In Confidence
Office of the Minister of Health
Cabinet Social Policy Committee
AMENDING STATUTORY REFERENCES TO HEALTH PRACTITIONERS
Proposal
1. The Committee is asked to agree to amending six pieces of legislation so that
certain references to ‘medical practitioners’ become references to ‘health
practitioners’. The exact wording of the amendments will vary slightly
depending on the context and nature of the provision. However all the
proposed amendments will allow health practitioners operating within their
scope of practice to perform the activities.
Executive Summary
2. Several statutes set out functions to be carried out by medical practitioners
that could now be performed safely by other health practitioners. The safety
of the public is ensured by health regulatory authorities, under the Health
Practitioners Competence Assurance Act 2003 (HPCA Act). Under this Act,
health practitioners must operate within their scopes of practice, as
prescribed by the health regulatory authorities.
3. The continued restriction of these activities to doctors imposes unnecessary
costs on the public, who must often wait and pay to see a doctor when
another practitioner could carry out an examination or assessment in a more
timely and cost-effective way.
4. Health sector and government agency feedback has identified provisions in
the following eight Acts, along with associated rules, as priorities for
amendment so that other health practitioners can perform specific statutory
functions.
a. Accident Compensation Act 2001
b. Burial and Cremation Act 1964
c. Children, Young Persons and their Families Act 1989
d. Health and Safety in Employment Act 1992
e. Holidays Act 2003
f.
Land Transport Act 1998 and associated land transport rules
g. Mental Health (Compulsory Assessment and Treatment) Act 1992
h. Social Security Act 1964
5. It is proposed that the relevant sections of the Accident Compensation Act
2001, Holidays Act 2003, Land Transport Act 1998 and associated land
transport rules, Children Young Persons and their Families Act 1989, and the
Mental Health (Compulsory Assessment and Treatment) Act 1992 and
Amendment Acts 1999 and 2003 be amended through an Omnibus Bill.
Amendments will involve the replacement of ‘medical practitioner’ with ‘health
practitioner’, with some variation.
6. Amendments to the Social Security Act 1964 will be considered through the
Welfare Reform work being undertaken by the Ministry of Social
Development. The Burial and Cremations Act 1964 is currently being
reviewed by the Law Commission and amendments to the Act will be pursued
through that process.
7. It is proposed to amend the listed statutes so that references to ‘medical
practitioners’ become references to ‘health practitioners’, with some minor
variation in wording to suit the activity, to allow a wider variety of practitioners
to carry out statutory assessments and provide certification. Benefits to the
public will result in the form of reduced costs and faster access to services.
The proposed change would also facilitate innovative practice and increased
productivity through better use of practitioners’ expertise. Public safety would
be ensured through the HPCA Act, which requires health practitioners to
operate within their scope of practice.
Background
8. Several statutes set out functions to be carried out by medical practitioners.
The original intent of these statutory measures was to protect public safety by
ensuring that only health professionals with the required knowledge and skills
were permitted to perform certain tasks.
9. However, the training of health professionals has changed over time and
many professional groups are capable of performing tasks that were
previously the domain of medical practitioners. New technologies and
treatments have emerged and the health workforce has adapted and
diversified.
10. Health practitioners are now governed by the HPCA Act. This Act provides for
regulatory bodies to govern each profession and to issue scopes of practice
setting out what each class of practitioner is deemed competent to do. Thus
it is the regulatory bodies that determine what health practitioners can do
rather than legislation, except for some specific statutory functions.
11. However, historical restrictions in some legislation may mean that health
practitioners with the competencies and knowledge to perform a particular
statutory responsibility are unable to legally do so. This imposes unnecessary
costs on the public, who must often wait and pay to see a doctor when
another practitioner could carry out an examination or assessment in a more
timely and cost-effective way.
12. The current legislation also creates situations where health services must
work around the legal requirements. For instance, a nurse, nurse practitioner
or allied health professional may undertake a clinical assessment but a
medical practitioner must sign the form. Such situations are onerous for the
service, inefficient, a barrier to innovative practice, and may even place the
medical practitioner in a legally risky situation.
13. A working group convened by the Ministry of Health compiled a list of
legislative provisions that unnecessarily restrict particular activities, powers or
rights to doctors. Legislative provisions in 59 acts were identified that, if
removed, would enable nurses and certain allied health professionals to
perform specific tasks that are currently restricted to doctors.
