Health and Disability Services (Safety) Act 2001

1: Title
This Act is the Health and Disability Services (Safety) Act 2001.
1: Preliminary
2: Commencement
1: Sections 9 to 11 Part 3 sections 51 52 54 to 58 Schedules 1 to 3
2: Sections 59 60(1) Schedules 4 5
3: The rest of this Act comes into force on 1 July 2002.
3: Purpose
The purpose of this Act is to—
a: promote the safe provision of health and disability services to the public; and
b: enable the establishment of consistent and reasonable standards for providing health and disability services to the public safely; and
c: encourage providers of health and disability services to take responsibility for providing those services to the public safely; and
d: encourage providers of health and disability services to the public to improve continuously the quality of those services.
4: Interpretation
1: In this Act, unless the context otherwise requires,— affected consumers affected providers audit report
a: in relation to an auditing agency and a certified provider, means an audit report by the agency on the person's present and likely future provision of health care services of a kind the person is certified to provide, prepared in the light of—
i: the relevant service standards; and
ii: any conditions subject to which the person is certified to provide services of that kind; and
iii: any requirements the person is required to meet by virtue of an exemption under section 23(1)
iv: any conditions subject to which the person is exempted from an element of those standards; and
b: in relation to an auditing agency and a person intending to provide but not yet certified to provide health care services of any kind, means an audit report by the agency on the person's likely future provision of services of that kind, prepared in the light of the relevant service standards auditing agency section 32(1) authorised person
a: means a person authorised in writing by the Director-General to enter and inspect places for the purposes of this Act:
b: includes the Director-General certified provider section 26(1) cessation order section 48(1) closing order section 49(1) Director-General health care services health care services of any kind health or disability services section 5(1) hospital care
a: in premises held out by the person providing or intending to provide the services as being capable of accommodating 2 or more of the people for whom the services are provided for continuous periods of 24 hours or longer; and
b: in consideration of payment (whether made or to be made, and whether by the Crown, the people for whom the services are provided, or any other person) kind mental health services Minister Ministry place relevant service standards residential disability care rest home care section 6(2) service standards section 13 section 14(1) specified health or disability services section 7
2: Services may be health or disability services, even if they are or include the provision of goods.
5: Health or disability services defined
1: In this Act, health or disability services
a: means services of any of the following kinds:
i: chiropractic services, dental services, fertility services, geriatric services, gynaecological services, habilitation services, maternity services, medical services, mental health services, obstetric services, osteopathy services, rehabilitation services, physiotherapy services, and surgical services:
ii: collecting, storing, or transporting human tissue or human bodily substances for the purposes of, or in connection with, the provision or prospective provision of health or disability services:
iii: services, provided to people with disabilities or people who are frail (whether because of their age or for some other reason), for their care or support or to promote their independence; and
b: includes services intended to prevent, or lessen the prevalence or severity of, illness or injury; and
c: includes any services within the meaning of the Pae Ora (Healthy Futures) Act 2022
d: includes services intended to enable the detection, the diagnosis, the determination of the nature or extent or prognosis, or the monitoring, of any illness, injury, or other condition, the treatment of which (or the treatment of the effects of which) is or would be providing health or disability services of any kind, for example—
i: biochemical, chemical, cytogenetic, cytological, haematological, histopathological, immunological, microbiological, sensory, or serological analysis, examination, scanning, screening, or testing:
ii: examining, scanning, screening, or testing people using electro-magnetic or ionising radiation, magnetism, or sound; and
e: includes administering the provision of health or disability services.
2: Subparagraphs (i) and (ii) of paragraph (d) of subsection (1) do not limit the generality of that paragraph or of paragraph (a) of that subsection. Section 5(1)﻿(c) amended 1 July 2022 section 104 Pae Ora (Healthy Futures) Act 2022
6: Rest home care defined
1: This subsection applies to services that—
a: are residential care provided for the care or support of, or to promote the independence of, people who are frail (whether because of their age or for some other reason); and
b: neither include nor are provided together with geriatric services.
2: In this Act, rest home care (or by or through a civil union or a de facto relationship)
a: in premises held out by the person providing the services as being principally a residence for people who are frail because of their age; and
b: in consideration of payment (whether made or to be made, and whether by the Crown, the people for whom the services are provided, or any other person). Section 6(2) amended 26 April 2005 section 7 Relationships (Statutory References) Act 2005
7: Act may be applied to other health or disability services
1: The Governor-General may, by Order in Council made on the Minister's recommendation, declare health or disability services of any kind to be services to which this Act applies.
2: The Minister must not recommend the making of an order unless satisfied that—
a: service standards for services of the kind concerned are in force, or will be in force within 12 months of the commencement of the order; and
b: the order will come into force late enough to give affected providers a reasonable time to comply with the standards, and in any event no earlier than 12 months after it is made.
3: An order cannot be revoked by Order in Council; and cannot be amended by Order in Council except to correct an error or omission.
4: An order under this section is secondary legislation ( see Part 3 The following table is small in size and has 3 columns that are grouped under the heading Legislation Act 2019 requirements for secondary legislation made under this section. Legislation Act 2019 requirements for secondary legislation made under this section Publication PCO must publish it on the legislation website and notify it in the Gazette LA19 s 69(1)﻿(c) Presentation The Minister must present it to the House of Representatives LA19 s 114 cl 32(1)﻿(a) Disallowance It may be disallowed by the House of Representatives LA19 ss 115 116 This note is not part of the Act. Section 7(4) inserted 28 October 2021 section 3 Secondary Legislation Act 2021
8: Services to which Act does not apply
1: This Act does not apply to services provided in premises that are—
a: a prison within the meaning of section 3(1)
b: a residence established under section 364 Oranga Tamariki Act 1989
c: a children's health camp operated by Children's Health Camps—The New Zealand Foundation for Child and Family Health and Development.
