Health Practitioners Competence Assurance Bill — In Committee 
Health Practitioners Competence Assurance Bill — In Committee 
[Volume:611;Page:8058] 
Health Practitioners Competence Assurance Bill 
In Committee 
Debate resumed from 12 August. 
Clause 1 Title ( 
continued 
)  
Dr LYNDA SCOTT (NZ National—Kaikoura) 
: 
 The title of this bill should definitely be changed. For a start the term “Health Practitioners” covers a wide number of groups—chiropractors dentists dietitians medical auxiliaries medical practitioners nurses occupational therapists optometrists and dispensing opticians pharmacists physiotherapists and psychologists. The bill tries to encompass far too much. It tries to be all things to all people. The National Party will be voting against it because it has some significant problems in it. 
For a start this title should be the “Health Practitioners Incompetence in Development Bill” because not enough work was done for such a comprehensive and expansive piece of legislation. This bill is 272 pages long—a massive piece of legislation. The bill’s concept is good—what it tries to do—but it fails in its delivery. The concept was to take very successful legislation the 1995 Medical Practitioners Act and to make legislation for all those other health practitioners that incorporated the best of that Act. But the doctors do not want a bar of this bill. They have good legislation now modern legislation which they have got to grips with using. That 1995 legislation took about 3 years to really be implemented but once it started working it did solve many of the issues that had faced the medical profession over the previous 30 years. So “Health Practitioners But Not Doctors Assurance Bill” would be one title for the bill. The doctors do not want to be part of it and I support them in that. 
Some of the other groups that are coming under this bill have very outdated legislation. The Physiotherapy Act dates from 1949 the Occupational Therapy Act dates from 1949 and the Dietitians Act dates from 1950. That legislation did need to come up to speed to be modern but the legislation we have before us which tries to incorporate all these groups certainly fails to be modern legislation because these groups are different and have different needs and different wants. Nurses and doctors for example have different Acts of Parliament that they have been working under. The Nurses Act dates from 1977 and nurses certainly want more modern legislation but the doctors do not. They want to continue to work under the 1995 Medical Practitioners Act and I certainly will be supporting them in that. 
The bill contains the brand new concept of scopes of practice but there is nothing in the title to suggest that something very new and different is being developed here. Many people do not have a firm view of what the term “scope of practice” means. It is a new concept. No intellectual work about what scopes of practice would mean was put down on paper so that it could be reviewed. How this concept will work has been a major issue of concern. When there are conflicts between scopes of practice how will they be sorted out? Only in the future will we know how this bill is going to work in practice. It is going to have a 3-year review and I am extremely pleased about that because I do believe that there will be major hiccups with the implementation of the bill. That is why National will not be supporting it; we think it should have had more work because it is such a comprehensive piece of legislation. 
Other problems with the bill which have been of major concern to people have been issues around the quality assurance activities. 
PITA PARAONE (NZ First) 
: 
 Tena koe ki te hemana. I am pleased to stand to participate in this debate on the title. Like the previous speaker I have some reservations about this bill and New Zealand First has already indicated in an earlier debate that we will be opposing it notwithstanding that there are some Supplementary Order Papers that we support. 
I think this bill would be more appropriately referred to as the “Make Believe It Is the Medical Practitioners Act Bill” because when this bill was first conceived it was believed that it would replace the Medical Practitioners Act and be in a much better form. Unfortunately the bill is significantly inferior to that Act as a legislative regime for the protection of the health and safety of the public. In part this difficulty is probably due to underestimation of the sheer complexity of developing umbrella legislation that covers such a diverse range of professions in one go and within a relatively short period of time—groups like medical practitioners occupational therapists and opticians just to name a few. 
A number of those professional groups are somewhat disappointed in the bill as it is now presented to this House. In fact some of them wish to be exempted from it. I hope that when we come to consider Supplementary Order Papers some consideration is given to that wish given that we have a 3-year review of the Act so we can see for ourselves whether there is a need for those professions to be included. 
The bill encompasses a lot of people. It covers a lot of occupations and I believe that in essence it covers too much. The bill is a big piece of legislation and although it has been around for a couple of years I think it is too big in its entirety. However I need to concede that the original intention of the bill was a good one. 
The Health Committee reported this bill back to the House with three important and positive changes: a less restrictive though still bureaucratic quality assurance model; provision for a majority of health practitioners on disciplinary tribunals; and provision for a review of the legislation after 3 years. Although these changes are welcome they do not alter the essential nature and direction of the bill. 
I know that some professional associations have concerns about aspects of this new legislation that will bring in untested concepts undermine self-regulation bureaucratise quality assurance to an unworkable extent and allow much higher levels of political interference in professional processes. Scopes of practice is a new legislative concept but it is the basis of the bill. Wide discussion or consultation about this innovation has been somewhat limited. It is untested outcomes are uncertain and confusion remains about its definition and utility. I know for a fact that this whole issue of scopes of practice because of its untested nature in this country will pose some difficulties for many practitioners operating at the moment. 
JUDITH COLLINS (NZ National—Clevedon) 
: 
 I was on the Health Committee throughout the many submissions on and long process of this particular bill and I have some concerns about it. One of the things this bill tries to do is to give to the health professions other than the medical profession a system along the lines that the doctors have with the Medical Practitioners Act. However it does not quite do that. Worse than that it tries to have a one-size-fits-all sort of approach to the many professions and occupations involved in the health sector. 
To give the Committee an idea of the groups that submitted to the Health Committee—all wanting to be defined as health professionals under this bill and all wanting to have some sort of official sanction because they are currently unlicensed and unregulated—I will list some of them. They included acupuncturists ambulance officers anaesthetic technicians applied behaviour analysis practitioners—whatever that is; I am sure there are a few members on the other side of the Chamber who could tell us because they have probably been to them—audiologists audiometrists embalmers social workers speech language therapists and traditional Chinese medicine practitioners. There was a huge range including a whole lot more that are listed in the bill but that I will not read out now. One of the reasons this bill does not do what it is supposed to do is that it does not include any of those particular groups. 
It does however deal with chiropractors dentists dieticians medical practitioners nurses occupational therapists pharmacists physiotherapists psychologists and a couple of others including optometrists. Unfortunately those groups are not always going to be happy with the results of this bill because they wanted some good legislation that treated them as professionals but this particular bill does not really do that. It is all about giving a tremendous amount of power to the Minister to control those occupational groups. They really will not be able to call themselves professions when the bill is enacted because part of being a profession is having a self-regulatory authority. This particular bill should be named the “Minister’s Regulatory Authority for All People Connected to the Health Sector Bill”. It should not be called the Health Practitioners Competence Assurance Bill because it is all about taking away from professional bodies groups and highly trained professionals the right to regulate themselves. There is a reason for that: the Minister does not have any faith in the doctors to know how to be doctors the nurses to know how best to be nurses or the occupational therapists to know how best to be occupational therapists. Unfortunately this bill will not solve the problems of the very many groups that currently work in the health industry. That will be a tremendous disappointment. 
This particular bill apart from being somewhat late in coming back to the House is a tremendously huge omnibus bill and has very very little to do with assurance of health practitioners’ competence. If anything it really has more to do with cultural competence. In fact it should be called the “Health Practitioners Cultural Competence Assurance Bill” because that is in fact one of the main requirements of this bill. That is one of the reasons the National Party would not in a month of Sundays support this sort of bill or its title. Instead of our just providing for professional and ethical competence we now are regulating for cultural competence but unfortunately this particular bill does not say what that is. But the nurses union knows what it is—it means whatever it says it does. That unfortunately is a very sad fact. That is why this bill should be renamed perhaps the “Health Practitioners Cultural Competence Assurance Bill” but that might require someone to define what “cultural competence” is and nobody on the select committee could possibly come up with that sort of suggestion. 
HEATHER ROY (ACT NZ) 
: 
 ACT New Zealand like the National Party and New Zealand First is opposing this bill. It is a large and very ambitious piece of legislation that has been over 3 years in the making. 
If we look specifically at the title we see there is quite a lot to say about it. “Health Practitioners” of course is reasonably easy to define and we know that this legislation if passed will repeal 11 other pieces of legislation governing 11 different health bodies. But when we come to the other two words in the title “Competence Assurance” I would like to ask the Minister how she will assure that competence does happen. How does one assure competence? It always worries me when a word in a title cannot be defined. Members will see if they look through the bill that there is no definition of “competence”. We were told in the Health Committee when we questioned the absence of a definition of “competence” that it was too hard. It was too hard to define “competence” but not too hard to call in this bill for competence. How can health professionals be reasonably expected to meet this standard when we do not even know what the standard is? The standard is too hard to define. What are health professionals supposed to aspire to? What level of practice should they meet? If competence cannot be determined how can judgments be made of individual health practitioners? How can competence be measured? How can their performance be measured? The answer of course is that this is not possible. 
We need to look at another title. I think the Government is trying to assure that health professionals will be held to account for every single mistake that is made. We should perhaps call this bill the “Health Practitioners Must Not Get It Wrong Bill”. That would be far more appropriate because that is what the Minister means when she is talking about competence assurance. Competence as anybody who has worked in the health field will know is about getting the right environment. We have been told often that the bill is there to protect patients. It is to offer them protection. That is a very noble thing and something that professions should aspire to. But I would contend that we should aspire to achieve that by using self-regulation. The way to ensure the best possible treatment for patients is to provide a safe working environment for the professionals to operate in and to leave them to regulate themselves; in that way the health professionals will provide the best protection for patients. 
If we look at the doctors in isolation for a moment we see that since the Medical Practitioners Act came into being in 1996 they have come a long way. Their self-regulation has developed so that they have a very good set of guidelines for quality assurance and for their vocational training. This legislation is supposed to be modelled on the Medical Practitioners Act. The other professions liked what they saw. They liked the way that things had developed for the doctors and were very keen to be part of that and that was quite right. However what we have now in this large piece of legislation is something that does not resemble the Medical Practitioners Act at all. The health practitioners who are currently working under very outdated legislation—the physiotherapists the dieticians the occupational therapists and some of the other health practitioners to a lesser extent—are very keen for change. But change for the sake of change in itself is not a good thing. The environment has to be right and this bill will not provide the right environment for those practitioners to work in. In fact it would be better for them if their current legislation were amended rather than their moving to the Health Practitioners Competence Assurance Bill. 
My Supplementary Order Paper which we will discuss when we come to some of the other parts removes doctors from this legislation. The New Zealand Medical Association and the Association of Salaried Medical Specialists are very keen to have their members the medical practitioners removed from this legislation and my Supplementary Order Paper does just that. They have decided that their requirements have not been addressed. The professional bodies especially found that their issues had not been redressed. 
PHIL HEATLEY (NZ National—Whangarei) 
: 
 I gladly rise to speak on the title. I would like to shorten the title even more and call this bill the “Incompetent Bill”. I am sure that members on this side of the Chamber would agree that “Incompetent Bill” would be a good title for this legislation. I have heard from throughout the electorate of Whangarei and Northland and from those throughout New Zealand who write to me widely that this legislation will create chaos in the health sector. 
Hon Harry Duynhoven 
: How many letters has the member had? 
PHIL HEATLEY 
: Harry Duynhoven the “Abel Tasman” of the Labour Party who came to New Zealand and decided that he did not like it and went home should read the bill before he shouts at this member who has consulted widely throughout the country on this matter. Health practitioners throughout the country say that there will be chaos in the health system because of this legislation. 
I want the Minister to know that I have consulted widely on this matter. Not only have constituents come to me. My family—and I would like the Minister of Health to take this into account—is riddled with health professionals. I am married to a nurse. I have a sister who is a nurse a sister-in-law who is a nurse a mother who is a nurse and a grandmother who was a registered nurse God bless her soul and may she rest in peace. Also my father and mother-in-law are anaesthetists and my father worked in occupational therapy. So many of my family members are in the health profession and I have consulted widely at dinner after dinner breakfast after dinner lunch after dinner and on it goes. Out of interest I can tell the chair that because we have so many health professionals in our family my wedding day was voted the safest in history—there were so many health professionals there. In fact to add more to the argument I point out that my brother-in-law is a funeral director and should the rest of the family fail he will pick it up at the other end. 
The Minister should take notice of that and she should know that she is not welcome in my home for Christmas dinner because she is harming every one of them in their careers as they seek to help New Zealanders. So she is not welcome for Christmas dinner in my home. I have not only consulted widely those in my family who are involved in the health profession but also those throughout the electorate that I represent. I have consulted pharmacists optometrists those in the dental profession nurses occupational therapists physiotherapists psychologists dietitians and on it goes and they are all saying that there will be chaos with this bill and that is why it should be renamed the “Incompetent Bill.” 
I am interested in the slant put on cultural issues and cultural respect in the bill. As if people when they take their children to the doctor or medical professional are concerned about cultural issues! They just want their kids to get well. That is all they want. Why this legislation focuses so much on cultural issues I have no idea. When Maori Pacific Islanders and all other New Zealanders take their kids to the doctor they want their kids to get well and that is their primary concern—not all the other mumbo-jumbo which the Minister is promoting that goes with it. I was concerned to see so many other groups that wanted to line up as registered health professionals in this country. They include acupuncturists herbal medicine practitioners homeopaths hypnotherapists and on the list goes. They all want to be recognised by this Minister who willy-nilly through the bill has decided to make all health professionals accountable to the nth degree and wants to stand over all of them following their scalpels as they repair New Zealanders on the operating table. 
JUDY TURNER (United Future) 
: 
 It is important to look at the context of this legislation because it goes back further than people think. In 1999 the Hon Nick Smith along with 828 other people petitioned the Government for an inquiry into the decision by the Medical Council of New Zealand in relation to its consideration of one Dr Hornbeck’s approach for medical registration in New Zealand. They believed that the process of registration in New Zealand was an example of how the Medical Council is denying New Zealanders access to specialist medical services through incompetence or anti-competitive practices. The Health Committee recommended that the Government develop a mechanism and the recommended term for that mechanism was “a scope of practice”. That was to define what a practitioner can or cannot do and under what circumstances so that overseas doctors could be used effectively for the benefit of the New Zealand public under prescribed terms. 
I now come forward a year or so to 2001 and to a member’s bill in the name of the Hon Ken Shirley called the Medical Practitioners (Foreign Qualified Medical Practitioners) Amendment Bill. That bill was considered by the Health Committee and again part of the committee’s report was the inclusion of the notion that if we determined what a doctor can and cannot do then we could make provision for professionals to work in a limited capacity. Again the term “scope of practice” was bandied around. There were some genuine concerns about the inconsistent ways in which colleges were interpreting the Medical Practitioners Act. Certainly the Health Committee’s report in 2001 was clear that the proposed Health Practitioners Competence Assurance Bill would develop the ideas of scopes of practice and that there would be no fear regarding that because as the report stated it was not as we understand it to be prescriptive about the registration of practices. 
