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 sixpieces 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

  1. 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.
  1. 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.
  1. 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.
  2. Accident Compensation Act 2001
  3. Burial and Cremation Act 1964
  4. Children, Young Persons and their Families Act 1989
  5. Health and Safety in Employment Act 1992
  6. Holidays Act 2003
  7. Land Transport Act 1998 and associated land transport rules
  8. Mental Health (Compulsory Assessment and Treatment) Act 1992
  9. Social Security Act 1964
  10. 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.
  11. 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.
  12. 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

  1. 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.
  2. 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.
  3. 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.
  4. 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.
  1. The current legislation alsocreates 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.
  1. A working group convened by the Ministry of Healthcompiled 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.
  2. Health sector stakeholders and government agencies have identified provisions in eightActs, along with associated rules, as priorities for amendment as listed in Table 1 below.

Table 1: Priority Legislative Provisions to Address

Department Responsible / Legislation / References Identified
Department of Labour / Accident Compensation Act 2001 /
  • Medical focus with regards to aid or appliance 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 Employment Act 1992 /
  • Relating to the appointment and qualifications of departmental medical practitioners
  • As part of their role, departmental medical practitioners can request employees to be examined by medical practitioners

Ministry of Transport / Land Transport Act 1998 /
  • Only medical practitioners and optometrists are 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 Worktime and Log Books Rule /
  • Only medical practitioners certify medical-related exemptions from using seat belts, child restraints, and wearing safety helmets and support applications for exemption from the requirement to maintain a logbook

Land Transport (Driver Licensing) Rule 1999 /
  • Medical examinations required for the assessment of fitness to drive can only be undertaken by medical practitioners, optometrists and occupational therapists.

Ministry of Social Development / Social Security Act 1964 /
  • Doctor’s certificate required for applications for invalids benefit

Children, Young Persons, and Their Families Act 1989 /
  • Refers to only doctors performing medical examinations on children suspected of being the victims of abuse

Ministry of Health / Burial and Cremation Act 1964 /
  • Only doctors can certify death

Mental Health (Compulsory Assessment and Treatment) Act 1992; Amendment Acts 1999 and 2003 /
  • District Officers and official visitors may only take a doctor on a visit to a hospital or service, and can only obtain advice from a doctor authorised by the Director
  • Patient documents are provided to the patient’s usual doctor

Comment

  1. 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.
  2. 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.
  3. 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.
  4. 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 practitionersother 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.
  5. 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.
  6. 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.
  7. Amending the legislation to specify ‘health practitioner’, rather than ‘medical practitioner’ does not mean that practitioners of all health professions under HPCA Actwill 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 practice allows them to do and cannot be compelled to work outside their scope of practice.
  8. The administering agencies and Ministers have been consulted and have agreed to amendments being made.

Consultation

  1. 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.
  2. The Parliamentary Counsel Office has been consulted on the legislative aspects of this proposal.

Financial Implications

  1. 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

  1. The proposal has no human rights implications.

Legislative Implications

  1. The proposal will require legislative change. The Minister of Health will seek a place on the Legislative Programme for 2012 in December 2011.
  2. Parliamentary Counsel Office has noted the intention to introduce the proposed Omnibus Bill in 2012.

Regulatory Impact Analysis

  1. A regulatory impact statement has been prepared and is attached to this paper.
  2. The Minister of Health is satisfied that the proposals are consistent with the expectations in the Government Statement on Regulation.

Gender Implications

  1. The proposal has no specific gender implications.

Disability Perspective

  1. The proposal will reduce barriers to timely access to health services and will therefore benefit people with disabilities.

Publicity

  1. The Minister of Health will publicise the changes through a press release and public announcements following Cabinet agreement.

Recommendations

  1. 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:
  5. Accident Compensation Act 2001
  6. Burial and Cremation Act 1964
  7. Children, Young Persons, and Their Families Act 1989
  8. Health and Safety in Employment Act 1992
  9. Holidays Act 2003
  10. Land Transport Act 1998 and associated land transport rules
  11. Mental Health (Compulsory Assessment and Treatment) Act 1992
  12. Social Security Act 1964
  13. 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 certainreferences 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

  1. note that amendments to the Burial and Cremation Act 1964, the Social Security Act 1964 will be progressed through alternative processes
  2. 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
  3. 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
  4. 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
  5. 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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