To the Health Committee on the Health Practitioners Competence Assurance Bill

Introduction

1.    This is the submission from the College of Nurses Aotearoa (Inc), PO Box 1258, Palmerston North; phone or fax - 06 358-6000; email to admin@nurse.org.nz.

2.    Our representative[s] wish to appear before the committee to speak to our submission. Please contact Professor Jenny Carryer, Executive Director, at the telephone numbers provided in the covering letter.

3.    The College of Nurses Aotearoa Inc (hereafter referred to as ‘the College’) is a professional body of New Zealand nurses from all regions and specialities. We provide a voice for the nursing profession and professional commentary on issues that affect nurses and the health of the whole community.

4.    This submission was drafted by Andrew Jull, HRC Foxley Fellow, for the College of Nurses.  Consultation occurred within the College leadership structures and positions throughout the country.

General

5.    We strongly support the introduction of single regulatory framework for health practitioners. The College believes there will be advantages for the public in having consistent processes and that a single Act will make those processes more transparent.

6.    We support the introduction of the Midwifery Council as a registering authority for health practitioners of the profession of midwifery.

7.    We are very concerned that the Bill does not distinguish, in its use of the term ‘register’ throughout, between enrolled nurses, who must practise under the supervision of a registered nurse, and registered nurses.

8.    We reluctantly support the introduction of the Health Practitioners Disciplinary Tribunal.

9.    We oppose the proposed constitution of the Health Practitioners Disciplinary Tribunal.

10. We support clauses 2-4, 6, 11-14, 34, 50, 61-64, 70, 77-79, 80-83, 91-93, 101, 110-112, 145-146, and 160.

11. We submit amendments, or draw issues to the Committee’s attention, for clauses 5, 7-10, 26, 33, 35, 44, 47-48, 51, 66, 76, 141, 153, 176, and Schedule 1 clause 17.

12. We oppose clauses 84 and 124.

13. We have no view on clauses 15-16, 27-32, 36-43, 45-46, 49, 52-60, 65, 67-69, 71-75, 85-90, 94-100, 102-109, 113-123, 125-140, 142-144, 147-152, 154-159, 177-255, and Schedules 2-7.

Clauses 2, 3 & 4

14. We support the provisions of these clauses.

Clause 5

15. We support the definitions with the exception of the term ‘register’.  Nursing has two levels [1] registered nurses, and [2] enrolled nurses, who must work under the direction and supervision of a registered nurse.

16. The qualifications leading to either registration or enrolment are different, as are the scopes of practice. If the Bill does not recognise that two levels of nursing qualification exist, and that this cannot be dealt with by scopes of practice alone, then enrolled nurses could be entitled to claim they are registered (albeit with a different scope of practice) and thus confuse the public about the actual scope of their practice.  

17. We submit that the clause 5 must include a definition of the term ‘roll’ in addition to the term ‘register’ in order that enrolled nurses are not able to be confused with registered nurses.

18. The addition of the term ‘roll‘ will necessitate reconsideration of the use of the term register throughout the Bill.

Clause 6

19. We support the provision of this clause.

Clause 7

20. We support the general intent of this clause. However, we would like the committee to be aware that, as of 2002, 36 nurses (17 with a doctoral degree related to nursing practice, 19 with a doctoral degree in an area unrelated to nursing practice) in New Zealand are entitled to use the term ‘Doctor’ and the abbreviation ‘Dr.’ by virtue of their having a doctoral degree, such as a PhD.

21. We urge the that nothing under clause 7(1) should prevent the nurses so entitled from using their doctoral title, so long as the intent is not to mislead the public into believing the nurse is a medical practitioner. clauses 7(2) and (3) appropriately protect the public in this respect.

22. We submit that clause 7(1) be amended to include a subclause ensuring that the use of doctoral qualifications by practitioners other than registered medical practitioners be protected. Clause 7(1) could be amended to read

A person may only use names, words, titles, initials, abbreviations, or descriptions stating or implying that the person is a health practitioner of a particular kind if the person is registered as a health practitioner of a particular kind, unless he or she –

a)    has been awarded a degree entitling that person to use an abbreviation or title in addition to that which qualifies him or her to be a registered health practitioner of a particular sort, and

b)   that the person only performs health services that are permitted by his or her scope of practice.