We are now more than halfway through 2003 and the concerns raised by some of the other parties have had their day. This legislation puts in place strategies to more than meet their concerns. For instance the Hon. Dr Smith’s inquiry recommended scopes of practice as did Mr Shirley’s bill and they are both included in this legislation. The inquiry asked for transparent registration processes as did the recommendation from Mr Shirley’s member’s bill and those are included in the bill. The inquiry asked for an independent appeals body as did the report on Mr Shirley’s bill and again that has been delivered in this legislation. We need to look at what is proposed. It does need to be kept broad because it is determined to include whatever practices impose some risk to the health of New Zealanders. 
 Some people are concerned that maybe acupuncturists at some time will be included in this bill. For Pete’s sake! Acupuncturists put needles into people. I imagine that those who submit themselves to the process of acupuncture would like to know that eventually these people because of the practice and the risk involved will be included under this legislation. 
The legislation is open-ended. If a group wants to come in and it meets the requirements set down by the Minister of Health and by this legislation it will be welcomed. There is a review clause in the legislation. Some of the groups were concerned that there would be delays after the passing of this legislation. They felt that in 3 to 5 years’ time they might find themselves still not included. The fact there is a review clause means that in the worst-case scenario those groups will have the chance to be included as they so wish within 3 years’ time. I expect it to be sooner than that. I look forward to the rest of the Committee stage and I will leave some of my comments until the appropriate time. 
MARK PECK (NZ Labour—Invercargill) 
: 
 I move  
That the question be now put 
. 
A party vote was called for on the question  
That the question be now put. 
Ayes 69 
Labour 52; Green Party 9; United Future 8. 
Noes 48 
New Zealand National 27; New Zealand First 13; ACT New Zealand 8. 
Motion agreed to. 
A party vote was called for on the question  
That clause 1 be agreed to. 
Ayes 69 
Labour 52; Green Party 9; United Future 8. 
Noes 48 
New Zealand National 27; New Zealand First 13; ACT New Zealand 8. 
Clause 1 agreed to. 
Part 1Preliminary and key provisions 
LINDSAY TISCH (Junior Whip—NZ National) 
: 
 I raise a point of order Madam Chairperson. We have had just 30 minutes of debate on the title. We started at 20 to 5 and finished at 10 past 5. The debate on the title is very important. It sets the scene for the rest of the debate and I want to register my concern that we heard only six speakers on the title. A number of National members have been seeking the call right from the start. It is not as though they just came in at the last minute. We had members who were seeking the call and I was one of them. As we move through the next part I would like to think that you will be fair and equitable and give as many members as possible the opportunity to speak on this very very important legislation. It contains 272 pages and I think it needs much closer scrutiny. When we have speakers who are preparing to go for the call who are bringing forward new material— 
Government Members 
: New material! 
LINDSAY TISCH 
: How can they say it is not new material when there have been only six speakers? My point is that it is very important that we give due consideration to the speakers who have competence in this area. We have a doctor who was seeking the call who understands this issue and did not get a call on the title. I am asking that you give consideration to this matter. 
The CHAIRPERSON (Ann Hartley) 
: I thank the member for his comments. As he knows he cannot relitigate the closure. I remind him that the title debate is a debate just on the title. I remind him also that this bill has been to a select committee. That is very clear. I assure the member that the points he makes have been noted. 
Dr LYNDA SCOTT (NZ National—Kaikoura) 
: 
 This is a very large comprehensive piece of legislation and we must remember that significant amendments have been made to it. Also there are a large number of Supplementary Order Papers. Many health professionals out in the community are very concerned about the bill. It should not have been a political bill. It should not have had the number of people voting against it that it has tonight in the Chamber. If it had been better organised if it had been better consulted on that would not be the case. There are many times around the table at the Health Committee that we do not vote on party lines; we vote on what is in the best interests of the country. We work together. We have had a very good working team. But this bill has seen a large number of members in the Chamber voting against it. Why is that? The reason is that there are significant concerns. 
One of the major concerns in Part 1 is about scopes of practice and the fact that they are ill-defined. Setting out to protect the public when health practitioners are dealing with them is a very valuable concept and everybody wants to see that happen. But we may see public safety eroded not improved by this bill. We do not know what the term “scopes of practice” actually means. Are scopes of practice to be so broad that they will be meaningless? Are they to be so narrow that there will be an individual scope for every single person? In the past we determined what health practitioners could do based on the exams they passed. People passed an exam passed a registering authority and then were able to do a set number of things. Under this bill we have a thing called scopes of practice but nobody is too sure what that means. Because of that doctors do not want a bar of this bill. The Association of Salaried Medical Specialists does not want a bar of it. The New Zealand Medical Association does not want a bar of it. They understand. They have been working in here and the scopes of practice—[ 
Interruption 
] 
The member opposite continually chips in. She has no concept of what this bill is about. She does not understand what scopes of practice are—nor does anybody else. It is about time she stood up and took a call to show us she has actually read something and understands something about health care in this country. It is extremely important that we protect the health and safety of the public but this bill will not do that. It brings in too many new concepts. It tries to be too ambitious. It tries to bring too many practitioners together under one bill. The Medical Council of New Zealand now has to determine scopes. Will it do that for every individual who comes into this country from overseas? Will it have to determine his or her individual scope of practice? That is a huge task to ask of the registering board. 
We also have to look at what will happen if there is a dispute. What will happen when there is a dispute about scopes of practice? The Minister will have the right to determine what happens with overlapping scopes. Scopes are to be quite narrowly defined and the example used that was of immense concern was nurse anaesthetists. So if we have medical anaesthetists and nurse anaesthetists how do those scopes interrelate? The Minister in two of her speeches has already endorsed nurse anaesthetists. She has already said it is a great concept that it is a really good thing and that it should happen. As the Minister has endorsed the concept I would like her to take a call and tell us how she is going to determine the way these overlapping scopes will be differentiated and how the nurses and the doctors will be able to determine the way a nurse anaesthetist will practise in this country. 
I am in a pretty unique position because I have been both a nurse and a doctor. I can tell members that as a nurse I sometimes thought I had more knowledge than I actually did. When I trained as a doctor I realised that my diagnostic skills as a nurse were not as great because in nursing it is often done on pattern recognition. One gets to see a lot of people who have certain conditions. But when things are not quite as they seem then figuring out a diagnosis requires more knowledge. 
PITA PARAONE (NZ First) 
: 
 I share similar views to those of the previous speaker. We are talking about Part 1 where we have the opportunity to define just what different comments mean and I have noticed that something is missing from the bill. I am concerned by a particular part that is absent which relates to the Treaty of Waitangi particularly the principles of the treaty. Why is it that I need to ask this Committee and Government members why this major legislation unlike a number of previous bills in the health field does not include the principles of the Treaty of Waitangi? The member for Whangarei made mention of the fact that irrespective of the culture of the patient parents are interested only in having services delivered to their children but where is the relevance in having people who deliver services to those of another culture particularly Maori not having obligations to the principles of the treaty? I suggest to the Committee that the principles of the Treaty of Waitangi should have been included in this bill. 
The other point I will make relates to scopes of practice. During the debate on this bill much reference will no doubt be made to scopes of practice. They are not the same as the registration provisions of the Medical Practitioners Act—they are inferior to those provisions. “Scopes of practice” is a phrase used by the ministry rather than the health professionals and it could be replaced by the retention of the Medical Practitioners Act. Some consideration should be given to that. 
I also seek clarification of the definition of “professional peer”. In the case where regulating authorities are responsible for more than one group it is wrong to describe a professional peer as a person who is registered with the same authority. For an optometrist it would mean that after earning a degree in optometry following 4 or 5 years at university he or she would be given the same professional classification as a dispensing optician who would have had vocational training at a technical institute for around 18 months including distance learning. Peers must be those who practise within the same scope of practice. 
While I am talking about optometrists I point out that the Optometrists and Dispensing Opticians Act will be repealed by the enactment of this bill. That Act provided protection for the public in respect of both prescribing and optical appliances. The existing legislation defines who can be registered as an optometrist and what an optometrist may legitimately do and it prevents anyone other than an optometrist from practising optometry. It also effectively controls prescription optical appliances which are classified as medical devices within the Medicines Act. As it stands this bill provides insufficient protection for the public. It replaces only part of the old legislation—namely that which governs what an optometrist may do. This bill does not provide any controls over the prescription of optical devices or the sale or supply of prescription optical appliances such as spectacles and contact lenses even though there are grave risks for the public if they are supplied inappropriately. 
The bill does not contain an express provision regulating the prescription of medical devices. In the case of medical practitioners that is covered by other legislation that is not being repealed. 
HEATHER ROY (ACT NZ) 
: 
 I will look firstly at the commencement of this bill. The commencement is staggered: some parts of bill come into force on the day on which the Act receives the royal assent but the bulk of the bill comes into force on the day that is 1 year after the date on which it receives the Royal assent. That gives particularly the larger groups the medical practitioners and the nurses in particular just 1 year to sort themselves out particularly with regard to the scopes of practice. I agree with both of the two previous speakers’ comments about scopes of practice. They are untried and untested and New Zealand patients will be the guinea pigs. It is the larger professions in particular that will have a lot of decisions to make about scopes of practice. They will be very difficult to develop and we will have only 1 year in which to sort them out. 
I suspect that the Government thinks that scopes of practice will make New Zealand and the New Zealand health scene in particular a world leader but nothing could be further from the truth. Lynda Scott said that public safety will be eroded and she is quite right in that. That is my main concern too. My fear is that rather than enhancing protection for the public public safety will be eroded as a result of scopes of practice coming into being. 
Going back briefly to the comment about New Zealand being a world leader if we just think for a moment about what it is that holds our health system together at the moment we will see that it is the health professionals. It is the doctors and nurses who have to hold things together at the coalface in very difficult circumstances. This legislation will do nothing but make things worse for them. The self-regulation that health professionals have been subject to so far is the professionalism that we see in our hospitals and general practices today and which we see our health professionals exhibiting whenever we go to visit them. The scopes of practice will make life very difficult for them. 
We have much longer waiting lists than elsewhere in the world and we have much longer waits for radiotherapy and chemotherapy which put patients under stress. When one asks patients what exactly is good about New Zealand’s health system the thing they say is the care that they receive from the doctors nurses physiotherapists occupational therapists and other health professionals whom they visit. Instead of accepting that that is the part of our health system that is good and which works well and effectively we are now going to turn the whole lot on its head and change those things for the health professionals. 
If we move further on to the definitions in this part we see that the definition that is noticeable by its absence—quite apart from the definition of the principles of the Treaty of Waitangi which the New Zealand First member talked about—is the definition of competence which I talked about in the debate on the title. Where is the definition of competence? It is not there. Why? Because it was too hard to define but our health professionals will still have to be subject to competence. It will be impossible for them to try to work under that. 
Let us now move on to the definition of medical practitioner. Part of my Supplementary Order Paper 111 is to omit the definition of medical practitioner throughout the bill particularly in this part and to substitute the following definition “medical practitioner means a person referred to in section 139 of the Medical Practitioners Act 1995”. Members might ask why I am having that omitted; it is because doctors do not want to be part of this legislation. They can see that it is not going to work for them. They feel that their concerns have not been adequately addressed and that this legislation will not enhance safety for the public so they do not want to be part of this bill. Likewise we have heard that optometrists want to be removed from the bill. They too have grave concerns about quality assurance scopes of practice and in particular the ministerial control that will result from this bill being made law. 
On 22 July the Minister of Health said in the  
New Zealand Herald 
 that this bill is like “doctors knowing best” all over again. Well we are not going to have that. We are not going to have doctors knowing best despite the fact that they are meant to diagnose problems and that they have had 6 years’ initial training and then significant training afterwards. No instead we are now going to see the “Minister knows best”. The Minister of Health knows best and she will tell health professionals what they are supposed to do. Ultimately she will make the decisions about how they go about their practice and how they put themselves into practice rather than allowing self-regulation which has worked very effectively particularly with doctors. If other professions were given that same opportunity it would work well with them. 
SUE KEDGLEY (Green) 
: 
 The Green Party supports the Health Practitioners Competence Assurance Bill and many of the provisions within it as we have outlined but we do have some concerns. I will touch on some of those concerns that relate to Part 1 which sets out the key provisions in the bill. 
We are concerned that the bill leaves most of the detail of the new system that we are setting up to be decided by regulation. It sets up a framework but it provides no ongoing parliamentary scrutiny over the implementation of the legislation. We were very happy that we managed to get an agreement in the Health Committee that there will be a review of the legislation in 3 years. We think that is absolutely critical and without it we would have had very serious concerns about the bill because this sets up an overarching framework and it leaves all sorts of incredibly important issues to be decided as I say by regulation by Orders in Council which sound very good but are in fact a secret regulatory mechanism that does not involve any parliamentary scrutiny. Basically a Minister has a meeting with the Governor-General and something is agreed to in that so-called meeting of the Executive Council but it does not involve debate and scrutiny in Parliament. 
One of the issues that we are concerned about and which will not be scrutinised by Parliament is scopes of practice. Everybody has mentioned them. The scopes of practice that this bill sets up are incredibly broad. It is a new concept. I think there is one province in Canada that has something similar but they are an untried and untested mechanism which is why so many of the health professionals have real concerns about them. We are concerned about what happens if there are disputes over these scopes of practice—which are bound to happen—how they will be resolved and what will happen given that Parliament will have no involvement even if very serious disputes occur. 
I give members an example of a potential problem. Say the physiotherapists decide in their scope of practice that they would like to do acupuncture. If my amendment is not successful and acupuncturists are not covered by this bill we will have physiotherapists for example and maybe even doctors deciding to include acupuncture in their scopes of practice. How will we be certain that they will not effectively exclude acupuncturists in their scopes of practice and what will happen if the acupuncturists have a dispute? It will be solely up to the Minister to decide. 
Another mechanism is the ability of the Minister to say that certain activities are restricted. That makes sense. It means that only certain health practitioners will be able to perform a restricted activity. It would be quite logical for acupuncture to be one of those restricted activities because acupuncture does involve poking needles into people and one only needs to think of what would happen if needles were not sterilised if they were re-used or if they were poked into the wrong places to realise that it would be quite a serious health issue. Of course the logical conclusion is that acupuncturists should be covered by this bill. If they are not and it is made a restricted activity that will mean effectively that only health professionals who are covered by this bill will be able to practise that activity. Once again that could mean that acupuncturists in New Zealand are not able to practise their profession even though many of them have spent 5 to 7 years learning their practice. So that would be grossly unfair. 
That is the sort of anomaly that can very easily occur because so much of the detail of this bill—the scopes of practice the restricted activities—are all left to be decided by regulation. 