2: This Act does not apply to services provided in any premises (other than any particular premises specified in the order as being premises to which this Act applies) that are premises of a kind for the time being declared by the Governor-General by Order in Council to be premises to which this Act does not apply.
3: An order under subsection (2) may be amended or revoked by Order in Council; but the amending or revoking order must not come into force any sooner than 12 months after it is made.
4: An order under this section is secondary legislation ( see Part 3 The following table is small in size and has 3 columns that are grouped under the heading Legislation Act 2019 requirements for secondary legislation made under this section. Legislation Act 2019 requirements for secondary legislation made under this section Publication PCO must publish it on the legislation website and notify it in the Gazette LA19 s 69(1)﻿(c) Presentation The Minister must present it to the House of Representatives LA19 s 114 cl 32(1)﻿(a) Disallowance It may be disallowed by the House of Representatives LA19 ss 115 116 This note is not part of the Act. Section 8(1)﻿(a) substituted 1 June 2005 section 206 Corrections Act 2004 Section 8(1)﻿(b) amended 14 July 2017 section 149 Children, Young Persons, and Their Families (Oranga Tamariki) Legislation Act 2017 Section 8(4) inserted 28 October 2021 section 3 Secondary Legislation Act 2021
9: Providers of health care services to meet service standards
A person providing health care services of any kind must do so—
a: while certified by the Director-General to provide health care services of that kind; and
b: while meeting all relevant service standards; and
c: in compliance with any conditions subject to which the person was certified by the Director-General to provide health care services of that kind; and
d: in compliance with this Act; and
e: if the services are rest home care, or geriatric services that are hospital care, in compliance with any applicable regulations under section 53(1)﻿(a)
10: Certification not to have effect as professional qualification
Section 9
11: Transitional arrangements for existing providers
Section 11 expired 1 October 2004 section 11(5)
12: Act binds the Crown
This Act binds the Crown.
2: Service standards, and certification and audit of providers
Service standards
13: Minister may approve service standards
1: The Minister may
2: Service standards approved under this section are secondary legislation ( see Part 3 The following table is small in size and has 3 columns that are grouped under the heading Legislation Act 2019 requirements for secondary legislation made under this section. Legislation Act 2019 requirements for secondary legislation made under this section Publication PCO must publish it on the legislation website and notify it in the Gazette LA19 s 69(1)﻿(c) Presentation The Minister must present it to the House of Representatives LA19 s 114 cl 32(1)﻿(a) Disallowance It may be disallowed by the House of Representatives LA19 ss 115 116 This note is not part of the Act. Section 13(1) amended 28 October 2021 section 3 Secondary Legislation Act 2021 Section 13(2) inserted 28 October 2021 section 3 Secondary Legislation Act 2021
14: Amendments and revocations
1: The Minister may
2: The Minister may revoke—
a: service standards approved under section 13
b: an amendment approved under subsection (1).
3: The following are secondary legislation ( see Part 3
a: an amendment approved under subsection (1):
b: a revocation under subsection (2). The following table is small in size and has 3 columns that are grouped under the heading Legislation Act 2019 requirements for secondary legislation made under this section. Legislation Act 2019 requirements for secondary legislation made under this section Publication PCO must publish it on the legislation website and notify it in the Gazette LA19 s 69(1)﻿(c) Presentation The Minister must present it to the House of Representatives LA19 s 114 cl 32(1)﻿(a) Disallowance It may be disallowed by the House of Representatives LA19 ss 115 116 This note is not part of the Act. Section 14(1) amended 28 October 2021 section 3 Secondary Legislation Act 2021 Section 14(2) replaced 28 October 2021 section 3 Secondary Legislation Act 2021 Section 14(3) inserted 28 October 2021 section 3 Secondary Legislation Act 2021
15: Power not to be delegated
1: The Minister may not delegate the power to approve standards or amendments of standards, or the power to revoke approvals of standards or amendments of standards.
2: Subsection (1) overrides clause 5 Section 15(2) amended 7 August 2020 section 135 Public Service Act 2020
16: Status of notices
Section 16 repealed 28 October 2021 section 3 Secondary Legislation Act 2021
17: Copies of standards to be available
Section 17 repealed 28 October 2021 section 3 Secondary Legislation Act 2021
18: Criteria for approval of standards
1: The Minister must not approve standards for providing health or disability services of any kind unless the Minister—
a: has consulted (as required by section 20
i: whether standards contained in an existing document or documents should be approved as service standards for providing services of that kind; or
ii: what service standards for providing services of that kind should be approved; and
b: has considered the outcome of the consultation; and
c: if the Minister consulted on what service standards for providing services of that kind should be approved,—
i: in the light of the consultation, has created an initial draft of the proposed standards; and
ii: has consulted further (as required by section 20
d: is satisfied that requiring providers of services of that kind to provide them in compliance with the standards approved would be in the public interest, having regard to—
i: the extent to which compliance would be likely to ensure the safe provision of services of that kind to the public; and
ii: the likely costs to providers of compliance.
2: The Minister may consult under subsection (1)﻿(a)﻿(ii) by reference to an existing document or documents relating to providing health or disability services.
