The Case for Change

The Case for Change

INTRODUCTION:

Twenty-two health professions are regulated in New Zealand by the Health Practitioners Competence Assurance Act (the Act). Enacted in 2003, the Act was acknowledged as leading edge at the time of introduction. A review in 2009 concluded that the Act was operating largely as Parliament intended. A further review in 2012 was initiated to assess the extent to which the policy settings continue to be appropriate, given changing health services and policies in New Zealand, and considering the developments in health profession regulation in other jurisdictions.

Submitters in the 2012 review process generally considered that the Act remained a robust framework for the protection of public safety.

This document sets out the case for change in some aspects of the delivery of health practitioner regulation in New Zealand. While significant change may be unnecessary, continuing quality improvement is important in a changing environment.

PRINCIPLES TO UNDERPIN EXCELLENT STATUTORY HEALTH PRACTITIONER REGULATION

The United Kingdom government published, in 2007, a document that listed the following principles that should underpin statutory health practitioner regulation [1]:

• The overriding interest should be the safety and quality of the care that patients receive from health professionals.
• Professional regulation needs to sustain the confidence of both the public and the professions through demonstrable impartiality. Regulators need to be independent of Government, the professionals themselves, employers, educators and all the other interest groups involved in health care.
• Professional regulation must be as much about sustaining, improving and assuring the professional standards of the overwhelming majority of health professionals as it is about identifying and addressing poor practice or bad behaviour.
• Professional regulation should not create unnecessary burdens but be proportionate to the risk it addresses and the benefit it brings.
• The regulatory system needs to ensure the strength and integrity of health professionals while being sufficiently flexible to work effectively for the different health needs and health care approaches and to adapt to future changes.

In 2013, the New Zealand Health Regulatory Authorities’ Steering Group charged with developing a shared services organisation model for all New Zealand’s 16 Responsible Authorities (the Steering Group for a Shared Services Organisation) embraced these principles.[2].

Health Workforce New Zealand also endorses these principles. The principles underpin this discussion of the case for change in the Act and its implementation.

THE CASE FOR CHANGE TO HEALTH REGULATION IN NEW ZEALAND

The changing environment

The delivery of health services is not a static business. The Act must maintain its focus on safe practice, but the way it is implemented needs to change over time to meet new challenges and new ways of working. The regulatory system needs to be able to respond consistently and in a timely way to the changes in the work environment of regulated health practitioners, to the ways consumers access services and to consumer expectations about regulation.

The Steering Group for a Shared Services Organisation recognised this. One of its principles stated “We recognise the realities of team-based care and general scopes of practice within the current health system and that health professional regulation needs to evolve as the health workforce evolves.”

The emphasis on “better, sooner, more convenient service delivery” through the integration of primary care with other parts of the health service, is an imperative for the New Zealand health system both in terms of quality of care and of meeting demand growth that is not matched by resource growth.

Such change has implications for the implementation of the Act. The need for better understanding and collaboration between professionals is an important aspect of health service delivery at all levels of the health system. The requirements for team work between practitioners needs to be mirrored in, and supported by, the practices of all Responsible Authorities, including in increased commonality and shared standards between professions.

Sustaining, improving and assuring professional standards

There is a considerable variation across New Zealand’s health regulatory authorities in the extent to which they have embraced the premise that “professional regulation must be as much about sustaining, improving and assuring the professional standards of the overwhelming majority of health professionals as it is about identifying and addressing poor practice or bad behaviour.” The reason for this is at least partly about the disparity of resources available across the range of Responsible Authorities. The need for support for high standards and for safe, quality services does not diminish with the size of the profession. A health regulatory system needs to ensure that resources within the system appropriately address risk.

The variation in approach to work across responsible authorities almost certainly indicates that there is some excellent practice, some good practice, and some practice which could improve. If the health regulatory system is to be as effective as it can be, best practice needs to be adopted through collaboration and sharing of expertise.

Assurance of the impartiality of regulators

It is not possible within current settings of the Act for the Crown to assert with confidence that any or all Responsible Authorities are carrying out their functions as intended and that they rigorously regulate to improve public safety. The establishment of professional regulation under the Act seeks to strike a balance between professional and public-led processes. There is a risk that this balance may not be appropriately maintained and a Responsible Authority may become subject to some level of regulatory capture that affects impartiality.

Jurisdictions overseas tend to provide more scrutiny of their health regulators than occurs in New Zealand. For example, in the United Kingdom, the Health Standards Authority (previously the Council for Healthcare Regulatory Excellence) scrutinises and oversees the organisations that regulate health professionals. For New Zealand, because such an independent body would add significantly to the costs of health practitioner regulation, an oversight body may not be the best solution to assuring the quality of regulation. However, the issue of oversight and assurance remains and an alternative means of assuring the integrity and quality of regulation needs to be sought.

The report of the Steering Group for a Shared Services Organisation[3] states that “The risk of loss of independence is genuine and exists in all regulatory bodies. The risk of regulatory capture - when practitioners gain undue influence over their regulators - is more likely to occur where compliance teams are small and work in relative isolation.”

Confidence in the Act

The Act will be most effective when the existence of the Act and its purpose are well known and the operations of those charged with implementing it are held in high regard by all stakeholders.

Knowledge of the Act

While New Zealand’s Responsible Authorities reflect strong knowledge and understanding of the Act, practitioners sometimes appear not to recognise that the Act’s purpose is essentially outward - on protecting public safety - rather than inward - on the profession itself.