Hon GEORGINA TE HEUHEU (NZ National) 
: 
 I am pleased to rise and take a call on the Health Practitioners Competence Assurance Bill. I want to comment in the main on clause 3 “Purpose of Act” which sets out the principle purpose as “to protect the health and safety of members of the public by providing for mechanisms to ensure that health practitioners are competent and fit to practise their professions.” There is nothing wrong with the intention which is why National supported this bill going to the Health Committee but there is everything wrong with this bill because due to the way this bill is organised and structured it does nothing of the sort. Although it is a significant piece of legislation it deals with the health and safety of the public. No less than that is at stake. 
I flag the concern that there seems to be a little bit of a proclivity on the part of the Chair to ring the bell maybe with the intention of taking early closure calls and I suggest that that is arrogance on the part of the Government which does not recognise the significance of this legislation. Members should not forget— 
Hon Harry Duynhoven 
: The bell is on a timer. 
Hon GEORGINA TE HEUHEU 
: Does somebody want to take a point of order? Members should not forget part of the background to this bill which was the dreadful experience that many New Zealanders went through in this country as a result of practitioners like Dr Bottrill Dr Graham Parry Dr Morgan Fahey—[ 
Interruption 
] The lady member on the other side of the Chamber can shout all she likes but members should not forget that New Zealand women have been at the receiving end of incompetence in that sector and that is why we supported this bill going to the select committee. We want to see legislation that ensures the safety of the public of New Zealand and particularly of New Zealand women because it seems to me that they have been at the receiving end of incompetence in the past. This bill does not do it and that is a great shame. 
Clause 3 the purpose clause states: “This Act seeks to attain its principal purpose by providing … (a) for a consistent accountability regime for all health professions;”. It does not do that. Instead for that we can read a highly regulated mechanism with no transparency or proper scrutiny. That does not ensure the safety of the New Zealand public. Clause 3(2)(b) states: “the determination for each health practitioner of the scope of practice”. My colleagues and other members in the Chamber have talked about that. It is a scandal that there appears to be no expansive written documentation that shows that the Government did any real work on the concept of scopes of practice. 
I am looking forward to the Minister in the chair Annette King rising to her feet and expanding on that concept. Scopes of practice is an untried and untested concept and while it is a great thing for New Zealand to be leaders in the world we would only want to be a leader if we had done the homework and the hard yards and it does not appear that that has been done in terms of the notion “scopes of practice”. So the clause fails on its second leg as well. 
Clause 3(2)(c) refers to the fact that no health practitioner can practise outside his or her scope of practice. If we do not know what that means how are the health practitioners to know? How are they to know whether they are practising within it or whether they are practising outside it? What safety is that for anybody? 
Clause 3(2)(d) provides for the “power to restrict specified activities to particular classes of health practitioner to protect members of the public from the risk of serious or permanent harm;”. The same comment can be made in relation to that. If the preceding criteria for achievement of the purpose are not satisfied that one certainly will not be either. 
JUDY TURNER (United Future) 
: 
 I just want to take a brief call because I have a concern about Part 1 and one of the Supplementary Order Papers. Part 1 refers in clause 9 to restricted activities and while that term has been left to be defined at a later date by those who should be making that decision not members of Parliament Heather Roy’s proposed substantial amendment—which she has very sincerely put together—does not actually make any changes by my observation to clause 9. The problem that is then created is that if doctors pull outside of this legislation and stay with their own existing legislation and then if invasive surgery anaesthesia and some of the things that we know are done by medical doctors become restricted activities anybody outside the Act would not be able to perform those activities. So my concern with Heather Roy’s Supplementary Order Paper is that it could work against the very people I think she is trying to help with her amendment in that those people could then be unable to perform surgery unable to give anaesthetics and unable to perform activities that we can anticipate will probably be listed under the restricted activities because that is not amended. 
I want to draw members’ attention to that because I think it could have serious consequences for medical specialists in particular. 
Dr PAUL HUTCHISON (NZ National—Port Waikato) 
: 
 Thank you Madam Chairperson for the opportunity to speak on this very important Part 1 of the Health Practitioners Competence Assurance Bill. Those who have to work under this legislation have expressed their lack of confidence in this Labour Government by withdrawing their support for this bill because of the Government’s gross incompetence in drafting such an inappropriate bill. It is of huge significance that those practitioners—the Association of Salaried Medical Specialists and the New Zealand Medical Association—have withdrawn their support for this bill because they have no confidence in it. After all they are the very ones who will be required to take ultimate responsibility when the going gets tough. 
I note that the purpose clause states: “The principal purpose of this Act is to protect the health and safety of members of the public by providing for mechanisms to ensure that health practitioners are competent and fit to practise their professions.” How on earth can an Act protect the health and safety of members of the public? Once again because the Minister of Health failed to listen to the professions she has not listened to their suggestion when they said: “We do not accept that this Act on its own will protect the health and safety of members of the public.” This clause as currently drafted conveys absolutely that impression. The professionals said: “We suggest that the first sentence be amended to read ‘The principal purpose of this Act is to assist in protecting the health and safety of members of the public.’ ” 
The Minister of Health is so far removed from reality that she thinks an Act alone will achieve its purpose. Let us read on a little bit further for some of the purposes of this bill. I note that one of the basic principles of New Zealand professional tradition has been left out of this bill and that is the concept of professional self-regulation. It has been totally left out of this bill. It is so hugely important and so hugely respected amongst the professions of New Zealand yet this Labour Government leaves it out of the bill. I intend to move an amendment to subclause (2) of the purpose clause. My amendment would add to the subclause: “(f) the recognition of professional self-regulation as the basis of health practice in New Zealand.” This is highly important this is highly constructive and I hope that the Minister and the Government will take note of it. 
I did notice that the ACT member Heather Roy pointed out that there is no definition of “competence” in this bill and she is absolutely correct because after all “competence” is supposed to be related to the quality or extent of being “competent”. We have a bill whereby the two major medical organisations have withdrawn their confidence in the Government clearly expressing that the Government is totally incompetent. I note that in the dictionary definition of “competence” the “Linguistics” part of the entry states: “A person’s subconscious knowledge of the rules governing the formation of speech in their first language.” Now I can often often contrast it with performance. We have had a fair amount of subconscious dealing from Labour Government members because this bill absolutely encompasses their subconscious Pavlovian reflex to institute as much possible complexity as they can imagine. This bill is supposed to be modelled on the Medical Practitioners Act which in a reasonably efficient way in about 110 pages has served the New Zealand public reasonably successfully. Here we have a monolith; something like 272 pages that the Labour Government of New Zealand has managed to— 
MARK PECK (NZ Labour—Invercargill) 
: 
 I move  
That the question be now put 
. 
JUDITH COLLINS (NZ National—Clevedon) 
: 
 We have several concerns about this bill and in particular I would like to take up the cudgels again on behalf of the health professionals who would like to be called “health professionals” rather than simply “health practitioners”. That is because this bill in its definitions does not actually say what professional competence is. Why should those people who have been professionals all their lives and wish to be treated as such now have their activities restricted and defined by the Minister of Health? Health practitioners such as occupational therapists might wish to be covered by this bill but those professionals who have had a long history of being part of a profession and of defining their own scopes of practice as such of actually knowing who should be practising in what areas and what areas should be practised in by their particular professions want to be treated as professionals and to be accepted as professionals. They do not want to become simply puppets of a Minister of Health who can decide for instance that perhaps obstetricians should not now be delivering babies if it does not suit her scheme of things. 
That is the sort of nonsense that this bill would allow. That must not be the case because at the end of the day the people who are the best qualified to say what their particular professions are qualified to do are the professionals themselves not the Minister of Health who might or might not decide to actually go away and take notice of the consultation process that has been put in place. 
One thing we know after years of being consulted on things is that members of the public know that the consultation process referred to in this particular part of the bill means nothing. We all know that when this particular Government goes out to consult it goes out to consult with an agenda and that agenda has nothing to do with really finding out what people think. It goes out to say: “This is what we are going to do. If you’ve got an objection now is your chance. We won’t take any notice of you but that’s too bad—we’ve said we’ve consulted.” That is what this Government does and this bill is simply another example of it. 
It is appalling that the main health professional regulators have come out and said they no longer support this bill. The reason is that they do not want to be controlled by this Minister of Health. These people who have spent years and years of their lives training and years and years working as professionals for the betterment of the community for their patients are being told that they will not decide what they are competent in. No their professional bodies will no longer be qualified to do that. This Minister of Health with her massive qualifications in the area will tell them what they can do. That is appalling. 
I would like now to look at the area of punishments for people who work outside their scopes of practice. I am concerned about situations in which some people feel they need to help others in a medical way but it is not in their areas of practice. There is a clause in the bill that says: “Well we won’t prosecute you if it’s an emergency.” But what about the situation when the medical person happens to be someone out in the backblocks somewhere in rural New Zealand—which I know is something this Government knows nothing about—and somebody needs some medical attention. It might not be considered an emergency but for the person concerned it might become an emergency if he or she is not treated. [ 
Interruption 
] In respect of that member over there Jill Pettis I recall that she used to be a nurse at one stage in her life so why is she not taking a call? Is it because she too like the Maori caucus has been silenced by this Government? Is she too being told to be quiet? Well we can all understand that can we not because who would want to see the paint being stripped off the walls by that particular member? 
That is what happens. This Government does not want to hear from the people. It does not even want to hear from its own people and it certainly does not want to hear from the health professionals. 
JANET MACKEY (NZ Labour—East Coast) 
: 
 I move  
That the question be now put 
. 
Dr LYNDA SCOTT (NZ National—Kaikoura) 
: 
 I raise a point of order Madam Chairperson. This bill is very comprehensive legislation and in my speech today I managed to talk on only one clause clause 8. Now we did not even get on to the issue of restricted activities— 
The CHAIRPERSON (Ann Hartley) 
: I am sorry but that is not a point of order. 
HEATHER ROY (ACT NZ) 
: 
 I would like to address the concerns that United Future member Judy Turner had about my Supplementary Order Paper. I put forward an amendment to omit the definition of medical practitioner in clause 5 and her concerns were that if the category of medical practitioners was pulled from this bill then the “restricted activities” provision might preclude them from doing the activities they have in their day-to-day business. That of course is not the case. The legislation has been drawn up very carefully to show that the practitioners want to remain where they are in terms of the Medical Practitioners Act and the restricted activities are determined by the Minister anyway. They are not set down at the moment. They will be determined by the Minister in line with the fact that the Minister will have huge ministerial control over the professions if this legislation is passed. So a simple exclusion would deal with that problem concerning the restricted activities list and that is not a worry at all. The Supplementary Order Paper is very simple despite the fact that it is quite lengthy. It has to be lengthy to deal with every single time the term “medical practitioner” is mentioned in the bill. 
However I want to go on to say that this legislation really flouts professionalism. All the medical professions support a clear regulatory construct for themselves and that was very evident when we heard from each of the professional groups who came along to the select committee and from the individuals who spoke at the hearings during the submission process. They all support a clear regulatory construct for the professions. “This framework”—and I cannot say it any better than the New Zealand Medical Association—“must however be flexible scaffolding that supports the professions and provides the needed structure but not an iron cage that rigidifies and stultifies professional functioning.” That is very pertinent I think. We want something that is flexible and that will allow the professions to go about their business so that they can provide the safety and protection that the public call for but not something that binds them and stymies the way in which they can practise and provide the professionalism they do at the moment. 
Regulation on its own is never going to improve the safety of professional practice. It cannot; it is impossible. The professions are there. They have their own codes of practices and codes of ethics and they work within those to provide protection and safety for the public. But regulation will do nothing for that. Regulation will not provide professionalism. The two are very different. What is required is an environment—and I talked about this previously—in which professionalism can flourish. This bill will not provide that. It seeks to provide competence by regulation. The environment in which professionals can flourish is one where health workers themselves are encouraged to learn and develop and one where they can discuss things freely amongst themselves. In particular I am referring to the quality assurance provisions that we will discuss in another part. If they are to provide that safe environment for patients they need to develop professionalism. 
The Medical Practitioners Act has provided that environment for medical practitioners since 1995 when it came into being. This legislation was supported by all bodies initially because they thought the environment that had been created by the Medical Practitioners Act was going to be subject to the legislation too. They felt that that would encourage their own professionalism and encourage their learning and development but in fact that will not be the case. It can be achieved only by the support of internal professional processes and not by increasing external regulation and control which will have the opposite effect and which will see an erosion of the high professional standards that hold our health system together today. 
PITA PARAONE (NZ First) 
: 
 I want to take a brief call given that I have a Supplementary Order Paper seeking an amendment to clause 8. The effect of clause 8 is to limit quite precisely what each registered practitioner can do. That is in stark contrast to clause 9 which imposes penalties for the loose and undefined condition of holding out by unregistered people. Clause 8 is much tighter and allows for precise definitions of the tasks of registered health practitioners who are probably a lower risk to the public because they have already qualified as health providers. Clause 9 merely prevents people from calling themselves by a particular title or holding themselves out to be registered health practitioners and does not specifically constrain the tasks they may do. There needs to be a mechanism to stop definitively an unregistered person from doing anything that lies within the scope of any registered health practitioner. Only health practitioners should be able to do things within those scopes and each will by clause 8 be limited to doing things that are safe and that they are trained to do. Clause 8 needs to be amended to exclude unregistered people from the scopes of registered health practitioners. 
Sitting suspended from 6 p.m. to 7.30 p.m. 
PITA PARAONE 
: It is understood that it will be the responsibility of each regulating authority to take action when a practitioner registered with that authority acts outside his or her scope of practice. This means that if a physiotherapist for example engages in actions that form part of medicine but are not part of physiotherapy then the Physiotherapy Board would be responsible for investigating the breach not the Medical Council. The function of the regulating authorities is to keep registered practitioners inside the set scope and not to keep others out of it. By contrast the Ministry of Health will administer clause 9. The ministry will firstly use discretion in determining whether an action constitutes holding out and secondly decide whether to take action depending on whether there is any risk of harm and depending on priorities for action and the resources available to investigate and implement action. 
Thus it seems that the bill is setting up two levels of compliance. Registered persons will be tightly controlled within a particular scope regardless of any consideration of harm to the public. Unregistered people will be subject to inherently lax controls capable of interpretation and avoidance depending on the ministry’s freedom of choice regarding harm priorities and resources at any particular time. Clause 8 as it stands provides less protection to the public than it could or should. 
PHIL HEATLEY (NZ National—Whangarei) 
: 
 I along with various colleagues and in particular Dr Lynda Scott and young Heather Roy also challenge the Minister of Health and ask her why competence is not in—[ 
Interruption 
] David Benson-Pope might wear a bright green shirt into this Chamber; I tell the Committee that that is the brightest thing about David Benson-Pope. If he could stand and take a call we would all be the better for it. It would get it out of his system. I ask the Minister whether she will stand and explain to the Committee why competence is not one of the definitions listed in this part. Heather Roy raised this point first and she should take all the credit but she raised it well over 2 hours ago. Since then the Minister has had a good feed and a rest. I want to see her rise from the chair—I am happy if someone helps her—to take a call and say why competence is not listed as one of the definitions in the bill. I challenge the Minister and lay that matter to rest. I am sure she will meet my challenge. 