3: Consultation under section 24
19: Criteria for approval of amendments
1: The Minister must not approve amendments of service standards for providing health or disability services of any kind unless the Minister—
a: has consulted (as required by section 20
b: has considered the outcome of the consultation; and
c: is satisfied that requiring providers of services of that kind to provide them in compliance with the standards as amended by the amendments approved would be in the public interest, having regard to—
i: the extent to which compliance would be likely to ensure the safe provision of services of that kind to the public; and
ii: the likely costs to providers of compliance.
2: Subsection (1) does not prevent the approval of amendments that are a modified version of proposed amendments consulted on under paragraph (a) of that subsection.
3: Paragraphs (a) and (b) of subsection (1) do not apply to amendments made to service standards solely to correct an error or omission.
20: Consultation
If required by section 18 section 19 section 24
a: must make reasonable attempts to consult—
i: organisations known to the Minister to represent affected consumers; and
ii: organisations known to the Minister to represent affected providers; and
iii: all Crown entities (within the meaning of section 2(1)
iv: a reasonably representative sample of affected providers; and
v: a reasonably representative sample of affected consumers or (if the Minister thinks it more appropriate) a reasonably representative sample of people who would be entitled to consent on behalf of affected consumers to the provision of services of that kind to affected consumers; and
b: if services of that kind are usually provided by people who must be registered or licensed by, or be members of, some body established or recognised by law before they may lawfully provide services of that kind, must also consult that body.
21: Contents of standards
1: Service standards may include elements of any or all of the following kinds:
a: general statements of appropriate care delivery outcomes for providers of health care services of all kinds:
b: statements of appropriate care delivery outcomes for providers of health or disability services of any kind:
c: statements of appropriate care delivery outcomes for particular aspects of providing health or disability services of any kind:
d: statements of appropriate outcomes, procedures, or techniques for particular aspects of providing health or disability services of any kind:
e: technical recommendations or specifications for particular aspects of providing health or disability services of any kind:
f: technical recommendations or specifications for equipment, facilities, goods, or materials, used in providing health or disability services, or health or disability services of any kind:
g: in the case of hospital care or rest home care, a means by which there can be ascertained—
i: minimum numbers of nursing and other care staff who must be on duty (at any time, or at different times) in premises in which the care is being provided; and
ii: any minimum qualifications any of them must have.
2: Statements of appropriate outcomes may include either or both of the following:
a: descriptions of means for achieving those outcomes:
b: criteria for assessing whether outcomes are appropriate.
3: Subsections (1) and (2) do not limit the generality of section 13
22: Commencement of service standards
1: The following must specify the day on which they come into force:
a: a service standard approved under section 13
b: an amendment approved under section 14
c: a revocation under section 14
2: The specified day must be no earlier than 6 months after the day of the approval or revocation.
3: However, subsection (2) does not apply to—
a: approved service standards that are referred to in section 25(1)
b: approved amendments to service standards that are being made solely to correct an error or omission. Section 22 replaced 28 October 2021 section 3 Secondary Legislation Act 2021
23: Minister may grant exemptions
1: The Minister may at any time (whether before or after the commencement of the standards concerned), by notice in the Gazette
a: exempt any person from any stated element of any stated service standards; or
b: amend or revoke any exemption.
2: The exemption—
a: must require the person to meet some other requirement stated in the notice, instead of the element concerned; and
b: may be unconditional, or subject to any conditions stated in the notice.
3: The Minister must not exempt any person from an element of any service standards (or amend the exemption of any person from an element of any service standards) unless—
a: the person has paid the prescribed fee (if any); and
b: the Minister is satisfied that—
i: there are exceptional circumstances justifying the exemption (or the exemption as amended); and
ii: the safety of affected consumers will not be compromised if the person provides services meeting only the other requirement stated in the notice (or the other requirement stated in the notice as amended) rather than that element.
4: If not earlier revoked, the exemption expires on the earliest of—
a: the day 3 years after the date of the notice granting it:
b: a day stated in the notice for the purpose:
c: the day on which the certification of the person concerned to provide health or disability services of the kind concerned expires or is cancelled.
5: For the purposes of this Act, a person exempted by a notice under this section from an element of any service standards meets the standards if the person—
a: meets—
i: the rest of the standards; and
ii: the other requirement stated in the notice instead of that element; and
b: complies with any conditions stated in the notice.
24: Standards to be reviewed regularly
1: The Minister must from time to time consult (as required by section 20
a: continue in force unamended; or
b: to encourage the providers of health care services of that kind to improve the quality of those services,—
i: be amended; or
ii: be replaced by 1 or more new sets of service standards.
2: The Minister must consult no later than 4 years after the most recent of the following days:
a: the day the approved standards
b: the day the most recent approved amendment
c: the day the most recent consultation on the standards under this section was begun. Section 24(2)﻿(a) amended 28 October 2021 section 3 Secondary Legislation Act 2021 Section 24(2)﻿(b) amended 28 October 2021 section 3 Secondary Legislation Act 2021
25: Previous consultation sufficient for certain initial standards
1: Paragraphs (a) to (c) of section 18(1)
a: the first standards for providing hospital care, residential disability care, and rest home care approved under this Act that relate only to infection control:
b: the first standards for providing hospital care, residential disability care, and rest home care approved under this Act that relate only to patient restraint:
c: the first standards for providing hospital care, residential disability care, and rest home care approved under this Act (not being standards that relate only to infection control or patient restraint):
d: the first standards for providing mental health services approved under this Act.