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14. Health sector stakeholders and government agencies have identified
provisions in eight Acts, along with associated rules, as priorities for
amendment as listed in Table 1 below.
Table 1: Priority Legislative Provisions to Address
Department
Responsible
Department of
Labour
Legislation
References Identified
Accident Compensation  Medical focus with regards to aid or appliance
Act 2001
related prescriptions and input into rehabilitation
plans
Holidays Act 2003
 Proof of sickness or injury may include a certificate
from a medical practitioner
Health and Safety in
 Relating to the appointment and qualifications of
Employment Act 1992
departmental medical practitioners
 As part of their role, departmental medical
practitioners can request employees to be examined
by medical practitioners
Ministry of
Land Transport Act
 Only medical practitioners and optometrists are
Transport
1998
required to report medically unfit license holders for
medical review of their fitness to drive
 Only medical practitioners can authorise the taking
of blood specimens for alcohol or drug evidential
analysis from injured people in hospital
 Only medical practitioners attached to an
assessment centre can provide a drug and alcohol
assessment report required for consideration of
removal or reduction of certain disqualifications to
drive
 Only medical practitioners can access donor
information without paying a fee and this would be
extended to donor co-ordinators acting under the
instruction of a medical practitioner
Road User Rule and
 Only medical practitioners certify medical-related
Worktime and Log
exemptions from using seat belts, child restraints,
Books Rule
and wearing safety helmets and support applications
for exemption from the requirement to maintain a
logbook
Land Transport (Driver  Medical examinations required for the assessment
Licensing) Rule 1999
of fitness to drive can only be undertaken by medical
practitioners, optometrists and occupational
therapists.
Ministry of Social Social Security Act
 Doctor’s certificate required for applications for
Development
1964
invalids benefit
Children, Young
 Refers to only doctors performing medical
Persons, and Their
examinations on children suspected of being the
Families Act 1989
victims of abuse
Ministry of Health Burial and Cremation
 Only doctors can certify death
Act 1964
Mental Health
 District Officers and official visitors may only take a
(Compulsory
doctor on a visit to a hospital or service, and can
Assessment and
only obtain advice from a doctor authorised by the
Treatment) Act 1992;
Director
Amendment Acts 1999  Patient documents are provided to the patient’s
and 2003
usual doctor
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Comment
15. It is proposed that the relevant sections of the Accident Compensation Act
2001, Holidays Act 2003, Land Transport Act 1998 and associated land
transport rules, Children, Young Persons, and Their Families Act 1989, and
the Mental Health (Compulsory Assessment and Treatment) Act 1992 and
Amendment Acts 1999 and 2003 be amended through an Omnibus Bill.
16. Amendments to the Social Security Act 1964 will be considered through the
Welfare Reform work being undertaken by the Ministry of Social
Development. The Burial and Cremations Act 1964 is currently being
reviewed by the Law Commission and amendments to the Act will be pursued
through that process. Proposed amendments to the Health and Safety in
Employment Act 1992 regarding the qualifications of departmental medical
practitioners requires further discussion and the Ministers of Health and
Labour have agreed not to proceed with this amendment at this time.
17. Amending the listed statutes so that references to ‘medical practitioners’
became references to ‘health practitioners’ would allow a wider variety of
practitioners to carry out statutory assessments and provide certification, with
benefits to the public in the form of reduced costs and faster access to
services. The proposed change would also facilitate innovative practice and
increased productivity through better use of practitioners’ expertise.
18. The proposed changes do not pose an increased risk of harm to the public.
These provisions were selected for amendment after consultation with the
health sector, which identified that the activities could be performed safely by
health practitioners other than medical practitioners. The HPCA Act ensures
that only those health practitioners that are competent to perform an activity
are legally able to do so.
19. The purpose of the HPCA Act is to protect the health and safety of the public
by providing for mechanisms to esure that health practitioners are competent
and fit to practise their professions. It achieves this purpose through the
establishment of regulatory authorities which specify the scopes of practice of
the profession they regulate. The scopes of practice set out what
practitioners of a profession may do and are published in the Gazette.
Regulatory authorities also prescribe the qualifications for the profession they
regulate and accredit training institutions.
20. Section 8 of the HPCA Act requires that health practitioners must hold a
current annual practising certificate issued by the regulatory authority and
must not practise outside their scope of practice. The scope of practice of
every health practitioner is endorsed on their annual practising certificate.