The public generally, and consumers of health services are not well informed about how the Act protects them, how it relates to their health care needs, and what part consumers play in its effectiveness.

Public information about the Act is available on websites of the Ministry of Health and individual Responsible Authorities. The websites tend to have a focus on the information needs of health professionals rather than those of health service consumers. Information in written, plain English is not readily available to the public. The information that is available tends to be fragmented across professions, rather than giving a holistic picture of how the provisions of the Act can respond to consumer needs and concerns.

There is a contrast between the lack of information about the Act and the information users of health services encounter about the Health and Disability Commissioner’s role.

Consistency

Responsible Authorities vary significantly in their practice, even though they are operating under the same statute. They have different approaches to scopes of practice, codes of conduct and statements of cultural competence. Their practices differ in respect of the range of their consultations, their approach to on-going education, release of information, and the expressions of standards even when competencies are common across professions.

Greater consistency would be helpful to consumers or employers and would contribute to increased public understanding of, and confidence in, the regulatory system.

Transparency and Impartiality

As well as knowing that the Act exists to protect the safety of health service users, stakeholders - practitioners themselves, consumers and employers - need to know that their use of provisions in the Act will have timely, consistent and impartial outcomes. They can only have this confidence if there is a level of transparency about the operations of Responsible Authorities that provides evidence of such outcomes.

Currently, there is a low level of transparency and it is hard to judge levels of timeliness, consistency and impartiality. Since Responsible Authorities are not Crown entities, they are not subject to the Official Information Act and stakeholders cannot use this avenue to better inform themselves about the basis for Responsible Authority policies, procedures and decisions.

The Act gives little guidance to Responsible Authorities about transparency. Specific provisions in the Act address natural justice and privacy considerations for both practitioners and complainants in some circumstances. The Act does not disallow greater transparency in other circumstances. The Steering Group for the Shared Services Organisation agreed that Responsible Authorities could contribute to increased public safety by enhancing transparency.

In some cases, the public perceive Responsible Authorities as preserving the interests of their registrants rather than protecting the health and safety of patients. Professor Ron Paterson says in his book “The Good Doctor: What Patients Want”[4] “secrecy risks undermining public confidence in the health profession and disciplinary procedures”. He notes that from time to time, cases still occur where complainants or consumers publicly question the impartiality of the regulators.

Contrast this with the practice of other bodies involved with health practitioner regulation. In the UK, the Professional Standards Authority (UK)[5] provides explicit information about their expectation of health regulators. Regulators’ activities are more transparent than those of New Zealand’s Responsible Authorities, and achieve an appropriate balance between transparency and individual privacy rights. As an example, since 2005, the UK General Medical Council (GMC) has provided a complete history of each medical practitioner’s registration status, including details of any erasure or suspension from the register, and any conditions, voluntary undertakings and warnings that have been set for the practitioner as a result of investigations or hearings. Except where there are privacy issues that outweigh the interest of the public (usually practitioner health issues), the minutes of the panels are available to the public.

The Australian Health Practitioner Regulatory Agency (AHPRA) publishes all its panel decisions (since 2010) with regard to health practitioners. In addition, summaries of findings are provided where there is educational and clinical value. Practitioners names are not published.

In New Zealand, the office of the Health and Disability Commissioner (HDC) publishes its decisions and case notes in full detail, subject to consideration of privacy. The naming of practitioners is subject to a naming policy which gives protection to most individual practitioners without depriving the public of knowledge of the basis of the Commissioner’s decisions. In the case of the Practitioners Disciplinary Tribunal, hearings are public unless there is clear reason why they should not be. Decisions and penalties are published.

There is an international trend towards more public engagement, improved transparency of complaints and complaint processes and transparency of information, with increased interest in protecting the public. New Zealand risks falling behind in this regard.

Cost effective regulation

The cost of occupational regulation is considerable and is borne directly by professionals but indirectly by consumers, employers, service providers and the state.

Having set up health regulatory systems with inherent costs, a Government must be concerned with ensuring that the system is cost effective.

Along with other benefits of a Shared Services Organisation, the Steering Group for a Shared Services Organisation has calculated that a Shared Services Organisation carrying out back office and regulatory functions of all Responsible Authorities is capable of generating significant savings within four years of being established.

SUMMARY

This paper has set out the significant issues that have arisen in the course of the 2012 review of the Health Practitioners Competence Assurance Act 2003. The issues are about sustaining, improving and assuring professional standards across all regulated health professions in a consistent way, as well as ensuring that the public, consumers, employers and professionals have confidence that concerns they raise about professional competence and behaviour are addressed in a way that is consistent, open, and impartial. Lastly, the paper raises the issue of whether there are alternative ways of operating that could reduce the costs of the health regulatory system.

[1]UK White Paper (2007) Trust, Assurance and safety- the regulation of health professionals in the 21st century.

[2] Price Waterhouse Coopers: Health Regulatory Authorities Proposal for a Shared Services Organisation, 12 April 2013 (unpublished).

[3] Price Waterhouse Coopers: Health Regulatory Authorities Proposal for a Shared Services Organisation, 12 April 2013

[4] Professor Ron Paterson, The Good Doctor: What Patients Want, Auckland University Press 2012, p 115

[5] The Professional Standards Authority is the new name of the organisation previously known as the Council for Healthcare Regulatory Excellence