2: Until the commencement of an order under section 7(1)
a: the standards referred to in subsection (1)﻿(d) have effect only as standards for providing mental health services provided as part of hospital care, residential disability care, or rest home care; and
b: the application of section 9 Certification of providers
26: Director-General may certify providers
1: The Director-General may, by written notice to any person, certify the person to provide health care services of any kind.
2: The notice must state—
a: the name of the person; and
b: the kind or kinds of health care services to which it relates; and
c: the day on which it takes effect; and
d: any conditions subject to which the person is certified to provide the services; and
e: the day on which it expires.
27: Criteria for certification
1: The Director-General must certify a person to provide health care services of any kind if, and only if,—
a: the person has—
i: applied in writing to the Director-General to be certified to provide health care services of that kind; and
ii: paid to the Director-General the fee (if any) prescribed for certification to provide health care services (or health care services of that kind); and
b: an auditing agency has given the Director-General a copy of a recent audit report on the provision of health care services of that kind by the person; and
c: the Director-General is satisfied that the person meets relevant service standards that—
i: are already in force; or
ii: will be in force on the day on which the notice certifying the person to provide health care services of that kind takes effect.
2: For the purposes of satisfying himself or herself that the person meets the service standards, the Director-General—
a: is entitled to rely on the audit report; but
b: may have regard to any other relevant matter.
28: Conditions
1: Conditions stated under section 26(2)﻿(d)
2: The conditions may include—
a: requirements that the person concerned must obtain audit reports on the provision of the services concerned at stated dates or intervals:
b: requirements that the person concerned must at stated dates or intervals—
i: assess its provision of the services concerned; and
ii: prepare, and give to the Director-General, a report on the results of its assessment:
c: requirements that, on written demand by the Director-General, the person concerned must give the Director-General, in writing,—
i: any information about the person's provision of the services concerned (or any of them) the Director-General reasonably requires; or
ii: any information about the person's provision of the services concerned (or any of them) stated in the notice:
d: requirements that the person concerned must keep the Director-General informed of who the person's auditing agency is.
3: Subsection (2) does not limit the generality of subsection (1).
29: Expiry of certification
1: The day on which a notice under section 26
2: The Director-General must not decide a day more than 3 years after the notice takes effect unless—
a: the person concerned is already certified to provide health care services of the kind concerned; and
b: the Director-General is satisfied that the person has been improving, and is likely to continue to improve, the quality of the health care services of that kind provided by the person.
3: Unless earlier cancelled, a person's certification to provide health care services of any kind expires on the day on which the notice certifying the person to provide health care services of that kind expires.
4: In order to enable a person already certified to provide health care services of any kind to continue to provide those services,—
a: the Director-General may again certify the person to provide health care services of that kind before the existing certification expires; and
b: in relation to the new certification, the Minister may under section 23
30: Cancellation of certification
1: The Director-General must cancel the certification of a person to provide health care services of any kind if satisfied that—
a: the person does not meet the relevant service standards (whether because the quality of the services provided by the person has changed, or because the standards have been amended or replaced); or
b: there are no longer in force service standards for providing health care services of that kind; or
c: the person has asked the Director-General in writing to cancel it.
2: The Director-General may cancel the certification of a person to provide health care services of any kind if—
a: the Director-General has cancelled the designation of the auditing agency that prepared the audit report on the provision by the person of health care services of that kind most recently sent to the Director-General; and
b: the Director-General has given the person a notice in writing, stating that the designation has been cancelled and explaining the effect of this subsection, and asking the person to do 1 or more of the following things:
i: send to the Director-General a copy of the most recently prepared audit report on the person's provision of health care services of that kind:
ii: obtain a new audit report from another auditing agency on the person's provision of health care services of that kind, and send a copy to the Director-General:
iii: arrange to obtain, at the time when an audit report will be required in any event, an audit report from another auditing agency on the person's provision of health care services of that kind, and tell the Director-General in writing the name of the new agency:
iv: give the Director-General, in writing, any information relating to the person's provision of health care services of that kind the Director-General asks for; and
c: more than 3 months has passed since the person was given the notice, and the person has failed or refused to comply with it.
3: The Director-General may cancel the certification of a person to provide health care services of any kind if,—
a: having made reasonable efforts to do so, the Director-General has not been able to satisfy himself or herself that the person meets the relevant service standards; or
b: the Director-General is satisfied that the person has failed or refused to comply with—
i: a provision of this Act other than section 9
ii: a condition subject to which the person is certified to provide services of that kind; or
iii: a requirement or condition stated in a notice under section 23
iv: if the services are rest home care, or geriatric services that are hospital care, any applicable regulations under section 53(1)﻿(a)
4: Subsection (2) does not limit the circumstances in which the Director-General may cancel the certification of a person to provide health care services of any kind under subsection (3)﻿(a).
5: The cancellation of a person's certification must be effected by written notice to the person, stating—
a: the name of the person; and
b: the kind or kinds of health care services to which it relates.
31: Providers to give Director-General certain information
1: The Director-General must not certify a person to provide health care services of any kind unless the person has given the Director-General—
a: written notice of the name, address, and telephone number of a person who is for the time being the person whom the Director-General should contact about the services; and
b: if the services are to be provided at fixed locations, written notice of the locations.
2: A certified provider must promptly give the Director-General written notice of all changes in the name, address, or telephone number of the person who is for the time being the person whom the Director-General should contact about the services.