23. In general, we support the intent of clause 7(4) and the need to punish those that misrepresent themselves to the public. However, we do not believe a fine of $10,000 is adequate to cover both misrepresentation, as well as fraudulently practising a health profession.

24. A fine of up to $10,000 may be adequate in cases where people have misrepresented themselves as health practitioners. However, in recent years, people have portrayed themselves, and practised, as health practitioners, when they have held no qualification. A fine of $10,000 is not an adequate maximum for this offence. If $10,000 is to the maximum for this type of offence, then the judiciary will be forced to set a lesser fine for offences that simply involve misrepresentation.

Clause 8

25. In general we support the provisions of this clause because the College believes the public has a right to protection from harm by un- and under-qualified health practitioners. However, with respect to subsection (4), we do not believe a fine of up to $10,000 is sufficiently large to punish those who, intentionally or otherwise, practise outside their endorsed scope of practise.

Clause 9

26. In general we support the provisions of this clause as the College recognises the necessity of a mechanism by which new categories of professions can be added to the Act. However, with respect to subsection (5), we do not believe a fine of up to $10,000 is sufficiently large to punish those who, intentionally or otherwise, practise outside their endorsed scope of practise.

Clause 10

27. Although we strongly agree with the general intent of clause 10, we believe that subsection (2) could be too prescriptive. The College believes that it is unnecessary to list the means by which a scope of practice may be defined. It is generally accepted that professions are knowledgeable about their own practice and have the right to define their practice. For instance a widely employed definition of nursing is

The unique function of the nurse is to assist the individual, sick or well, in the performance of those activities contributing to health or its recovery (or to peaceful death) that he or she would perform unaided if they had the necessary strength, will or knowledge. And to do this in such a way as to help him or her gain independence as rapidly as possible.¹

Therefore, patient care delivered by nurses is not driven by medical diagnoses, but by nurses’ assessments of each patient’s nursing needs. For instance the medical diagnosis of cerebro-vascular accident (stroke) does not drive the nursing care provided for a person incapacitated by stroke. It is nurses‘ assessment of what each patient requires – this many range from protection of their airway because of loss of consciousness through to feeding because of an inability to control swallowing or move their limbs, to teaching means of protecting limbs affected by loss of feeling.

As can be discerned from the above, nursing has engaged in considerable effort to define its own practice, nursing practice is not driven by simple tasks, body systems, or illnesses or areas of learning. The suggested means of defining a scope of practice in clause 10(2) are unnecessary and the College believes that most if not all health professionals will find this to be the case.

28. We therefore submit that clause 10(2) be amended to read simply ‘A scope of practice may be described in anyway the authority thinks fit.’

Clause 11

29. We support the provisions of this clause. We applaud the recognition there are different routes to attain particular scopes of practice, and that educational providers require monitoring. In particular we welcome the provision that enables registering authorities to accredit and monitor overseas providers.

Clause 12

30. We support the provisions of this clause. In particular we strongly support the principle that registration is necessary to protect the public, not to protect the commercial or business interests of a profession.

Clauses 13 & 14

31. We support the provisions of these clauses and particularly welcome the recognition of the Internet as a vehicle for dissemination of information to the public and to health practitioners.

Clause 15

32. The College does not have a view on the provisions contained in this clause.

Clauses 16 – 25

33. The College does not have a view on the provisions contained in these clauses relating as they do to the administration of the regulatory process.

Clause 26

34. The College wishes to register concern with wording of subsection 26(1)(e). The phrase ‘lawfully practised the profession’ is vague and may relate to either [a] no action having succeeded against a practitioner in the preceding 3 years, or [b] no action having been taken against a practitioner in the previous 3 years, or [3] or a meaning to be defined by the registering authorities as they will.

35. We submit that the phrase ‘lawfully practised the profession’ needs to be defined.

Clauses 27 – 32

36. The College does not have a view on the provisions contained in these clauses relating as they do to simple administration of the regulatory process.

Clause 33

37. In general we support the provisions of this clause, and in particular -

a)    Welcome subsection (1) that reporting of one health practitioner by another health practitioner will be voluntary

b)    Support the requirement that the Health and Disability Commissioner report to the registering authority a health practitioner who may pose a risk of harm to the public by practising below the required standard.