I would like to focus now on clause 8 “Health practitioners must not practise outside scope of practice”. This is of concern to members on this side of the Chamber. It is quite a worry for us. I will inform members on the other side who also take an interest in this bill. This bill introduces the untried and undefined concept of scopes of practice. No one really knows what it means least of all the ministry. Goodness knows it has tried. But the ministry does not know what “scope of practice” means. It has done very little work on it. But on reading the bill and I wish the Minister and members on the other side of the Chamber would also read it clause 8 comes into effect only 1 year after these debates conclude and this bill receives the royal assent. Very little work has been done by the ministry on what the Minister terms “scope of practice”. 
We understand that that is there to govern what medical practitioners can and cannot do as if the bureaucrats know better than the profession. Scopes of practice will govern what medical practitioners can and cannot do. As I alluded to the Ministry of Health has done very little work on scopes of practice. Examples of what they might look like are unavailable to members of Parliament—not only to members of Parliament on this side of the Chamber who work so hard but also to Government members of Parliament who are supposed to be inside the tent. The details are unavailable and that is of concern to us. 
I would be interested to hear from the Minister of Health and to ask her whether she can tell us whether she believes that scopes of practice will be confirmed 1 year after the day that this bill receives the royal assent. I would appreciate it if she would answer that question for me. 
I also would like to focus members’ attention on clause 9 which I believe also comes in 1 year after this bill receives the royal assent. This clause is about certain activities that are restricted to particular health practitioners. We are concerned that by Order in Council following a recommendation from this Minister or any Minister of Health following her this bill will allow the Minister to have control over the membership of the Health Practitioners Disciplinary Tribunal. This could erode public confidence in the process. That is one area where the Minister has control but not only that she also has control over clause 9. She can restrict activities by Order in Council. Clause 9 states: “The Governor-General may from time to time by Order in Council made on the recommendation of the Minister—(a) declare an activity that constitutes or forms part of a health service to be a restricted activity;’’. 
She can control by Order in Council what a health service can and cannot do. She can also control through other means who sits on the Health Practitioners Disciplinary Tribunal. Those are just two areas where the Minister has control over the health system under this bill. 
Hon LIANNE DALZIEL (Minister of Commerce) 
: 
 I move  
That the question be now put 
. 
Dr LYNDA SCOTT (NZ National—Kaikoura) 
: 
 It is with pleasure that I take another call on Part 1 which has nine clauses and deals with some very important issues. I want to talk about something that Judy Turner brought up—that is the petition concerning Dr Monty Hornbeck. We are talking about scopes of practice and how they were debated in that petition. Dr Monty Hornbeck is an American dermatologist who had great difficulty getting registration in New Zealand and the reasons for that were multiple. One of the major problems is that the college will recognise the qualifications of people who become specialists but it will not recognise their undergraduate qualifications. 
Hon Lianne Dalziel 
: It’s existing law. 
Dr LYNDA SCOTT 
: Yes that is exactly right. Perhaps the member would like to take a bit of time to listen and we will get to the point. The statement was made that this bill will improve the whole situation. But the problem is that— 
Hon Lianne Dalziel 
: Who was the Minister who paid for immigrant doctors to get the training they need? 
Dr LYNDA SCOTT 
: The member over there continually chips away. She does not understand what she is talking about. She knows nothing about health and does not bother to listen. We have to listen to her innocuous laughter all the time but that is the way she is. 
The definition of scopes of practice came up when talking about the petition concerning Dr Monty Hornbeck. I have a friend who is a geriatrician and it was the same for him—his undergraduate qualification was not recognised. This bill is going to correct scopes of practice so that a doctor practises in a very narrow scope and that is exactly what the medical profession is concerned about—that each individual doctor will have to have an individual scope of practice in which he or she can practise. Imagine the bureaucracy! Imagine identifying every area in which each individual can work as opposed to other areas. 
If we were looking at some professional groups in terms of codes of practice there may be one broad scope. If we look at this side of the Chamber we see Dr Paul Hutchison who is an obstetrician and gynaecologist and myself who is a geriatrician. The medical profession is very diverse in its specialties. That has always occurred through qualification and development of one’s professional standards and qualification. 
The medical profession is extremely concerned about scopes of practice. I will read from what Ian Powell who is not much of a pal of the Ministers any more has to say: “Senior doctors are very disappointed that the Government has proceeded with the controversial Health Practitioners Competence Assurance Bill …”. That was said after the bill had had its second reading. “Associate Health Minister Ruth Dyson incorrectly claimed that the Bill was based on the successful Medical Practitioners Act. This is untrue and she has been badly advised. In some key features especially the untested scopes of practice the Bill is seriously inferior and risks compromising the health and safety of the public.” That person used to be a very good friend of the Minister but that is what he is saying. 
This bill should have been consulted on much more widely and should have been developed far more before this happened. We have a bill that nobody will be happy with. The invisible Minister of Health in the chair never takes a call or gets to her feet. Every time anybody rings her up for a comment the Minister is “not available for comment”. The Minister of Health has not overseen this legislation well. Her very best of friends are now saying that it is an incompetent piece of legislation and that the Minister is incompetent to have allowed it to come back into the House without trying to improve it. This bill should not have been a political bill. It should have been improved upon and it could have been. Had there been more consultation—consultation meaning that people were listened to and that their concerns were listened to—we would not be in the situation tonight where we have the doctors wanting to be totally out of this bill. They do not want a bar of it. 
It will be up to the National Government in 2 years’ time when we are in power to sort out the mess when we do the 3-year review. There will be a 3-year review and there will be an absolute mess to clean up. 
STEVE CHADWICK (NZ Labour—Rotorua) 
: 
 I move  
That the question be now put 
. 
JOHN CARTER (NZ National—Northland) 
: 
 I want to make one or two comments and ask the Minister some questions about what may happen— 
David Benson-Pope 
: Oh! 
JOHN CARTER 
: The senior Government whip may want to listen because he may pick up one or two things from some of the questions that I will ask. 
First of all I must say that after listening to this debate so far I am extremely disappointed that the Minister has not taken the opportunity at the start of each part of the debate to make some comments. It is unfortunate that she has not taken a call because members of the public have a right to know what is in the Minister’s mind. Unfortunately she sits there silently without responding and she is reading something. It is probably a Noddy book a book from Mills and Boon or something of that nature—who would know? The Minister is not prepared to stand up and defend her own legislation. Firstly that leaves the public wondering whether she as a Minister has her hands on the steering wheel and secondly it raises questions as to whether the Minister actually understands what is in the legislation. She needs to be able to assure the public that she does have an understanding of it. 
I sat through an inquiry along with Steve Chadwick and other members of the Health Committee into issues around Colleen Poutsma in particular and others who were affected by the circumstances that occurred in that case. One of the things that we found was that the Medical Council as it is—I now understand that it is to be known as the health practitioners discipline tribunal— 
Hon Lianne Dalziel 
: No. 
JOHN CARTER 
: The Minister could take a call— 
Hon Annette King 
: The member should try reading the bill. 
JOHN CARTER 
: I thank the Minister. At least we have heard an utterance from her at last. I am interested to know whether that inquiry and the findings of the select committee—which was a combined effort of people who were working to try to solve problems—have solved the problem that one of the constituents whom I represent has. I want to know whether her concerns and issues have been addressed. 
The constituent I refer to went to the medical tribunal to ask for support. It said that there was no problem or issue and found that her case had no substance. She subsequently went to the Accident Compensation Corporation and made a claim. After inquiries and investigation the corporation found that indeed there had been medical misadventure. The medical tribunal initially said that there had been none. One of the reasons for the tribunal’s finding was that the Accident Compensation Corporation itself had initially said that there was no medical misadventure. We went back to the Accident Compensation Corporation and it has since found that medical misadventure did occur. 
Hon Lianne Dalziel 
: But what for? 
JOHN CARTER 
: The Minister should just listen and I will explain that. The sad thing is that the Minister of Health is not listening. One Minister is listening but she is not the Minister whom I would like to listen. 
We then went back to the medical tribunal given that the Accident Compensation Corporation had found there was medical misadventure to ask it whether it would go back and reopen the case but it cannot. 
Hon Lianne Dalziel 
: But what for—medical misadventure? 
JOHN CARTER 
: I do not profess to be an expert. I am raising the issue and I hope the Minister may take a call to explain whether this legislation will help my constituent. If the Minister needs more details then I can get more details on the case. I understand that the law as it stands—or as it stood; I do not know whether this bill will fix it—means that the tribunal cannot go back and review its finding with regard to my constituent. I would like to know whether this legislation will change that. Where the circumstances of a case change where things alter and the Accident Compensation Corporation subsequently finds there was medical misadventure I want to know whether there is an opportunity for a constituent to take a case back to the tribunal to be reviewed. That is one of the things that we found from the inquiry was needed. One of the recommendations we made was that the medical tribunal the Medical Council or whatever it may be called should be able to go back and revisit those cases. 
I see in the bill reference to the Health Practitioners Disciplinary Tribunal but obviously that is not the right clause. Can the Minister tell us whether those circumstances will change so that my constituent will have an opportunity to have her case reheard? Sadly the Minister sits there looking everywhere else but at me. She has not even taken a call. 
Hon Annette King 
: I was in Australia and the member knows it. 
JOHN CARTER 
: That may be so. Whether or not the Minister was here then she is certainly here now and it would be useful if she took the opportunity to seek the call and make the case. 
DAVID BENSON-POPE (Senior Whip—NZ Labour) 
: 
 I move  
That the question be now put 
. 
A party vote was called for on the question  
That the question be now put. 
Ayes 69 
Labour 52; Green Party 9; United Future 8. 
Noes 48 
New Zealand National 27; New Zealand First 13; ACT New Zealand 8. 
Motion agreed to. 
The question was put that the following amendment in the name of Dr Paul Hutchison to clause 3(1) be agreed to: 
to omit from subclause (1) the word “protect” and substitute the words “to assist in protecting”. 
A party vote was called for on the question  
That the amendment be agreed to. 
Ayes 48 
New Zealand National 27; New Zealand First 13; ACT New Zealand 8. 
Noes 69 
Labour 52; Green Party 9; United Future 8. 
Amendment not agreed to. 
The question was put that the amendment set out on Supplementary Order Paper 122 in the name of Pita Paraone to clause 3(2)(b) be agreed to. 
A party vote was called for on the question  
That the amendment be agreed to. 
Ayes 57 
New Zealand National 27; New Zealand First 13; ACT New Zealand 8; Green Party 9. 
Noes 60 
Labour 52; United Future 8. 
Amendment not agreed to. 
The question was put that the following amendment in the name of Dr Paul Hutchison to clause 3(2) be agreed to: 
to amend subclause (2) by adding the following paragraph: 
(f)the recognition of professional self-regulation as the basis of health practice in New Zealand. 
A party vote was called for on the question  
That the amendment be agreed to. 
Ayes 48 
New Zealand National 27; New Zealand First 13; ACT New Zealand 8. 
Noes 69 
Labour 52; Green Party 9; United Future 8. 
Amendment not agreed to. 
The question was put that the amendment set out on Supplementary Order Paper 111 in the name of Heather Roy to the definition of “medical practitioner” in clause 5(1) be agreed to: 
A party vote was called for on the question  
That the amendment be agreed to. 
Ayes 48 
New Zealand National 27; New Zealand First 13; ACT New Zealand 8. 
Noes 69 
Labour 52; Green Party 9; United Future 8. 
Amendment not agreed to. 
The question was put that the amendment set out on Supplementary Order Paper 115 in the name of Pita Paraone to the definition of “professional peer” in clause 5(1) be agreed to. 
A party vote was called for on the question  
That the amendment be agreed to. 
Ayes 48 
New Zealand National 27; New Zealand First 13; ACT New Zealand 8. 
Noes 69 
Labour 52; Green Party 9; United Future 8. 
Amendment not agreed to. 
The question was put that the amendment set out on Supplementary Order Paper 122 in the name of Pita Paraone to omit paragraph (b) of the definition of “scope of practice” in clause 5(1) be agreed to. 
A party vote was called for on the question  
That the amendment be agreed to. 
Ayes 48 
New Zealand National 27; New Zealand First 13; ACT New Zealand 8. 
Noes 69 
Labour 52; Green Party 9; United Future 8. 
Amendment not agreed to. 
The question was put that the amendment set out on Supplementary Order Paper 115 in the name of Pita Paraone to clause 8(2) be agreed to. 
A party vote was called for on the question  
That the amendment be agreed to. 
Ayes 48 
New Zealand National 27; New Zealand First 13; ACT New Zealand 8. 
Noes 69 
Labour 52; Green Party 9; United Future 8. 
Amendment not agreed to. 
The question was put that the amendments set out on Supplementary Order Paper 118 in the name of the Hon Annette King to Part 1 be agreed to. 
A party vote was called for on the question  
That the amendments be agreed to. 
Ayes 69 
Labour 52; Green Party 9; United Future 8. 
Noes 48 
New Zealand National 27; New Zealand First 13; ACT New Zealand 8. 
Amendments agreed to. 
A party vote was called for on the question  
That Part 1 as amended be agreed to. 
Ayes 69 
Labour 52; Green Party 9; United Future 8. 
Noes 48 
New Zealand National 27; New Zealand First 13; ACT New Zealand 8. 
Part 1 as amended agreed to. 
Part 2 Registration of and practising certificates for health practitioners 
Hon ANNETTE KING (Minister of Health) 
: 
 It has been very interesting to listen to the debate so far on the short title and Part 1 to listen to the Opposition’s speeches and to realise that although its members sat on a select committee and heard evidence and although they are supposed to have an understanding of the bill there is one large collective amount of ignorance being spoken on the bill in this House today. 
I would like to start with some of the issues that have been raised. This bill is for the safety of the public of New Zealand. Is it not interesting that throughout the debate we have heard so far what has been spoken has been about the health professionals? Certainly they are important but this bill is not only about health professionals it is also about the safety of the public. We have had these statutes for many years in New Zealand and they were put in place for the safety of the public of New Zealand. That is why every profession is not registered under such statutes. Not every profession causes harm to the public in the way that the professions we register do so their statutes were put in place for the safety of the public. It would be very nice to hear some debate about the public rather than it always being about the health professions. I would like to put that on record. This is about the public’s safety. It is how we ensure that our health professionals are competent to provide the health services that people need that they are registered properly that they are properly monitored and that the public is safe. 
One of the issues that has come up over and over tonight is scopes of practice and this particular part mentions scopes of practice. It is very interesting that members of the Opposition do not know what scopes of practice are but the Medical Council whose job it is to handle scopes of practice has said that it is very aware of what they are. I thought that Judy Turner made an extremely good contribution when she set out what came out of Nick Smith’s petition and Ken Shirley’s bill. Back in 1999 they were talking about scopes of practice. If we ask the Medical Council whether it knows what scopes of practice are not only does it know what they are it has gone through most of the specialities and asked what areas need new scopes of practice developed changed more work done or already done. 