3: A certified provider must promptly give the Director-General written notice of any new fixed location at which the services are being provided.
4: A certified provider must promptly give the Director-General written notice,—
a: in the case of a body corporate (other than Health New Zealand Charitable Trusts Act 1957
b: in the case of a Trust Board incorporated under the Charitable Trusts Act 1957, of any change in its membership:
c: in the case of any other trust, of any change in the trustees:
d: in the case of a partnership, of any change in the partners.
5: A person certified to provide health care services of any kind must promptly give the Director-General written notice of—
a: any incident or situation (for example, a fire, flood, or failure of equipment or facilities) that has put at risk, may have put at risk, puts at risk, or may be putting at risk the health or safety of people for whom the person was or is providing the services; and
b: any investigation commenced by a constable
c: any death of a person to whom the person was providing the services, or occurring in any premises in which they were provided, that is required to be reported to a coroner under the Coroners Act 2006
6: For the purposes of subsection (5)﻿(c), a coroner includes an associate coroner to the extent that they have the jurisdiction of a coroner under the Coroners Act 2006 Section 31(4)﻿(a) amended 1 July 2022 section 104 Pae Ora (Healthy Futures) Act 2022 Section 31(5)﻿(b) amended 1 October 2008 section 116(a)﻿(ii) Policing Act 2008 Section 31(5)﻿(c) amended 1 July 2007 section 146 Coroners Act 2006 Section 31(6) inserted 5 April 2023 section 36 Coroners Amendment Act 2023 Auditing agencies
32: Director-General may designate persons to audit providers
1: The Director-General may, by notice in the Gazette
2: The notice must state any conditions subject to which the designation is given.
33: Criteria for designating external agencies
The Director-General must designate a person who is not an employee of the Ministry to audit the provision of health care services of any kind by certified providers if, and only if,—
a: the person has—
i: applied in writing to the Director-General to be designated to audit the provision of services of that kind by certified providers; and
ii: paid to the Director-General the fee (if any) prescribed for designation to audit the provision of services of that kind; and
b: the Director-General is satisfied that the person—
i: has the technical expertise to audit the provision of services of that kind; and
ii: has in place effective systems for auditing the provision of services of that kind; and
iii: has in place effective arrangements to avoid or manage any conflicts of interest that may arise in auditing the provision of services of that kind; and
iv: will administer those systems and arrangements properly and competently, and in compliance with any conditions subject to which the designation is given; and
v: will comply with this Act.
34: Criteria for designating employees of Ministry
1: The Director-General must designate an employee of the Ministry to audit the provision of health care services of any kind by certified providers if, and only if, satisfied that—
a: it is necessary or desirable to do so to enable providers or prospective providers who cannot find a convenient or appropriate auditing agency to audit their provision or likely future provision of health care services of any kind; and
b: the Ministry—
i: has in place effective systems for auditing the provision of services of that kind; and
ii: has in place effective arrangements to avoid or manage any conflicts of interest that may arise in auditing the provision of services of that kind; and
c: the person—
i: has the technical expertise to audit the provision of services of that kind; and
ii: will administer those systems and arrangements properly and competently, and in compliance with any conditions subject to which the designation is given; and
iii: will comply with this Act.
2: An auditing agency who is an employee of the Ministry may refuse to audit the provision of health care services by any person unless the person has paid the prescribed fee (if any).
35: Modification of designation
1: The Director-General may from time to time, by notice in the Gazette section 32(1)
a: by revoking or amending any condition to which the designation it effects is subject; or
b: by making the designation it effects subject to a new condition; or
c: to correct an error or make a minor or technical adjustment.
2: The amendment comes into force on a day specified in the notice.
36: Agency to give Director-General copy of audit report
Promptly after giving a certified provider or prospective provider an audit report, an auditing agency must give a copy to the Director-General.
37: Cancellation of designation
1: The Director-General may at any time, by notice in the Gazette section 32(1)
a: if no longer satisfied (or unable, after making reasonable efforts, to obtain from the agency enough evidence to continue to be satisfied) of the matters stated in section 33(b)
b: if satisfied that the agency has, without reasonable excuse, failed or refused to comply with—
i: a provision of this Act; or
ii: a condition to which the designation was subject; or
c: if asked by the agency in writing to do so.
2: The Director-General may at any time, by notice in the Gazette section 32(1)
3: The cancellation takes effect—
a: on a day stated in the notice; or
b: if no day is stated in the notice, on the day after the date on which the notice is published in the Gazette
38: Expiry of designation
1: The designation of an auditing agency under section 32(1)
2: The designation under section 32(1)
39: Procedure for cancelling private agency's designation
1: Before cancelling the designation of an auditing agency other than an employee of the Ministry, the Director-General must—
a: give the agency written notice of—
i: the reasons for proposing to cancel it; and
ii: the fact that the agency has a reasonable time within which to show that it should not be cancelled; and
b: give the agency a reasonable time within which to show that the designation should not be cancelled; and
c: consider any arguments and evidence advanced by the agency during that reasonable time that may tend to show that the designation should not be cancelled.
2: Promptly after cancelling the designation of an auditing agency that is not an employee of the Ministry, the Director-General must make reasonable efforts to give certified providers known to the Director-General to have had audit reports prepared by the agency written notice of—
a: the cancellation and the reasons for it; and
b: the effect of section 30(2)
3: Enforcement
Inspection of places
40: General right to inspect places
1: An authorised person who believes on reasonable grounds that health care services are being provided in any place may at any reasonable time exercise any of the powers in section 42(1)
a: whether health care services are in fact being provided there:
b: whether health care services being provided there are being provided in compliance with section 9
c: whether health care services being provided there are being provided in a safe and satisfactory manner:
d: whether the place is safe and sanitary:
e: whether the provision of health care services there has been satisfactorily audited by an auditing agency.