Complaints regarding the competence of health practitioners may be referred
to a professional conduct committee. Charges that a practitioner has
practised outside their scope of practice are heard by the Health Practitioners
Disciplinary Tribunal, which has the power to cancel the registration of the
health practitioner and impose fines.
21. Amending the legislation to specify ‘health practitioner’, rather than ‘medical
practitioner’ does not mean that practitioners of all health professions under
HPCA Act will be able to perform the activity. Health practitioners may legally
only practice within their scope of practice. Therefore, only health
practitioners with qualifications relevant to the particular activity may perform
that activity. Health practitioners are required to know what their scope of
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practice allows them to do and cannot be compelled to work outside their
scope of practice.
22. The administering agencies and Ministers have been consulted and have
agreed to amendments being made.
Consultation
23. The Department of Labour, Ministry of Transport, New Zealand Transport
Agency, Police, Ministry of Social Development, Accident Compensation
Corporation, State Services Commission, Ministry of Justice, and the
Treasury have been consulted on this paper and their comments
incorporated. The Department of Prime Minister and Cabinet has been
informed.
24.
25. The Parliamentary Counsel Office has been consulted on the legislative
aspects of this proposal.
Financial Implications
26. There will be some financial implications for the New Zealand Transport
Agency associated with the proposed changes. Costs will be incurred
through the need to change Agency forms, factsheets, website information
and guidelines. Costs are not expected to be significant and the New
Zealand Transport Agency has confirmed they will be met from within its
baseline.
Human Rights
27. The proposal has no human rights implications.
Legislative Implications
28. The proposal will require legislative change. The Minister of Health will seek a
place on the Legislative Programme for 2012 in December 2011.
29. Parliamentary Counsel Office has noted the intention to introduce the
proposed Omnibus Bill in 2012.
Regulatory Impact Analysis
30. A regulatory impact statement has been prepared and is attached to this
paper.
31. The Minister of Health is satisfied that the proposals are consistent with the
expectations in the Government Statement on Regulation.
Gender Implications
32. The proposal has no specific gender implications.
Disability Perspective
33. The proposal will reduce barriers to timely access to health services and will
therefore benefit people with disabilities.
Publicity
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34. The Minister of Health will publicise the changes through a press release and
public announcements following Cabinet agreement.
Recommendations
35. The Minister of Health recommends that the Committee:
1. note that activities that health practitioners may perform are governed by
scopes of practice set by regulatory authorities under the Health
Practitioners Competence Assurance Act 2003
2. note that certain activities are restricted by statute to medical practitioners
3. note that many of these restrictions are unnecessary and could refer to
health practitioners
4. note that stakeholders have identified the following eight acts as priorities
for change:
a. Accident Compensation Act 2001
b. Burial and Cremation Act 1964
c. Children, Young Persons, and Their Families Act 1989
d. Health and Safety in Employment Act 1992
e. Holidays Act 2003
f.
Land Transport Act 1998 and associated land transport rules
g. Mental Health (Compulsory Assessment and Treatment) Act 1992
h. Social Security Act 1964
5. agree to amend the Accident Compensation Act 2001, Children, Young
Persons and their Families Act 1989, Holidays Act 2003, Health and
Safety in Employment Act 1992, Land Transport Act 1998 and associated
land transport rules, and the Mental Health (Compulsory Assessment and
Treatment) Act 1992 to change certain references from ‘medical
practitioners’ to ‘health practitioners’
or
defer consideration of amendments to the above Acts until a full risk
analysis of each decision has been presented
6. note that amendments to the Burial and Cremation Act 1964, the Social
Security Act 1964 will be progressed through alternative processes
7. note that the Ministers of Health and Labour have agreed that sections of
the Health and Safety in Employment Act 1992 regarding the
qualifications of the departmental medical practitioner will not be amended
through the Omnibus Bill
8. note that consequential amendments to the Land Transport (Driver
Licensing) Rule 1999 and other rules will be required to give effect to the
changes to the Land Transport Act 1998
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9. authorise the Ministers of Transport, Labour and Social Development, in
consultation with the Minister of Health to further amend any relevant
sections of the Acts listed in recommendation 4 and associated rules
should they become apparent in the course of preparing the Omnibus Bill
10. invite the Minister of Health to issue drafting instructions to the
Parliamentary Counsel Office to give effect to recommendation 4.
Hon Tony Ryall
Minister of Health
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