So let us run down the scopes of practice that already exist. Breast medicine for example does not need any change to its scope of practice; it is already defined. Accident medicine does not need change; it is already defined. If one goes through the whole list one sees that the Medical Council knows exactly what a scope of practice is and so do most other people. But Opposition members have chosen to make it sound like something foreign something new and something scary. That is a totally erroneous portrayal of what scopes of practice are. 
I know that the opposition to this bill particularly from ACT and National has nothing to do with the quality of this bill. It is about political opposition for the sake of political opposition; there is no other reason. I know for example that Ken Shirley’s bill which came before this House wanted to put in place far more draconian things than this bill does. That bill wanted to ensure that doctors were registered under the New Zealand Qualifications Authority. That was not done but Mr Shirley had the very good idea that we ought to ensure that medical practitioners can practise within their ability. They were the overseas doctors and that is why Mr Shirley brought that bill to this House in the first place. The back-off from that bill and ACT’s opposition to this one is very interesting indeed. 
I want to mention a couple of other things. For example much has been made tonight about the New Zealand Association of Optometrists pulling support for this bill. I assure members that the chair of that association Andrew Sangster has told me that that is not correct. The association was worried about parts of the bill and raised those issues but it did not pull support from this bill. It supports it. 
There are other issues that I think are worth mentioning as well. One of the things that Lynda Scott talked about was that in the old days the way to decide whether a person was capable of practising was for him or her to sit an exam. Well I have always remembered something that a health professional told me. He said that a qualification received 20 years ago was a qualification received 20 years ago—it does not make one competent to practise. The whole basis of this bill is to ensure that health professionals are competent to practise. It is based on the Medical Practitioners Act and I do not think that members opposite know that the basis of that Act is the competence to practise. 
The issue of who decides that was raised. The health professionals’ own registration bodies decide whether they are competent to practise—not the Government not the Minister but their own bodies. The Opposition has tried today to say that it is the Minister who decides whether health professionals are competent but their own registration bodies—their own councils—decide whether they are competent. Georgina te Heuheu for example raised the issue of whether there is protection for women mistreated by some of our health professionals. This bill ensures that the bodies that decide whether health professionals are competent to practise ensure that they are competent to practise—not because they received a qualification 20 years ago. They are assessed and checked to ensure that they are allowed to perform whatever they are registered to perform on patients. 
Rather than peddle misinformation it is really important that members opposite tell the truth about this bill. It is based on the Medical Practitioners Act. Who said that? It was not the Minister but the Medical Council which has to work with the Medical Practitioners Act. It was not members of the Opposition but the council that works with it every day that said that this bill was overwhelmingly the same as the Medical Practitioners Act. This bill has been widely welcomed by many health professionals. Nurses for example have been waiting since 1988 for their Act to be updated. A whole decade went by and nothing was done for their statute. 
What I think is really important about this legislation is that so many health professionals bought into the concept of one bill to cover all health professionals. Why would one not do that? After all doctors are not better than nurses. Nurses are not better than optometrists. Optometrists are not better than podiatrists. Podiatrists are not better than physiotherapists. It is all about health professionals who provide a service to the public. Why should there not be a common bill that covers them all? Some members here tonight would like to make the bill elitist. It is not elitist; it is a bill to ensure the safety of the public of New Zealand—a comprehensive bill that includes most of the elements of the Medical Practitioners Act. 
The bill also addresses some of John Carter’s concerns—he just happened to be looking at the wrong part of the bill. If he looks at Part 8 “Amendments to Health and Disability Commissioner Act 1994” he will see that the things he was interested in are addressed. Many of the issues raised by the public have been addressed in this bill. 
I would like to thank the Ministry of Health for 3 years of hard work. It has done a superb job not only of getting the bill together but working with so many health professional groups— 
Dr Paul Hutchison 
: Tolerating you! 
Hon ANNETTE KING 
: Yes tolerating me and fortunately not having to tolerate Paul Hutchison. The ministry wakes up every day and thanks God that it does not have to tolerate him. 
I would like to say to the members of the Committee who have made a constructive contribution to this bill that they will be proud of it in future. It is visionary bill and will lead the way for occupational statutes for years to come. 
Dr LYNDA SCOTT (NZ National—Kaikoura) 
: 
 I am so pleased that the Minister finally got to her feet and took a call. What a load of rhetoric that was! I have never heard anything like it. I tell the Minister that the devil is in the detail and the devil will come back to bite her on this one. The detail is where the Minister will be tripped up. This bill is too big. The Minister has tried to put too much into it. When the Minister talks about nurses saying that no one is better than anybody else I think she demonstrates that she has a chip on her shoulder. I think she demonstrates a Freudian slip when she keeps saying that no one is better than anybody else. I think she has an underlying concern about doctors. She thinks that they are better so one has to bring them down to all being one and the same. 
As a medical professional I can tell the Committee that nobody quite knows what it is like to be a doctor and to carry the final burden—and one does. The doctor carries the final burden of life and death. I do not think that anyone else in this Committee apart from Paul Hutchison actually knows what that is like. It is actually the doctors who make the final decisions. I have been a nurse and a doctor and I know how much more of a burden one carries as a doctor. The extra training that a doctor does is all about the ability to diagnose. So when the doctors say that they do not want a bar of this bill and that they were very happy with the Medical Practitioners Act I think the public—and the Minister was talking about the public—will take some notice of what the doctors say. Doctors are the ones on the front line. They are the ones who take the rap. They are the ones whose professional competence has to be assured. 
I agree that the aim of the bill is very worthy. Of course we should be trying to protect the public. Of course we should be making sure that every health practitioner who engages in any sort of practice that could harm an individual should definitely be keeping his or her competence up to speed. Yes if a health professional was registered 20 years ago his or her credentials should be kept updated. The Medical Practitioners Act corrected a lot of the problems of the 30 years before. It was working really well. Other health practitioners thought that this bill was based on that Act. However they have found that the Minister has massive powers under the bill and there is concern about new concepts in Part 2 and about scopes of practice and how they will work. The public does have some concerns. 
The Medical Council says that it knows what scopes are. If nothing is to change from the Medical Practitioners Act how would that help Monty Hornbeck? It would not. It could help him only if the Government were to say that there would be very individualised scopes of practice for individual doctors as opposed to broad scopes. That is the only way it could help so I would like the Minister to explain that. Ken Shirley’s bill was thrown out. They did not like it. Labour voted it down. Now the Government says that there were a whole lot of good things in it. Some things in that bill were trying to break down the patch protection that happens. We know that that happens. Medical specialists have said that medical patch protection does occur. However that can be changed by the way doctors are registered through a committee. In Britain the Calman Committee is used for that. It has a committee of people that decides. 
Hon Lianne Dalziel 
: Nine long years. 
Dr LYNDA SCOTT 
: The member has been in for 4 long years and health care is an absolute mess. This Government has a bill that is an absolute mess. It will not protect the public. The Medical Practitioners Act was legislation that did not have political spin around it. Everybody agreed with it. It did an extremely good job to register doctors and have credentialing. That member who is continually screaming across the Chamber should go back to her knitting and reading because that is all she is good for. 
BARBARA STEWART (NZ First) 
: 
 On behalf of New Zealand First I am pleased to speak to Part 2 of the Health Practitioners Competence Assurance Bill. No doubt this very important debate will affect health practitioners in the medical profession and the public for the next 15 to 20 years. In particular I want to focus on clause 15 “Fitness for registration”. This clause is a lawyer’s dream! New Zealand First will not be supporting it. 
All members of the House would agree that our health professionals have to be of the highest calibre. We want New Zealanders to have the best possible health treatment available. However clause 15 will present some large challenges for the employing authorities of the many people who are covered by this legislation. New Zealand First believes that further definitive work is required on that clause. It makes really broad sweeping statements that will be difficult to implement and define and therefore difficult to enforce. 
Clause 15(a) states that applicants for registration must be able to “communicate effectively for the purposes of practising”. But nowhere in this hefty document are there guidelines as to what “communicate effectively” means. That term is really subjective and everyone can interpret it differently. Those guidelines are totally lacking from this document. I realise that members opposite will have a totally different idea about communicating effectively. It will be quite different from the view of people on this side of the Chamber. 
Clause 15(a) will also require a really big decision to be made by the responsible employing authority and of course by the doctor nurse or other health practitioners in different areas. The big challenge will arise when an applicant disagrees with a ruling. How can that person appeal a ruling? Where are the definitions in this bill? They are totally lacking. 
Clause 15(b) states that prior to registration the applicant must satisfy the employing authority of his or her ability to communicate and to comprehend English. What does that tell us? We know that at present some of our health professionals do not meet that standard at all. That is something we hear quite constantly from the public of New Zealand. They just want to take their children to medical centres to get them well or to get well themselves. Does that clause tell us that New Zealanders can expect to see a whole heap more health professionals for whom English is a second language? We do not object to that if those people are competent because we do want our health care. But we must ask what has happened to our New Zealand doctors for whom English is a first language. They must still be going overseas. 
Clause 15(e) is also fraught with big challenges. We can really admire the sentiment behind the phrases used in that clause as there is no doubt that the health and safety of New Zealanders are being looked after. I do not think that anyone coming to this country would tell any employing authority that he or she is the subject of disciplinary hearings or proceedings. Nobody who is desperate for a job ever tells an employer of any shortcomings. 
Judith Collins 
: Mr Zaoui would. 
BARBARA STEWART 
: I doubt it. He did not say anything. We know where he is. We also know that a fair share of New Zealanders have left our shores and are practising overseas—after a disciplinary proceeding. It has often taken a long long time before some of them have been caught. In a recent case a doctor went from New Zealand to Australia to practise plastic surgery because he was not allowed to practise in New Zealand. No doubt there are health professionals practising in New Zealand who should not be practising. 
We all know that references can be easily fudged. How on earth will the authorities check up on some of those references? If one writes one’s own reference of course it will be glowing. So the various authorities will really have to check out that aspect thoroughly. How will they monitor the provisions of clause 15? In theory it all sounds really good but in reality the lack of clarity and definition will be the total downfall of that clause. I know that Mr Benson-Pope will find that difficult to believe. 
Dr PAUL HUTCHISON (NZ National—Port Waikato) 
: 
 I thank the chair for the opportunity to speak on Part 2 of this very important Health Practitioners Competence Assurance Bill. A few minutes ago we were treated to an unmitigated conglomeration of verbosity from the Minister of Health signifying absolutely nothing. She tried to remind this Committee about the purpose of the legislation and that is to protect the public and for once I can agree with her on something. However I cannot agree with her explanation of why those who are responsible for the ultimate health of the public—the professionals at the foot of the cliff—have expressed an absolute lack of confidence in her bill. 
It is remarkable when we see the media statement made by Ian Powell with the headline: “Senior doctors very disappointed with Government action over flawed health bill”. The Minister must take a call to address seriously what Ian Powell is saying. He says: “Associate Health Minister Ruth Dyson incorrectly claimed that the Bill was based on the successful Medical Practitioners Act. This is untrue and she has been badly advised. In some key features especially the untested scopes of practice the Bill is seriously inferior and risks compromising the health and safety of the public.” That statement comes from Ian Powell on scopes of practice 
. 
 That issue is absolutely integral to Part 2—in fact integral to the whole bill. [ 
Interruption 
] Those comments in reply to the Minister are from someone whom she has tried to work with but who at the end of the day has rejected her process. There is no doubt that the medical profession would have loved to see this bill come in with support right across the board. It is indeed an omnibus bill. We on the National side were very keen to see the problem solved. 
This is what the New Zealand Medical Association said about scopes of practice: “Scopes of practice already exist within the profession of medicine and other professions but they have never before been required by legislation to be codified as this Bill does. The introduction of codified scopes of practice is likely to have significant long-term implications but neither the intentions behind the introduction of scopes of practice nor their potential outcomes have been properly debated. Indeed an Official Information request of the Ministry of Health in respect of discussion papers on the issue of scopes of practice revealed that no serious internal discussion or debate has taken place.” It is an indictment on the Labour Government and on the Minister that she has failed to consult properly on the absolutely vital area of scopes of practice. 
I go on to the nurses’ submission which states: “Specific recommendations were made on the basis of … principles and previous policy. An issue that is fundamental to NZNO”—the New Zealand Nurses Organisation which has 32000 members—“is the need for increased consultation on specific clauses of this Bill. It is our contention the Bill in its present form will not develop the culture that is required to prevent the incidence of errors or that it is fair for health professionals and health workers.” The first of its major recommendations is: “The inclusion of consultation with professional bodies before scopes of practice are introduced into legislation”. The Minister might say she has achieved a victory by bringing the nurses on board but what are they interested in? They are interested in increasing their scopes of practice and they are particularly looking at the area of nurse anaesthetist practitioners. General practice anaesthetists who were well qualified were phased out only 4 to 5 years ago because of the increasing standards required by the Royal Australian and New Zealand College of Anaesthetists. 
SUE KEDGLEY (Green) 
: 
 I would like to start by responding to some issues that the Minister of Health raised. She said we should all be focusing on putting in place a system for public safety and on ensuring that we have a system that New Zealand consumers can trust. I think we all agree that consumers in this country are disillusioned with the health system and the complaints system as a result of the endless stream of inquiries—the Gisborne cervical cancer inquiry the Parry inquiry and so on. So we have a great deal of work to do to restore consumer confidence in our health system and in the complaints procedures surrounding the health professions. There are some very serious problems that we have heard about—in particular in the Parry inquiry. We hope that some of the issues covered in this bill will go a long way to address those issues and enhance consumer confidence in our health system. 
But I cannot resist responding to that the Minister’s point that the whole legislation should be based on public safety. Well if that is the case if this legislation is consumer based if its objective is to protect the public from harm then acupuncturists should be included in it. The Minister said that public safety is the sole thing we should be looking at. I have already pointed out that acupuncture involves poking needles into people and if those needles are not sterilised or if they are poked into the wrong place there is a serious risk of harm to the public. So why are acupuncturists not included in this bill? 
The Minister said that nurses have been waiting since 1988 for their statute. Well acupuncturists have been waiting for two decades for their statute. They have been traipsing up to this Parliament and requesting that they be covered by statute for decades. They have written requesting legislation so why are they not included in this bill? One of the major reasons they want to be covered by statute is their concern about what could happen to New Zealanders and to the reputation of their profession if irresponsible acupuncturists who are not competent set themselves up in practice and poke needles into people. It would be a disaster. The acupuncturists recognise that risk and that is why they have put such passionate submissions to us to be included in this bill. 
