigations and disciplinary procedures
Registration
Clinical audit and open disclosure policies
Register of names and qualifications
Certification
Annual fees
Restricted titles
Licensure
Registers describe work
Prescribe training
Continuous competency
Accredit training institutions
Set scopes of practice
Restricted acts
Licence for practice
Light touch
Strong regulation
2012 Review of the Health Practitioners Competence Assurance Act 2003
51