2: An authorised person who believes on reasonable grounds that there is in any place any document, equipment, or device relating to, or used or to be used in relation to, the provision of health care services in any other place may at any reasonable time exercise any of the powers in section 42(1)
a: whether health care services are in fact being provided in the other place:
b: whether health care services being provided in the other place are being provided in compliance with section 9
c: whether health care services being provided in the other place are being provided in a safe and satisfactory manner:
d: whether the other place is safe and sanitary:
e: whether the provision of health care services in the other place has been satisfactorily audited by an auditing agency.
41: Right to monitor certain places
1: In addition to the powers stated in paragraphs (b) to (e) of section 42(1) section 40(1)﻿(a)
a: by a person not certified by the Director-General to provide services of that kind; or
b: in contravention of a cessation order or a closing order.
2: The powers of an authorised person referred to in subsection (1) are the powers to—
a: remain in the place for as long as he or she wishes, in any part or parts of the place he or she wishes to be in; and
b: inspect, investigate, supervise, or watch, any thing, process, or transaction in the place he or she wishes; and
c: record (by audio, film, photograph, video, or any other means of recording) any thing, process, situation, or transaction in the place he or she wishes.
42: Powers of authorised persons
1: The powers referred to in section 40
a: enter and inspect the place:
b: inspect any equipment or device in the place believed on reasonable grounds to be, have been, or be intended to be used in the provision of health care services (whether in the place or elsewhere):
c: take possession of and remove any equipment or device inspected:
d: inspect any document in the place believed on reasonable grounds to relate to the provision of health care services (whether in the place or elsewhere):
e: take or make copies of, or of extracts from, any document inspected; and for that purpose—
i: take possession of and remove the document from the place, for any reasonable period:
ii: in the case of a document stored otherwise than on paper, take any reasonable steps to reproduce, in usable form, any or all of the information in it.
2: An authorised person exercising powers under subsection (1) or section 41(2) constable Section 42(2) amended 1 October 2008 section 116(a)﻿(ii) Policing Act 2008
43: Requirement to answer questions
1: In exercising any of the powers conferred by section 42
a: ascertaining whether the health or safety of people for whom health care services are or may be provided may be at risk; or
b: safeguarding the health or safety of people for whom health care services are or may be provided; or
c: exercising those powers.
2: The person is not required to answer the question if the answer may tend to incriminate him or her.
44: Search warrants
1: An authorised person may not under section 42(1)﻿(a)
a: with the consent of an occupier; or
b: pursuant to a search warrant under this section.
2: A District Court Judge, a Justice, or a court Registrar who is not a constable
a: they are being provided otherwise than in compliance with section 9
b: they are being provided in an unsafe or insanitary manner; or
c: the dwellinghouse is (or the other place is) unsafe or insanitary.
3: The warrant must be in the form Section 44(2) amended 1 October 2008 section 116(a)﻿(ii) Policing Act 2008
45: Warrant to be produced
An authorised person executing a search warrant in respect of any premises must produce it on initial entry, and if asked by an occupier, at any time afterwards.
46: Other duties of authorised persons inspecting premises
An authorised person exercising powers under sections 41 to 43
a: if a person in charge of the place concerned is present on initial entry, must identify himself or herself to the person in charge; and
b: if asked by a person in charge of the place concerned to do so, must produce evidence of identity, evidence of his or her appointment as an authorised person, or both.
47: Notice of entry
1: If, when powers are exercised in any place under section 41 section 42
a: the day and time of entry:
b: the purpose of entry:
c: the name and business telephone number of the authorised person:
d: an address at which enquiries can be made.
2: If the authorised person removed any document, the notice must also contain, or have attached to it, a list of all documents taken, stating where they are being held (and if they are being held in 2 or more places, stating which documents are being held in which place).
47A: Crimes of Torture Act 1989 not limited
Nothing in this Act limits the operation of Part 2 Section 47A inserted 5 December 2006 section 10 Crimes of Torture Amendment Act 2006 Cessation and closing orders
48: Director-General may issue cessation orders
1: The Director-General may have served on any person (the provider
a: services of that kind are being provided, by the provider or under the provider's control,—
i: otherwise than in compliance with section 9
ii: in an unsafe or insanitary manner; or
b: the provider or a person providing health care services under the provider's control has at any time—
i: been convicted of an offence against this Act; or
ii: been convicted of an offence punishable by imprisonment; or
iii: been adjudged bankrupt under the Insolvency Act 2006
iv: become the subject of an order under section 383
c: there is in force in respect of the provider or a person providing health care services under the provider's control an order under the Protection of Personal and Property Rights Act 1988
2: The order must be signed by the Director-General; and must state—
a: why it has been served; and
b: the day on which it takes effect; and
c: that the provider may challenge it in the District Court section 51
3: Unless the Director-General is satisfied that it is necessary in the public interest for the order to take effect earlier, the day on which it takes effect must be at least 21 days after the day on which it is served.