So why are osteopaths included but acupuncturists are not? It is simply for one reason and one reason alone: Labour made a political commitment for reasons best known to itself to osteopaths in the 1999 election but it did not make such a commitment to acupuncturists. Let us at least have a level playing field. I am quite happy that Labour made that political commitment that promise to include osteopaths and that they are included in this bill but if they have a case to be included acupuncturists have an even stronger case. It is extraordinary that the Government is refusing for no good reasons that have been advanced to include acupuncturists. Acupuncturists are doing their bit they are undergoing consultation they are doing all the things that are supposedly required of a group if it is to come under this bill yet the door is firmly shut on them whereas osteopaths are included. If this legislation was as the Minister said genuine consumer-based legislation whose overriding objective was public safety then acupuncturists would be included and we would not have this seemingly political decision not to include them but to include only osteopaths. 
This part deals with scopes of practice. The other problem is that the omission of acupuncturists could cause very serious anomalies in the future because if acupuncture is made a restricted activity—as it ought to be if we are concerned about public safety—then only medical and physio acupuncturists will be able to practise. 
HEATHER ROY (ACT NZ) 
: 
 It was hard work getting the Minister of Health to her feet but eventually she did get there and she made some quite interesting points. What she called for was some truth some facts in the Opposition debate. In fact that is what we have been dealing with all along. I suggest that she tries listening to us and listening to the professions. They would like to have been consulted a lot more than they were. They felt they were not listened to enough. The Health Practitioners Competence Assurance Bill incorporates a significant shift in the approach to registration of health practitioners that has not been debated and that did not originate out of a process of engagement between the Ministry of Health and the professions. 
The Minister also mentioned the word “competent”. I lost count of how many times she used that word and it was telling how many times she did use it. I ask the Minister to stand and define the word “competent”. We have the word “Competence” in the title. She said “competent” dozens of times but did she tell us what she meant? No. What exactly are people to measure themselves against? We have been told time and time again by officials that the words “competence” or “competent” are too hard to define. What exactly are the health professionals meant to measure themselves against? How are health professionals supposed to be disciplined when we cannot even determine the level of competence that they are supposed to achieve? 
If the Minister were really concerned about the safety of the public she would have spent more time listening to the concerns of the professional bodies. After all we do have patients and we want public safety. The National Party speakers have said at length that patient safety is paramount and I have said the same thing in some of my previous speeches. We want protection for the safety of the public. But who provides care? Who actually provides a safe environment for patients? It is the health professionals. In order to operate effectively they need to have an environment in which it is safe for them to work so that they can provide the best possible treatment for their patients. But this Government has a very anti-professional attitude which is becoming more and more apparent as this debate goes on. It is an anti-professional attitude from an authoritarian bossy “we know best” Government. We are seeing proof of that in this legislation. 
We have heard about scopes of practice already but it is worth mentioning them again. The scope of practice concept is a new and untested concept that has been described as cutting edge; apparently we are going to be world leaders in scopes of practice. The only place in the world where scopes of practice have been previously trialled is British Columbia. The Health Committee spent a bit of time looking at where this concept has been tried and British Columbia is the only place in the world where scopes of practice have been tried before. Guess what? It has canned them because many people felt they were a failure. So what are we doing in New Zealand? We are adopting them and putting them into place. There was much criticism in the submissions that the scopes of practice were ill defined and ill tested. We heard that time and time again from many submitters. 
If we look at the scopes of practice in a practical sense we see that the equivalent provisions in the Medical Practitioners Act are the specifications for the various types of registration of vocational branches which incidentally work very well. Although there is a requirement for consultation the decision rests with the politically appointed authority. When we come to scopes of practice under this bill we are told that they will be enabling and broad but when we look carefully at the legislation we find that certainly the professional bodies are not reading them as being broad at all; they are concerned that they are actually very narrow. If we look at clauses 20(1A) and 20(1B) of the redrafted bill we see that they are certainly very suggestive of narrow scopes of practice. 
I think we heard from just about all the professional bodies involved with this bill and the smaller bodies were not so concerned about scopes of practice. The occupational therapists stick in my mind because we had quite a long discussion about what they would do when it came to instituting scopes of practice. They had already done quite a lot of work and had decided that they would have only one scope of practice. So there will be very little change for them. They will carry on pretty much as they are now and the work they do now will just be defined as one scope. 
I raise a point of order Mr Chairperson. I wonder whether conversations that are not about the bill and are happening quite close to me could be carried out in the lobby. 
The CHAIRPERSON (Hon Clem Simich) 
: The member is quite right. Conversations should be held outside the Chamber. 
DIANNE YATES (NZ Labour—Hamilton East) 
: 
 I move  
That the question be now put 
. 
JUDITH COLLINS (NZ National—Clevedon) 
: 
 This bill on which the Opposition has spoken so well tonight in its usual united way is a massive bill and it will be of huge cost to the public. There is no reason to regulate health professionals other than for public safety. It is not all right to regulate health professionals in order to create some sort of patch protection and it is not all right to regulate health professionals to destroy a profession as has been done to the general practice profession by this Government. In this particular part I am concerned that the fitness for registration and scopes of practice will bring an incredible amount of cost not only to the professions but also to the public as a natural flow-on effect. 
As a member of the Health Committee I sat through the many and varied submissions on this bill and one of the things that came out quite strongly was that some of the smaller professional groups were very much concerned about the cost of this bill to them and their professions and occupations. Not all health professionals are highly paid people and that is a point that needs to be brought home. We can say almost without exception that the more unionised the workforce the poorer paid it will be because that is a natural consequence of the lowest common denominator on which unions exist which is what they promote. 
One of the concerns in this part is that in the provisions dealing with the fitness for registration and the scopes of practice there is a tremendous amount of over-regulation that will severely impact on the ability of some health professionals to get registered and to operate within their chosen professions. Quite a lot of those professions comprise women who are often mothers working on a part-time basis and that is particularly the case for those who work with schools. They are people who are often getting no more than say $25000 or $30000 a year and they will be regulated as though they are neurosurgeons which is just ridiculous. That is the sort of silly thing that is in this part. 
I take up the point made by my colleague in New Zealand First in relation to clause 15 which deals with the ability to communicate in and comprehend English. I am concerned to know how the Race Relations Conciliator Joris de Bres who called my ancestors “the Taliban” will interpret that. I cannot help but think that he will come out and say that this sort of provision is discriminatory because it is—it is discriminatory against people who do not speak and comprehend English. That might be considered a good thing by some people in this Committee but I have to wonder about some of the practitioners of Chinese medicines who deal with people who are speakers of the many dialects of China. I wonder why it is that we will require them to be able to communicate in and comprehend English if they are practising solely in their own field among people who understand them. 
Dr Lynda Scott 
: Will that be a scope of practice? 
JUDITH COLLINS 
: As Dr Lynda Scott correctly asks: will that be a scope of practice? We will have to find out from the Minister. That is one of the awful things about this part—it does not say what those scopes of practice are going to be. We are being told by this Minister and this nanny State that we simply have to wait and trust the Minister which is a bad bad thing. We are being told that we cannot trust the health professionals but we can trust the Minister. Well I think not—I would rather trust the health professionals any day because one of the surest ways to find incompetence in a profession or its members is to over-regulate it to the point of death. 
NANAIA MAHUTA (NZ Labour—Tainui) 
: 
 I move  
That the question be now put 
. 
Hon GEORGINA TE HEUHEU (NZ National) 
: 
 In the earlier debates on the Health Practitioners Competence Assurance Bill Opposition members certainly showed that they knew exactly what this legislation is about: public safety. It was neither necessary nor appropriate for the Minister to give us a tirade on what the bill is all about. We are acutely conscious of what it is about and that is why we express the concerns we do. As far as I am concerned I have tried to express concerns that have been given both to the select committee and to me as a member of Parliament. They are not concerns I have made up out of my own head although as a woman I am certainly worried about any potential for incompetence on the part of health practitioners given the history behind this bill. We are acutely aware that this bill is about public safety. We are also very aware that public safety cannot be assured without the assurance of competence of health professionals. 
Although Part 2 sets out the responsibilities of each authority to carry out the registration of professionals the issue of practising certificates and so on in my view the part does not contain anything to assure the public that henceforth all those who practise in the health sector can be deemed to be competent. I say that because there is no definition of competence. Perhaps there is a very good reason for that. Is it that competence will be different across each of the scopes of practice? Or is it that people within the profession have an idea of what competence is anyway? I would like the Minister in the chair Annette King to talk to that issue. She was good enough to answer my issues from previous speeches. Maybe she will give some reassurance on the matter. In the end regardless of whether we in this Chamber are confident about this legislation it is the public that needs to feel confident that its health and safety is assured by what we do in this Chamber. 
It is easy enough for the Minister to stand up and quote the Medical Council of New Zealand but we on this side of the Chamber can do the same. When I read in a briefing note of the Association of Salaried Medical Specialists last week that the issue of scopes of practice remains unresolved and that it particularly has a concern that the intention for broad scopes of practice is watered down by other wording implying narrower personal scopes I want an explanation from the Minister as to what she thinks of the association’s response. Is it right or wrong? Only she knows because this is her bill and she is promoting it as the right thing to do. Therefore we look to her for an answer. The issue of what characterises competence and what it is made up of remains unresolved. The issue of scopes of practice is clearly still a significant unresolved issue. 
My honourable colleague Dr Paul Hutchison referred to the Medical Council making comments about the fact that no work has been done on either the potential or the outcomes of scopes of practice. That is appalling and the issues we raised and the points we made in the debates on the title and Part 1 remain appropriate and legitimate. The issue of scopes of practice notwithstanding the Minister’s rhetoric still remains unresolved untried and untested. The public seems to be the guinea pig here. I do not know how that reconciles with us trying to reassure the public of its safety but an explanation from one of the bodies concerned is not sufficient. 
JILL PETTIS (Junior Whip—NZ Labour) 
: 
 I move  
That the question be now put 
. 
PANSY WONG (NZ National) 
: 
 Mr Chairman welcome to the Chair. The Committee is honoured and privileged to have such a fair and objective Chair. 
I raise a very serious issue about the Health Practitioners Competence Assurance Bill and I think the Minister in the chair Annette King should take a call on it. Clause 19(2) states: “If the scope of practice that an authority proposes to authorise for an applicant differs from that indicated by the applicant under section 16(2)(b)(i) … the authority must inform the applicant”. The public would be very very concerned to learn that although a health professional has armed himself or herself with the information and the qualification to be registered under clause 16 under a certain scope of practice we are now told that the authority can actually decide that that applicant might have to be admitted under a different scope of practice. 
I hope the Minister will take a call and answer that because I get very worried. First of all we do not know what the details of the scope of practice are and I have a horrible feeling that as an ordinary layperson if I turn up to see a heart specialist I would have to ask that specialist whether he or she had been ordered to practise as a heart specialist by the authority or whether he or she had originally applied under a different scope of practice. I thought a scope of practice was quite specific to that particular skill. A person applies to be registered and admitted under that scope of practice and the factor that should be taken into consideration is competence. If a heart surgeon applies under a scope of practice to practise as a heart surgeon the authority should only be able to decide whether that person is qualified or not qualified. 
I would be horrified if the public thought that the authority could say that it did not believe that that practitioner should register under the scope of practice of heart surgery but it would recommend or authorise that practitioner to register under the scope of practice of another specialty. To me it is incredible to think that the health and safety of the public is the foundation of this legislation yet this particular clause provides as I read it that when a health professional knowing his or her own competence goes to register under a specific scope of practice he or she can be ordered by the authority to register under another scope of practice. What Mickey Mouse legislation this is! I thought that this was serious business concerning people’s health. I would hate to think that if I turned up to see a heart specialist the specialist would tell me: “My dear patient I was originally wanting to be an ear and nose specialist but I was ordered by the authority to register under a different scope of practice.” It is absurd but that is exactly what clause 19(2) provides for as I read it. 
The Minister should take a call and explain to us why that clause stating that the authority can authorise that an applicant who applies for a certain scope of practice could be registered under another scope of practice is included. We really want to know the answer. I am getting very anxious. If I turn up to see a specific health professional I will not be confident that registering under that scope of practice was that specialist’s original intention. The Minister should stand up and tell us why the scopes of practice have so much flexibility as to allow the authority to make those judgments. 
DAVID BENSON-POPE (Senior Whip—NZ Labour) 
: 
 I move  
That the question be now put 
. 
A party vote was called for on the question  
That the question be now put. 
Ayes 69 
Labour 52; Green Party 9; United Future 8. 
Noes 48 
New Zealand National 27; New Zealand First 13; ACT New Zealand 8. 
Motion agreed to. 
The question was put that the amendment set out on Supplementary Order Paper 122 in the name of Pita Paraone to clause 12 be agreed to. 
A party vote was called for on the question  
That the amendment be agreed to 
. 
Ayes 48 
New Zealand National 27; New Zealand First 13; ACT New Zealand 8. 
Noes 69 
Labour 52; Green Party 9; United Future 8. 
Amendment not agreed to. 
The question was put that the amendment set out on Supplementary Order Paper 122 in the name of Pita Paraone to clause 16(2)(b)(i) be agreed to. 
A party vote was called for on the question  
That the amendment be agreed to 
. 
Ayes 48 
New Zealand National 27; New Zealand First 13; ACT New Zealand 8. 
Noes 69 
Labour 52; Green Party 9; United Future 8. 
Amendment not agreed to. 
The question was put that the amendments set out on Supplementary Order Paper 118 in the name of the Hon Annette King to Part 2 be agreed to. 
A party vote was called for on the question  
That the amendments be agreed to. 
Ayes 60 
Labour 52; United Future 8. 
Noes 57 
New Zealand National 27; New Zealand First 13; ACT New Zealand 8; Green Party 9. 
Amendments agreed to. 
A party vote was called for on the question  
That Part 2 as amended be agreed to 
. 
Ayes 69 
Labour 52; Green Party 9; United Future 8. 
Noes 48 
New Zealand National 27; New Zealand First 13; ACT New Zealand 8. 
Part 2 as amended agreed to. 
Part 3 Competence fitness to practise and quality assurance 
Dr LYNDA SCOTT (NZ National—Kaikoura) 
: 
 As the Chairperson has just said there are 27 clauses in Part 3 and I certainly hope we are going to be able to debate many of those clauses. Part 3 goes to the heart of trying to look at protection for the public which is what this bill is supposed to be about. This part does have some significant issues in it and I have a Supplementary Order Paper that deals with some of the quality assurance provisions. Before I get on to quality assurance I just want to say that this particular part of the bill is about competence fitness to practise and quality assurance. 
