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Amendments to the HPCA Act: 5 things to note

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As Royal Assent signs off the Health Practitioners Competence Assurance Amendment Bill, responsible authorities (RAs) are preparing to implement some big changes.  For employers, members of the public and health practitioners too, some of these changes will have an impact. We think, given the Act’s principal purpose is to protect public health and safety, that most of these changes are for the better – although changes of this kind always bring new opportunities to search for and test potential loopholes.

In this blog, we’ll focus on some of the big ticket items, and share what we think RAs need to have on their to-do lists.

1. Increased transparency from RAs about practitioner management

Transparency as a means to improve public confidence in health regulation has been a big driver behind many of the changes, and we see that reflected in provisions relating to individual practitioner management, as well as at a governance level.

Until now, RAs have been hindered by the legislation in terms of information sharing about individual health practitioners. This has caused frustration for notifiers of competence and health issues, who have felt that their notifications have fallen into an abyss.  Meanwhile, RAs have been unable to provide any kind of substantive feedback to the notifier to close the loop on the notification.  The amendments provide an express obligation on RAs to advise notifiers (albeit in limited terms) on what they decide to do with a notification.  The limitations ensure the subject of the notification is protected from having too much detail about their circumstances released.  RAs will need to update their procedures to ensure this loop is closed off, with reference to the limitations the Act puts on the extent of disclosure.

With the addition of a new section 157A requiring RAs to implement a naming policy, it appears that Parliament is looking for RAs to utilise the provisions of section 157 (publication of orders relating to individual practitioners) more frequently than has been done to date.  Again – this comes back to increasing transparency – that is, ensuring that the public is able to see that regulation is happening.

We think it also signals a fundamental shift in the way the Act – and RAs – has operated to date.  It also reflects a general trend in the sector towards naming health practitioners (see, for example, the Ombudsman’s opinion, and discussion on an HDC decision not to release information about a midwife).

Generally speaking, RAs have been hesitant to invoke section 157, and, in our experience, have usually done so when there is concern that a practitioner may not abide by any orders made, such that there is a need to be proactive about ensuring that the public is aware of those orders.  The legal requirement for a naming policy means RAs need to turn their minds to identifying some principles to guide how and when they might make section 157 orders.  Obviously, the primary motivation here (as with all decisions under this Act) will need to be protection of the public.  We suggest that when drafting their naming policy, RAs don’t just write up their past practice.  The art in this policy and its application will be in effecting Parliament’s apparent direction that RAs should be more prepared to name practitioners, without losing the trust and confidence of the professions that has been built up over the last 16 years.

We also suggest that when RAs are considering individual cases, they ensure that express consideration is given to whether section 157 orders are necessary – and if so, why.  Having a robust naming policy will help formulate and protect these decisions.

More generally, we think this section is going to be one to watch in terms of challenge from practitioners against decisions to name them.

2. Increased accountability on RAs

The amendments introduce periodic reviews of RAs’ performance against their core functions (set out under section 118 of the Act).  This mirrors activity in other jurisdictions, where structured accountability of regulators is becoming the norm.

Under new sections 122A and 122B the first review for each RA must be undertaken within 3 years of the commencement of the amendments, then at no more than 5 yearly intervals.  The results of the performance review must be posted on the RA’s website, and the RA must also report on which recommendations it will and will not be implementing (with reasons given if it decides not to implement recommendations).

Individual RAs are likely to be turning their minds to how they can ensure that they put their best foot forward when it comes time for their review.  This might include, for example, ensuring that policies are up to date and/or scheduled for review; checking that procedures are in place and are being applied consistently for all practitioner-facing actions (registration, practising certificates, health, competence and discipline).

3. Requirement to update cultural competence provisions

An amendment to section 118 requires RAs to increase their focus on ensuring that cultural competence requirements will enable effective and respectful provision of healthcare services to Māori.  RAs will need to review their cultural competence standards with this in mind – noting that while culture defines a range of backgrounds and experiences beyond ethnicity, special attention needs to be paid to provision of healthcare services to Māori. There is an identified health disparity gap between Pākeha and Māori in New Zealand.  Part of bridging that gap will be through ensuring Māori cultural needs are met by healthcare providers.

4. Increased powers of RAs

RAs now have new powers to suspend practitioners without notice where there is significant concern about the individual practitioner’s risk to public health and safety due to their conduct.  A new section 69A provides this power, with the RA being required to provide the practitioner with a right to make submissions and be heard on the matter within 20 working days of the decision to suspend.

This is a significant power that will need to be exercised with the greatest of care – and likely only in rare cases.  RAs will need to be able to justify invoking section 69A instead of the less drastic section 69, which remains unchanged.  We strongly recommend RAs develop a policy position to guide their consideration of invoking either of these powers.

5. Changes to RA process on receipt of notice of a conviction

RAs have long bemoaned the requirement to refer all convictions meeting a certain threshold to a PCC, and asked that the Act be amended to allow for discretion whether or not to refer convictions such as excess breath alcohol (EBA) to a PCC.  PCC processes are costly, and where one-off, low level convictions are involved, often come back with a determination of no further action, or a recommendation that the RA counsel the practitioner.

The changes made to the Act (under new section 67A) go some way to achieving this, although the new solution will come with its own challenges and costs.  RAs now have discretion to refer convictions either to a PCC or to a health process as set out in section 67A.  There is no discretion to take no further action upon receipt of the notice of conviction.  If the conviction is referred to the health process (which can only be done with the practitioner’s consent), upon receipt of a report on the practitioner’s health, the RA may then decide to refer the matter to a PCC, or order conditions, or take no further action.

In some ways, the effect of this change is business as usual.  The requirement to do something with a notice of conviction remains.  For the most part, we think it’s likely that practitioners will still need to go through the discipline route, unless there is something to indicate an underlying health issue.  With that in mind, we recommend that RAs consider their policy positions on what circumstances might apply to justify referral through the health pathway instead of the disciplinary process.

Concluding comments

As always, changes in legislation create new tests and new challenges.  We think in particular the impact of section 157A is going to present some risks for RAs, given the risk to individual practitioners’ reputation that naming them may bring.

As always, the best way to limit this risk is good process, transparency, fairness, consistency, and, of course, applying the least regulatory force necessary to achieve public protection.

Here at Claro, we’re well-versed in what these changes mean for RAs.  Both our legal and policy teams are here to help.

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