4: The Director-General must take all reasonable steps to ensure that, promptly after the order is served, written notice of the matters stated in subsection (5), and oral notice of those matters in terms appropriate to the abilities and condition of the person given the notice, is given—
a: to every person for whom the provider has currently been providing health care services of the kind concerned (the patient
b: unless that patient's abilities and condition make it unnecessary to do so, to—
i: a person who has been nominated to the provider as the person to be notified in the case of an emergency involving the patient; or
ii: if no person has been nominated or the nominated person cannot immediately be ascertained or found, a member of the patient's family or whanau.
5: The matters are—
a: the fact that the order has been served; and
b: why it was served; and
c: if it was served because the Director-General was satisfied that health care services of the kind concerned were being provided otherwise than in compliance with section 9 Section 48(1)﻿(b)﻿(iii) amended 3 December 2007 section 445 Insolvency Act 2006 Section 48(2)﻿(c) amended 1 March 2017 section 261 District Court Act 2016
49: Director-General may issue closing orders
1: The Director-General may have served on any person (the provider
a: health care services are being provided in the place—
i: otherwise than in compliance with section 9
ii: in an unsafe or insanitary manner; or
b: the place is unsafe or insanitary; or
c: the provider or a person providing health care services in the place under the provider's control has at any time been—
i: convicted of an offence against this Act; or
ii: convicted of an offence punishable by imprisonment; or
iii: adjudged bankrupt under the Insolvency Act 2006
d: there is in force in respect of the provider or a person providing health care services in the place under the provider's control an order under the Protection of Personal and Property Rights Act 1988
2: The order must be signed by the Director-General; and must state—
a: the place to which it relates; and
b: why it has been served; and
c: the day on which it takes effect; and
d: that the provider may challenge it in the District Court section 51
3: Unless the Director-General is satisfied that it is necessary in the public interest for the order to take effect earlier, the day on which it takes effect must be at least 21 days after the day on which it is served.
4: The Director-General must take all reasonable steps to ensure that, promptly after the order is served, written notice of the matters stated in subsection (5), and oral notice of those matters in terms appropriate to the abilities and condition of the person given the notice, is given—
a: to every resident of the place concerned for whom health care services were being provided in the place; and
b: to—
i: a person who has been nominated to the provider as the person to be notified in the case of an emergency involving the resident; or
ii: if no person has been nominated or the nominated person cannot immediately be ascertained or found, a member of the resident's family or whanau.
5: The matters are—
a: the fact that the order has been served; and
b: why it was served; and
c: if it was served because the Director-General was satisfied that health care services were being provided in an unsafe or insanitary manner, or because the Director-General was satisfied that the place concerned was unsafe or insanitary, describing in general terms the alleged deficiencies on which the Director-General relied. Section 49(1)﻿(c)﻿(iii) amended 3 December 2007 section 445 Insolvency Act 2006 Section 49(2)﻿(d) amended 1 March 2017 section 261 District Court Act 2016
50: Director-General may revoke cessation or closing order
The Director-General may revoke a cessation order or a closing order if satisfied that—
a: the reasons for which it was issued no longer apply; and
b: it is unlikely that those reasons will apply again in the short term; and
c: there are no other reasons that would justify the issue of a cessation order or a closing order in respect of the person or place concerned.
4: Miscellaneous
Appeals
51: Rights of appeal
1: A person may appeal to the District Court section 30
2: An auditing agency may appeal to the District Court section 37(1)
3: A person in respect of whom a cessation order or a closing order is served may appeal to the District Court
4: An appeal against a cessation order or a closing order must be brought within 14 days after it is served.
5: The court's decision is final. Section 51(1) amended 1 March 2017 section 261 District Court Act 2016 Section 51(2) amended 1 March 2017 section 261 District Court Act 2016 Section 51(3) amended 1 March 2017 section 261 District Court Act 2016
52: Suspension of cancellation or order
1: At any time after an appeal against the cancellation of a person's certification to provide health care services of any kind has been lodged, the District Court may suspend the cancellation until the appeal has been disposed of, if (and only if) it is satisfied that it is not necessary in the public interest for the person to be prevented from providing health care services of that kind until then.
2: At any time after an appeal against a cessation order or a closing order has been lodged, the District Court may suspend the operation of the order until the appeal has been disposed of, if (and only if) it is satisfied that it is not necessary in the public interest for the person to be prevented from providing health care services of the kind concerned or (as the case may be) using the place concerned until then.
3: A suspension may be unconditional, or subject to any conditions the court thinks fit.
4: The court may at any time cancel the suspension.
5: Except as provided in subsections (1) and (2),—
a: the lodging of an appeal against the cancellation under section 30
b: the lodging of an appeal against a cessation order or a closing order does not affect the operation of the order.
6: The lodging of an appeal against the cancellation under section 37(1) Regulations
53: Regulations
1: The Governor-General may, by Order in Council, make regulations for any or all of the following purposes:
a: prescribing in respect of services that are rest home care, or geriatric services that are hospital care, a means by which there can be ascertained—
i: minimum numbers of nursing and other care staff who must be on duty (at any time, or at different times) in premises in which the care is being provided; and
ii: any minimum qualifications any of them must have:
b: prescribing fees for the purposes of this Act, or a means by which fees for the purposes of this Act may be calculated or ascertained:
c: providing for any other matters contemplated by this Act, necessary for its administration, or necessary for giving it full effect.
2: While there are in force service standards for providing health care services of any kind that state minimum levels of staffing in premises in which services of that kind are being provided, regulations under subsection (1)﻿(a) do not apply in respect of services of that kind.