As we have heard previously this bill was supposed to be based on the 1995 Medical Practitioners Act. Under that Act quality assurance improved markedly. I was working as a doctor in a hospital in the 1990s and was very pleased to become involved with quality assurance programmes. I am sure if Steve Chadwick was here she would also be telling members that she became very involved in the hospital where she worked in developing quality assurance programmes. These programmes are all about looking at protection for the public. Quality assurance is about seeking to improve one’s practice. One does that by looking at case studies looking at near misses and looking at when the system is not quite working. It involves getting nurses doctors and other health professionals together and doing a case review on a case by case basis looking at those cases that did not go as well as one expected—whether that was because of the physical problems that the patient had or whether it was sometimes because of iatrogenic causes. Iatrogenic causes occur when the procedures or the medication that a person receives in hospital makes that person ill and that happens to about 20 to 30 percent of patients who go into hospital. When patients are severely ill sometimes the things one has to do to try to make them well can at times have unforeseen consequences—for example hospital-acquired infections. Procedures can go wrong and it is essential that the doctors and nurses in our hospitals can engage in quality assurance procedures. 
There was one isolated incident back in the 1990s when Waitemata Health refused to give some information because it was part of a quality assurance programme. That was in the Malcolm Beggs and Lachlan Jones case. A system cannot be damned by one error and that was part of the problem that occurred in this legislation under clauses 51 52 53 and 54. Changes have been made to clause 52. The Health Committee worked very well to try to get those changes so that there is the same sort of plan as provided under the 1995 Act to allow quality assurance procedures to happen in our hospitals. It would ensure that people engaging in those procedures do not feel that that information can then be used in a medical practitioners disciplinary tribunal or for accident compensation. 
One does not want to deny information but there are all the other avenues that are available. There is accident compensation to look at medical mishap and medical misadventure and there is the Health and Disability Commissioner. So any patient who ends up in our hospitals who feels that he or she has not been treated correctly has an avenue of complaint. Those posters are up in every hospital in our country so that people know we have a complaints assessment procedure at every hospital in our country. I encourage anybody who has a problem or who is unhappy with his or her care to go through the hospital complaints procedure because that is the only way a hospital can deal with those problems. 
I think that hospitals and general practitioners are far better at dealing with problems these days. We used to say it was a gold star if somebody said something was wrong because then we would be able to change it. If we were able to know somebody was unhappy with something we had to view it that way to be able to improve service. So quality assurance is just one section in Part 3 and it is very important. 
Hon GEORGINA TE HEUHEU (NZ National) 
: 
 Part 3 deals with competence fitness to practise and quality assurance and in a way it highlights exactly the kinds of issues that the Opposition has raised earlier. We all know that however much the Minister may want to reassure us and through us the public that this bill will indeed ensure the safety of the public Part 3 deals with instances when maybe safety has not been maintained. If we look at clause 33(1) we see that it states: “If a health practitioner (health practitioner A) has reason to believe that another health practitioner (health practitioner B) may pose a risk of harm to the public by practising below the required standard of competence health practitioner A may give the Registrar of the authority … written notice …” about that. 
The point I want to make here comes back to the point I was making earlier about the definition of competence. I ask whether that will be defined differently by each of the authorities. I would really like the Minister to enlighten me on it because that issue of competence goes to the heart of public health and safety. If early in the debate on this legislation we are already making provision for situations when competence falls below the required standard then to me that does not augur too well. So as I say I look forward to the Minister taking a call on that issue. 
I want to turn to clauses 39 and 40. Clause 39 deals with competence programmes and clause 40 deals with recertification programmes. Of course my colleague Dr Lynda Scott tells me that the certification process is part of what has always gone on anyway but this legislation is now ensuring that certification— 
Dr Lynda Scott 
: It was National. 
Hon GEORGINA TE HEUHEU 
: Of course National brought that in. I had forgotten. But it goes to the heart still of this issue of competence. The thing that worries me in clause 39(1) and the subsequent subclauses is that there is nothing mandatory in the legislation. Now there may be a good reason for that. Clause 39(1) states that the authority “may”—“may from time to time set or recognise competence programmes in respect of health practitioners who hold or apply for practising certificates.” Clause 40(1) states “… each authority may from time to time set or recognise recertification programmes for practitioners who are registered with the authority.” I ask given the sad history of things that have gone before in the health sector with practitioners like Bottrill and co. whether this provision is sufficient. Is it sufficient that the authorities only “may” do that particularly when we are making provision at the beginning of Part 3 for certain requirements when one practitioner suspects that another has fallen below the line in terms of competence? 
Again I did not have the pleasure or privilege of sitting on the Health Committee and perhaps these points were covered but I do think that they may present a bit of a flaw. What confidence do we have if competence and recertification programmes are a matter of discretion for the authorities? I think that that issue must be addressed or at least answered. All the way through Part 3 again the responsibilities are discretionary only and I ask the Minister whether that is sufficient. 
Dr PAUL HUTCHISON (NZ National—Port Waikato) 
: 
 Part 3 is hugely important particularly so because of the area around quality assurance activities. I am very glad to see that the bill makes a big effort to pursue that seriously from clauses 52 to 60. It points out that the purpose of those clauses is to encourage effective quality assurance activities in relation to health services performed by health practitioners by a variety of methods and to give immunity from civil liability to persons who engage in such activities in good faith. Clearly the underlying principle is to ensure that continual efforts are made to improve standards in order to protect the public. 
Of great worry in New Zealand in the 1990s was the abandonment of the various mortality committees because of the increasing and extraordinary fear of the litigation that has been occurring in New Zealand. We have seen the abandonment of the maternal mortality the perinatal mortality and the anaesthetic mortality committees and it has been hugely damaging not to be able to collect the wisdom of the past and apply it to improve clinical practice in the future. 
Clauses 52 and 52A concern me and I believe that my colleague Dr Lynda Scott has proposed some very constructive amendments that I hope the Minister will take note of. During discussions on the health and disability legislation I tried to persuade the Minister that it was important to have one strand of quality assurance activity that was immune under all circumstances. I pointed out that in the state of New South Wales in Australia perinatal mortality committees were indeed immune. The state allowed one strand where practitioners nurses and the whole spectrum of people involved in the care of newborn babies were able to discuss clinical situations completely freely and be immune from litigation. That resulted in a very effective collation of epidemiological and clinical data that was fed back to the shop floor of hospitals and birthing units resulting in a very effective strand that deeply involved trust. So in relation to clause 52(1) the point that the Minister may confer protection on quality assurance activity concerns me. My colleague Lynda Scott has suggested that applications for protection of a quality assurance activity must be made to the Director-General of Health so that instead of a political person being involved in that process it would be the Director-General of Health. 
Perhaps more important is clause 52A(1) which states that a quality assurance activity “does not form part of a protected quality assurance activity to the extent that the quality assurance activity—(a) is concerned with particular acts and omissions; and (b) is carried out at a time when those acts or omissions” are subject to a variety of things. This completely negates that one strand of immunity that I believe is incredibly important. My colleague Lynda Scott has suggested on her Supplementary Order Paper that clauses 52A 53 54 and 54A be omitted and I think that is entirely appropriate. We must not forget what happened in the 1990s with those very important mortality committees. 
I can see the Minister shaking her head. She is not aware of the enormous concern and fear it has put right throughout the whole spectrum of health practitioners in terms of having this litigation hanging over their heads. 
Hon ANNETTE KING (Minister of Health) 
: 
 I will take just a short call because I think it is important to correct something that Dr Hutchison said. He said that the provisions on Lynda Scott’s Supplementary Order Paper would take the politician out of deciding quality assurance. I do not know whether the member is very familiar with quality assurance activities. 
Dr Paul Hutchison 
: Very familiar—much more than you. 
Hon ANNETTE KING 
: If the member is very certain about this—and I am holding one in my hand—does he know who signs off quality assurance activities now? 
Dr Paul Hutchison 
: Go ahead; tell us. 
Hon ANNETTE KING 
: That is why I am saying that the member is ignorant. The person who signs off quality assurance activities is the Minister of Health. I just happen to be sitting here signing off a quality assurance programme for ProCare Health Ltd at this very moment. It is signed by the Minister of Health and has been signed under the Medical Practitioners Act. That requirement has been put back into this bill and those members want to take it out so that the director-general signs them not the Minister. It has been going on for years in quality assurance activities. The Minister signs the very schedule that is laid on this Table but those members want to stop the Minister from doing that and give the authority to the director-general. That shows this Committee that a whole lot of gobbledygook is being been spoken by people who pretend to know what is happening. If the member knew what was happening he would know that the Minister of Health whether it is this one or a National Minister of Health signs quality assurance activities. It is not the director-general; it is the Minister of Health. That authority is transferred over into the new bill. 
SUE KEDGLEY (Green) 
: 
 I would like to speak to an amendment I have proposed to clause 44(2). It is a very simple amendment and I hope most members will support it. Basically the present clause states that if a person who is a health practitioner is unable to perform his or her functions and if somebody has reason to believe that a health practitioner is unable to perform his or her functions then that person will promptly give the registrar of the responsible authority written notice of all circumstances. The amendment I am moving to this clause will require health practitioners to report on another health practitioner if they have reason to believe that person is unable to perform his or her job. My amendment will simply make an exemption to this requirement for those health professionals who are also performing functions as union representatives. 
If this clause were to proceed as it is currently written it would place union representatives who are also registered health practitioners in a very difficult—indeed a very awkward—position. Union representatives such as organisers delegates and officials are expected to provide advice and counsel to their health practitioner members who are experiencing any problems relating to their employment. It would place those representatives in an untenable position if they were then required as health practitioners to report to the relevant authority on what they had learnt as a union representative. This would particularly apply to nurses. Many of the officials and organisers who work for the Nurses Organisation are also registered nurses and they will obviously seek to be registered under the new bill as nurses. This particular clause would put them in an extremely awkward and difficult position and indeed I would have thought an untenable position. 
I hope that by amending the bill in the small way I have proposed—to have this exemption—we can ensure that the legislation does not breach the fundamental rights of health professionals to employment advocacy and support. I suspect that this is just one of those little things we overlooked when we were considering the bill. It was drawn to my attention subsequently. I think it is a very reasonable request. It would simply be an exemption for those practitioners who are performing a role as union representatives. I hope that all parties will support this particular amendment. 
PITA PARAONE (NZ First) 
: 
 I want to make a few comments with regard to this part of the bill and in particular to the quality assurance issue and some of the comments made by the National member. We support the notion of deleting clauses 52A 53 54 and 54A for the following reasons. These proposed amendments relate to several issues. Clause 52A which provides for the disallowance of protection of an activity if a major inquiry is under way is unnecessary and may reduce safety. Firstly it is unnecessary because an inquiry or investigation into an event or issue will not be hindered by a protected quality assurance activity involving the same event or issue as the facts surrounding the event or issue are not protected. It may reduce safety because the initiation or continuation of a quality assurance activity may be essential to prevent a recurrence of the original event or issue. 
Secondly the requirement under clause 53 to have an independent person approved by the Minister to be responsible for a quality assurance activity is unnecessary and probably overly bureaucratic. It is not currently a requirement under the Medical Practitioners Act as I understand it and no reasons have been given for its inclusion. It is likely to substantially inhibit efforts to obtain protection for quality assurance activities. For that reason I support the notion of deleting those clauses. 
PHIL HEATLEY (NZ National—Whangarei) 
: 
 I would like to start by thanking the Minister for taking the time to rise to her feet and put forward her views on the quality assurance issue. However she may not have picked up on the concern felt by members on this side—and the Supplementary Order Papers put forward by Lynda Scott MP for Kaikoura because of her concern and the concern within the health sector—about this Minister’s ability to sign off these quality assurance programmes and whether indeed someone else might be in a better position to do that now and into the future. I would like to let the Minister know that major inquiries into health errors locally and internationally and she should know this have stressed the importance of a no-blame environment. This is to encourage learning from adverse events which all of us would prefer do not happen but they do so health professionals should learn from them. That is what we all want. We want health professionals to learn from those events. 
At the moment the Minister of Health is able to declare an activity as a protected quality assurance activity and that protects any person participating in the activity from civil liberty. That is clear. However this bill proposes a different definition and I want to emphasise that point. It proposes a different definition of quality assurance activity that focuses more on the competence of the individual practitioner and less on the evaluation and assessment of health services provided by that very practitioner. In fact not only does it focus more on a specific practitioner but also on a series of practitioners who may have been involved in an adverse health event. It does not focus on the evaluation and assessment of the health services provided by various practitioners up to and resulting from that event. 
That is the point we would like to make clear and that is why Lynda Scott MP for Kaikoura and Opposition spokesperson on health has been concerned enough to draft up amendments to this bill in this area. Originally a quality assurance exercise that had the potential to enhance patient safety would either have had to proceed without protection or would have had to wait until one or more of these inquiries had concluded. Sometimes this takes years and the Minister is well aware of that. We can list lots of examples where that has happened. I am sure if we get opportunities we will list how many times it has happened. 
The Minister herself has introduced Supplementary Order Paper 118 to amend this particular part which demonstrates to members on this side that the original bill was rushed through the whole parliamentary process and that consultation did not occur as it should. Quite significant changes were made and are still being made. Consultation certainly should occur in this area of the bill if not in any other. That is quality assurance. That is focusing on mistakes made and learning from them into the future. 
In addition the revised bill requires that any protected quality assurance activity be carried out under the auspices of a ministerial appointee. This is not required under the present legislation but the Minister would have us believe that it is. It is not required under this legislation. 
Hon Annette King 
: I didn’t say that. 
PHIL HEATLEY 
: The Minister got to her feet and shouted and carried on and waved bits of paper which were blowing over here making out that these processes actually occur at the present time. They do not. I would also like to bring to the attention of the Minister that many submitters—and she was not sitting round the select committee table and I do not know if her ears were open to those concerns in the health sector—felt that clauses 51 to 60 were impenetrable and their concerns had not been adequately addressed. I put that to the Minister. 
STEVE CHADWICK (NZ Labour—Rotorua) 
: 
 I move  
That the question be now put 
. 
HEATHER ROY (ACT NZ) 
: 
 In speaking to this part I would like to talk mainly about the quality assurance activities and to carry on from where the previous speaker left off. 
Phil Heatley 
: Phil Heatley MP. 
HEATHER ROY 
: I thank Mr Heatley MP. Many of the submitters spoke to the Health Committee of their concerns about clauses 51 through to 60. It is always interesting when we hear the same concerns expressed from different groups over and over again. That sends a very strong message. It certainly did to the members on the Opposition side of the table at the select committee although it seems that perhaps the Government members did not listen quite as carefully as they could have listened because the issues have not been addressed. 
I would like to lend ACT New Zealand’s support to Dr Lynda Scott’s proposed amendment in Supplementary Order Paper 103 to delete clauses 52A 53 54 and 54A. The provision to disallow protection of an activity if a major inquiry is under way is unnecessary and many of the health practitioners’ bodies have backed that up. That provision may actually reduce safety. It is unnecessary because an inquiry or an investigation into an event or issue will not be hindered by protected quality assurance activities involving the same event or issue as the facts surrounding the event or issue are not protected. It may reduce safety because the initiation or continuation of a quality assurance activity may be essential to prevent a recurrence of the original event or issue. If that are not allowed to happen certainly in a free and frank way then nobody will learn anything from it. 
Phil Heatley talked about the differences between the quality assurance provisions in the Medical Practitioners Act and in this bill and it is worth emphasising those again. The Minister said she had just picked up the provisions regarding medical practitioners and put them slap bang into this bill but in fact that is not the case at all. We should take some time to look at the differences between the two pieces of legislation. The Medical Practitioners Act allows the Minister of Health to declare an activity to be a protected quality assurance activity and that protects any person who is participating in the activity from civil liability. That is in sections 67 and 68 of the Medical Practitioners Act. The Minister must be satisfied that the activity is carried out in the public interest. Information that becomes known solely as a result of a declared quality assurance activity cannot be used in any judicial proceeding—that is in section 70—except where the Minister is satisfied that the information relates to conduct that does or may constitute a serious offence. So the provisions are there for the Minister to do something in that case. She can then authorise disclosure for the purpose of investigating and prosecuting the offence. The exception to that is where the disclosure is not of fact but of an expression of opinion unless the information consists only of matter contained in a report prepared by a person who is engaged in the declared quality assurance activities. That is the current situation. 
If we look at this bill we see that it proposes a different definition of quality assurance activities. It focuses more on the competence of the individual practitioner and less on the evaluation and the assessment of the health services provided by that practitioner. Mr Heatley pointed that out but it certainly is worth repeating it again because it is a very important point. Clause 51 of the bill states: “quality assurance activity—(a) means an activity that is undertaken to improve the practices or competence of 1 or more health practitioners …”. That may be compared with the Medical Practitioners Act where the definition of a quality assurance activity is “an activity that consists of or includes or results in an assessment or evaluation of any health services provided by a medical practitioner”. In this bill the quality assurance activity loses protection by virtue of clause 52A as soon as any acts of omission become the subject— 
Dr Lynda Scott 
: That’s why we want it out. 
HEATHER ROY 
: That is right—of an inquiry or investigation by a commission of inquiry by an inquiry board or by the Director-General of Health. 
In order for those things to happen in the right way it is very important that those clauses are omitted. For that reason ACT New Zealand will support Dr Lynda Scott’s Supplementary Order Paper. 
JUDY TURNER (United Future) 
: 
 I would like to take a brief call on the area of quality assurance because during the process of the Health Committee’s deliberations if there was one area that I felt was given extremely close scrutiny and where there was a genuine openness to listen to health practitioners it was the area of quality assurance. The balance that we are striking all the time is between the rights of consumers who have a complaint and feel that health practitioners would block information they felt was essential to their inquiry being available and the needs of true quality assurance which is that health practitioners have the freedom to discuss their concerns in an environment that is free from shame and blame. We need to balance those two factors. 
What was eventually arrived at which I thought was more than fair was the fact that nobody would ever be caught out. That means that if one’s quality assurance activity would possibly need to be used in an inquiry one would know that in advance before one participated in the activity. So a person will not suddenly discover retrospectively that something he or she shared as part of a quality assurance activity can then be used against him or her or against a colleague in way that was not intended at the time that the information was shared. What has been put in place is a provision whereby people will now know in advance before they make any contribution that their contribution may be required for use in an inquiry. 
Nobody will get caught out in that process and the ongoing need for good quality assurance will be protected by the fact that people will always know in advance whether their contribution may be used. 
I think that beyond that even the Minister’s own Supplementary Order Paper 118 has strengthened the provisions in the direction that health practitioners were asking for. If I have a concern now it is more about whether consumers are as confident about what has now been set down regarding quality assurance than it is about what health practitioners have asked for. 
Dr ASHRAF CHOUDHARY (NZ Labour) 
: 
 I move  
That the question be now put 
. 
JUDITH COLLINS (NZ National—Clevedon) 
: 
 I will just carry on the discussion in relation to the quality assurance parts of the bill. My previous occupation was as a lawyer and I had something to do with quality assurance—sometimes the negative side and sometimes the positive side—in relation to law. 
I took particular interest in these parts of the bill when it was before the Health Committee and there are reasons for that. I have dealt with health practitioners from the legal point of view and I have dealt with hospitals in relation to the Privacy Act. I think that many of us will know as members of this House that if there is one general group of professions that have overreacted in the extreme to the requirements of the Privacy Act it has to be medical or health practitioners. In fact all sorts of obstacles were claimed under that Act and used as a way of not actually disclosing information. That is not to say however that the people I am talking about did so with malice but of course they were frightened of the Act. They were frightened of the provisions in it and they felt that if they did something wrong under the Act they would be severely punished. I dealt with many health practitioners—nurses doctors and so on—who genuinely believed they would be in dreadful trouble if they disclosed information to the families of patients but if they had actually done so it could have in many cases prevented suicides and all sorts of other tragedies. 
We are dealing with professionals who are not lawyers. They are people working under extreme stress and often under conditions where they have to make a decision in a split second. They do not have the luxury of going back mulling it over having a little consultation checking it out with all their friends colleagues and neighbours then perhaps deciding on a course of action. These people are at the coalface. From the doctors to the nurses to every sort of health practitioner in an emergency or hospital situation including the ambulance drivers all the people throughout this sphere are at the coalface. When they are told when they have quality performance reviews that they will be subject to prosecution or will go before their disciplinary body if they make mistakes if they reveal mistakes that is a bad thing. 
It is a bad thing not just for the health professionals. I have to say I do resent the Minister of Health’s implication that this side of the Committee is interested only in protecting health professionals and health practitioners. That is absolute nonsense. It is a bad thing for the public and it is a bad thing for patients when the people making life and death decisions about them are worried they will end up being prosecuted. Those people do not become nurses and doctors because they want to kill people; they become nurses and doctors because they want to help people. They do not just want to help them; they train to help them. They spend years and years of their lives dedicated to being the very best professionals that they can be. The last thing they want to do is to hurt people—quite the opposite. 
In fact what we are doing with this bill is dumbing down the health professionals. [ 
Interruption 
] I see that members on the other side are awake now. The health professionals have said: “Please don’t dumb us down. Please treat us as though we are professionals. Please give us some credit for wanting to be the very best in our areas and to do the very best for our patients the people who come to us because they want to be helped.” They are not there they say because they want to cause harm. Health professionals need to know that the people of New Zealand and this Parliament have confidence that they will do the very best they can. It is so important when we are debating a bill such as this and voting on it part by part that we acknowledge the work that the nurses of this country do the work that the doctors of this country do and the work that the other health professionals do. 
Hon RICK BARKER (Minister for Courts) 
: 
 I move  
That the question be now put 
. 
A party vote was called for on the question  
That the question be now put. 
Ayes 69 
Labour 52; Green Party 9; United Future 8. 
Noes 48 
New Zealand National 27; New Zealand First 13; ACT New Zealand 8. 
Motion agreed to. 
The question was put that the amendment set out on Supplementary Order Paper 114 in the name of Sue Kedgley to insert new subclause (2A) in clause 44 be agreed to. 
A party vote was called for on the question  
That the amendment be agreed to. 
Ayes 9 
Green Party 9. 
Noes 108 
Labour 52; New Zealand National 27; New Zealand First 13; ACT New Zealand 8; United Future 8. 
Amendment not agreed to. 
The question was put that the amendment set out on Supplementary Order Paper 111 in the name of Heather Roy to clause 47(4A) be agreed to. 
A party vote was called for on the question  
That the amendment be agreed to. 
Ayes 48 
New Zealand National 27; New Zealand First 13; ACT New Zealand 8. 
Noes 69 
Labour 52; Green Party 9; United Future 8. 
Amendment not agreed to. 
The question was put that the amendment set out on Supplementary Order Paper 103 in the name of Dr Lynda Scott to insert new subclauses (3) and (4) in clause 52 be agreed to. 
A party vote was called for on the question  
That the amendment be agreed to. 
Ayes 57 
New Zealand National 27; New Zealand First 13; ACT New Zealand 8; Green Party 9. 
Noes 60 
Labour 52; United Future 8. 
Amendment not agreed to. 
The question was put that the amendment set out on Supplementary Order Paper 103 in the name of Dr Lynda Scott to omit clause 52A be agreed to. 
A party vote was called for on the question  
That the amendment be agreed to. 
Ayes 48 
New Zealand National 27; New Zealand First 13; ACT New Zealand 8. 
Noes 69 
Labour 52; Green Party 9; United Future 8. 
Amendment not agreed to. 
The question was put that the amendments set out on Supplementary Order Paper 103 in the name of Dr Lynda Scott to omit clauses 53 54 and 54A be agreed to. 
A party vote was called for on the question  
That the amendments be agreed to. 
Ayes 48 
New Zealand National 27; New Zealand First 13; ACT New Zealand 8. 
Noes 69 
Labour 52; Green Party 9; United Future 8. 
Amendments not agreed to. 
The question was put that the amendments set out on Supplementary Order Paper 118 in the name of Hon Annette King to Part 3 be agreed to. 
A party vote was called for on the question  
That the amendments be agreed to. 
Ayes 69 
Labour 52; Green Party 9; United Future 8. 
Noes 48 
New Zealand National 27; New Zealand First 13; ACT New Zealand 8. 
Amendments agreed to. 
A party vote was called for on the question  
That Part 3 as amended be agreed to. 
Ayes 69 
Labour 52; Green Party 9; United Future 8. 
Noes 48 
New Zealand National 27; New Zealand First 13; ACT New Zealand 8. 
Part 3 as amended agreed to. 
Part 4 Complaints and discipline 
Dr LYNDA SCOTT (NZ National—Kaikoura) 
: 
 It is quite disappointing to get only one call on such a comprehensive bill with so many different clauses. It will be really difficult to be able to address in 5 minutes all the issues in Part 4 because it is very comprehensive. Part 4 is all about how the Health Practitioners Disciplinary Tribunal works how complaints are made how the new professional conduct committees work and cultural competence and they cannot be given justice in a 5-minute speech. 
I will begin by talking about the situation pre-1996 and post-1996. Pre-1996 any complaints went to the complaints assessment committees via the Medical Practitioners Disciplinary Tribunal. Post-1966 the Health and Disability Commissioner Act came in and complaints were referred to the Health and Disability Commissioner. Post-1996 people have had a great deal of confidence in the Health and Disability Commissioner Act. It was brought in under National and it has worked extremely well to resolve disputes involving the public concerning the level of their care. Just about all the complaints we heard in the Parry inquiry centred on how the complaints assessment committees worked. I have also had personal correspondence from people who have written to me and said how upset they were with the complaints assessment committee. 
During the select committee process we were quite keen to change the concept that people still had—that under this bill there would be a complaints assessment committee. So we came up with the new name of “professional conduct committee”. Also I am very pleased that all complaints will now go to the Health and Disability Commissioner to be dealt with in a one-stop shop. That was the whole crux of the Cull report. Helen Cull wanted a one-stop shop which this bill will deliver and it was brought about through the work done in the select committee. However the professional conduct committee will look at things like fraud and sexual abuse—those types of issues that do not concern a profession’s clinical competence. They will go to the Health and Disability Commissioner and then to the Health Practitioners Disciplinary Tribunal. 
There has also been concern about this issue. Wendy Brandon who had been chair of the Medical Practitioners Disciplinary Tribunal voiced this concern most strongly by saying that people have a right to be judged by their peers. There was a great deal of debate about what the representation on the committee should be—how many lay people and how many professional people there should be. But quite frankly the profession is harder on its people than lay people are. Being judged by one’s peers means that one’s peers know what the level of competence should be. Concern was expressed that either a group of nurses would judge nurses or a group of doctors would judge doctors. But if one looks especially at highly specialised areas of medicine one really does needs one’s peers to be able to judge them. The upshot is that there will be three health professionals one lay person and one lay person who is a legal chair on the Health Practitioners Disciplinary Tribunal. That has been a good decision and does allow a person to be judged by a majority of his or her peers. 
I have put in an amendment to clause 116 which is about members of the authority being elected. People have a right to feel that there will be elected members. The Medical Council has already had elected members so I hope that having elected members on the authority will be allowed. The ability for the public to feel confident about the competence of health practitioners is essential. It is essential that people in this country have confidence in health practitioners and that they must feel that if something is going wrong there are competency programmes for each health professional and recertification programmes. 
PHIL HEATLEY (NZ National—Whangarei) 
: 
 As the applause dies down I take the opportunity to speak to Part 4 “Complaints and discipline”. There are two provisions in the bill that have the potential to erode severely—and I do not say that lightly—the advantages to the public of professional self-regulation which is what we have generally seen throughout different health areas and what we have generally seen historically. The first provision is the removal of the setting of professional codes of ethics from the various professions to the statutory authority and the abolition of the right of election to the authorities. Those things are of concern to us. Those are the issues in Part 4 that I put before the Committee. The first is the removal from the profession of the setting of professional codes of ethics and the second is the abolition of the right of election to the authorities. 
This bill and particularly Part 4 establishes a single disciplinary tribunal—the Health Practitioners Disciplinary Tribunal—to hear complaints against those health practitioners who warrant significant disciplinary action and are defined that way. It applies to those who warrant “significant” disciplinary action. There is a bar as to what is significant and what is insignificant. Health practitioners certainly those who work together with those requiring discipline are the first to recognise that difference and can make the recommendation as to what is significant and what is not. 
In the first instance complaints must be referred by the authority to the Health and Disability Commissioner. After an investigation which should reach a high degree of thoroughness with interviews and so on and so forth and with rights of reply by those being disciplined charges may be laid before the Health Practitioners Disciplinary Tribunal by the director of proceedings under the Health and Disability Commissioner Act which was passed in 1994.  
There is another option which applies if the complaint is referred to an authority by the Health and Disability Commissioner by a complaints investigation committee of the authority under this bill. We read about that in clauses 61 through to 100 which make reference to the schedules which I suspect we will be debating later. Clauses 219 to 238 in Part 8 also amend the Health and Disability Commissioner Act. We will need to look at those schedules and examine them and ensure that everything that should be there is there.  
However our concern is that the Health Practitioners Disciplinary Tribunal will be made up of ministerial appointees and that is just one more example of where the Minister has her finger in the pie. There was a high degree of professional representation on the previous tribunal and I think Dr Lynda Scott alluded to that. I understand that representatives formerly were elected independent of the Minister but here we have the Minister actually involving herself in the appointment process.  
There is no provision for the profession to elect its own representatives and there is no provision for the profession to judge its own as there should be. It has worked well in the past. It works in other sectors outside the health sector so why should it not work here? Why should the Minister have the opportunity to reward her mates by giving them a role on this tribunal? I think it opens up the process to accusations of political interference. I can imagine that happening because it is the habit of this Government. 
Dr PAUL HUTCHISON (NZ National—Port Waikato) 
: 
 I reiterate the comments of my colleague Dr Lynda Scott in saying that I hope there will be plenty of time to spend on this part of the bill because it is very important. 
Progress reported.