3: Regulations under this section are secondary legislation ( see Part 3 The following table is small in size and has 3 columns that are grouped under the heading Legislation Act 2019 requirements for secondary legislation made under this section. Legislation Act 2019 requirements for secondary legislation made under this section Publication PCO must publish it on the legislation website and notify it in the Gazette LA19 s 69(1)﻿(c) Presentation The Minister must present it to the House of Representatives LA19 s 114 cl 32(1)﻿(a) Disallowance It may be disallowed by the House of Representatives LA19 ss 115 116 This note is not part of the Act. Section 53(3) inserted 28 October 2021 section 3 Secondary Legislation Act 2021 Offences
54: Offences
1: Every person commits an offence, and is liable on
a: provides health care services otherwise than in compliance with section 9
b: provides health care services of any kind, or controls the provision of health care services of any kind, while a cessation order relating to the provision of health care services of that kind by that person or under that person's control is in effect; or
c: provides health care services in any premises, or controls the provision of health care services in any premises, while a closing order relating to the premises is in effect.
2: Every person commits an offence, and is liable on
a: intentionally obstructs, hinders, or resists an authorised person exercising or attempting to exercise powers under any of sections 41 to 43
b: intentionally fails to answer a question (other than a question whose answer may tend to incriminate the person) asked by an authorised person under section 43
c: when asked a question by an authorised person under section 43, gives an answer the person knows to be false or misleading. Section 54(1) amended 1 July 2013 section 413 Criminal Procedure Act 2011 Section 54(2) amended 1 July 2013 section 413 Criminal Procedure Act 2011
55: Burden of proof in relation to certain matters
In any proceedings for an offence against section 54
a: that at any time a person was certified by the Director-General to provide health care services of any kind:
b: that a person who was in any premises for a continuous period of 24 hours or longer was not then provided with health care services:
c: that at any time premises in which hospital care services were provided were a licensed hospital within the meaning of section 118 of the Hospitals Act 1957:
d: that at any time premises in which residential disability care was provided were a home registered or deemed to be registered under Part 2
e: that at any time rest home care was provided in a home within the meaning of the Old People's Homes Regulations 1987:
f: that at any time rest home care was provided under the authority and in accordance with the terms of a licence granted under the Old People's Homes Regulations 1987. 1957 No 40 s 146
56: Defence for certain agents, contractors, employees, and officers
It is a defence in any proceedings for an offence against section 54(1)
a: in the case of an offence against paragraph (a), did not know that the services were provided otherwise than in compliance with section 9
b: in the case of an offence against paragraph (b), did not know that a cessation order relating to the provision of health care services of that kind by that person or under that person's control was in effect:
c: in the case of an offence against paragraph (c), did not know that a closing order relating to the place concerned was in effect. Limitations on licensing and registration Heading expired 1 October 2004 section 57(4)
57: Limitations on licensing and registration after 30 September 2002
Section 57 expired 1 October 2004 section 57(4) Amendments, repeals, revocations, and savings
58: Consequential amendments
1: The enactments specified in Schedule 2
2: The following enactments are consequentially repealed:
a:
b: Amendment(s) incorporated in the Act(s).
3: The Orders in Council specified in Schedule 3
4: For the purposes of this subsection and the amendments effected by subsections (1) and (3), unless the context otherwise requires,— hospital care institution
a: means premises used to provide hospital care, in accordance with section 9
b: at a time before 1 October 2004, includes a licensed hospital (within the meaning of section 118 of the Hospitals Act 1957) hospital care operator
a: means a person for the time being in charge of providing hospital care, in accordance with section 9
b: at a time before 1 October 2004, includes the licensee of a licensed hospital (within the meaning of section 118 of the Hospitals Act 1957) residential disability care institution
a: means premises used to provide residential disability care, in accordance with section 9
b: at a time before 1 October 2004, includes a home registered under Part 2 residential disability care operator
a: means a person for the time being in charge of providing residential disability care, in accordance with section 9
b: at a time before 1 October 2004, includes the controlling authority of a home registered under Part 2 rest home
a: means premises used to provide rest home care, in accordance with section 9
b: at a time before 1 October 2004, includes a home (within the meaning of the Old People's Homes Regulations 1987) used to provide rest home care under the authority and in accordance with the terms of a licence granted under those regulations rest home operator
a: means a person for the time being in charge of providing rest home care, in accordance with section 9
b: at a time before 1 October 2004, includes the licensee of a home (within the meaning of the Old People's Homes Regulations 1987) used to provide rest home care under the authority and in accordance with the terms of a licence granted under those regulations.
5: The Orders in Council amended by subsection (3) may be amended or revoked as if the amendments effected by that subsection had been effected by Order in Council. Section 58(2)﻿(a) repealed 18 September 2004 section 175(4) Health Practitioners Competence Assurance Act 2003
59: Repeals and revocations
1: The enactments specified in Schedule 4
2: Amendment(s) incorporated in the Act(s)
3: The regulations, orders, and notices specified in Schedule 5
60: Savings
1: The repeal by section 59(1) section 6
2: The Health Reforms (Transitional Provisions) Act Commencement Order 1997 section 26
3: Subsection (2) is for the avoidance of doubt.
61: Statutory references to psychiatric hospitals
After 30 September 2002, a reference to a psychiatric hospital in an enactment must be read as a reference to a hospital within the meaning of the Mental Health (Compulsory Assessment and Treatment) Act 1992
a: psychiatric hospital is defined in or for the purposes of the enactment; or
b: the reference is part of a provision referring to Part 5 of the Hospitals Act 1957.