38. However, the College has reservations about subsection (3). This subsection requires the person who employed a health practitioner that was dismissed for, or who resigned, for incompetence, to notify the registering authority of the reasons for their dismissal or resignation. We support the provision requiring notification, but believe the current provision is ambiguous as to who the person employing the health practitioner is, when the employer is a large organisation such as a hospital. Unless this responsibility is clearly articulated, the current provision could refer to the former employee’s immediate superior, the chief executive officer of the district health board, or any person in between.

39. We urge the Committee to clarify the meaning of the phrase ‘person who employed the employee immediately before resignation or dismissal …’

Clause 34

40. We support the provisions of this clause as the College believes information sharing when a health practitioner may pose a risk of harm to the public is essential to maintaining the social contract between health practitioners and the public.

Clause 35

41. In general we support the provisions of this clause. However, some complaints brought under clause 33 may be frivolous, trivial or even vexatious. We therefore urge the Committee to consider the inclusion of a subsection, similar to the provisions of s37(1) of the Health and Disability Commissioner Act (1994) that recognises where a compliant is vexatious, trivial or frivolous, a registering authority may chose to proceed no further with the complaint.

Clauses 36 - 43

42. The College does not have a view on the provisions contained in these clauses relating as they do to simple administration of the competency review process.

Clause 44

43. In general we support the mandatory requirement that health practitioners notify their registering authority where they believe a colleague is unable to perform the functions of their profession because of a mental or physical condition.

44. However, with respect to subsections (4) and (5), the registering has no authority over students in pre-registration programmes until they seek to be registered by the authority. Educational institutions have jurisdiction over a student’s continued enrolment in pre-registration courses under s224(13) of the Education Act (1989), not the registering authority.

45. The College recognises that the requirement to notify registering authorities of a student’s mental or physical incapacity is motivated by the need to keep registering authorities informed about a student’s fitness for registration as a health practitioner. However, such notification may take place in the student’s first year of training, and the student may not present for registration for several years. Nothing in the Bill provides that the student be notified that the registering authority is in receipt of information about them, or facilitates for timely resolution or redress with respect to that information. The student may proceed with their education for several years before they learn that the registering authority holds information, which may or may not disadvantage them.

46. Although s224(13) of the Education Act (1989) enables an educational institution to cancel a students’ enrolment on ‘grounds that the person is not of good character’, there is no definition of the meaning of good character, and in practice what is considered good character within the context of an educational institution, may not be as stringent as the requirements of a registering authority. Decisions as to whether a student should continue in a programme are often made by academic committees, which may not have the relevant health practitioners in their membership. In a yet to be published survey, more than half the nursing schools reported they had students who had continued in programmes despite being judged by registered nurses to pose a harm to the public.²

47. We submit, therefore, that the clause be amended by removing subsections (4) and (5), and that Schedule 4 include an amendment to s224(13) of the Education Act (1989), and that this amendment read

Nothing in this section shall prevent a Council of an institution from refusing to permit, or from cancelling, the enrolment of a person as a student of the institution, or in a particular course of study or training at the institution, on the ground that-

a)    The person is not of good character; or

b)   The person is unlikely to meet the criteria for occupational registration; or

c)    The person has been guilty of misconduct or a breach of discipline; or

d)    The person is enrolled for full-time instruction in another institution or in a school; or

e)    The person has made insufficient progress in the person's study or training after a reasonable trial at the institution or at another institution.

48. Amendment of s224(13) of the Education Act (1989) may require consideration be given in the Bill to other sections of the Education Act (1989), especially with respect to appealing decisions made by the Council of an educational institution.

Clauses 45 & 46

49. The College does not have a view on the provisions contained in these clauses relating as they do to simple administration of the notification process.

Clause 47

50. In general we support the requirement that health practitioners may be required by the registering authority to submit to an examination of mental or physical fitness to practice. However, we do not agree that a medical practitioner is always the appropriate person. For instance, in circumstances of physical incapacity, an examination by a physiotherapist, or an occupational therapist may be more appropriate than examination by a general practitioner. In more specific circumstances, a health practitioner may require detailed assessment by a specialist in a specific area, such as a medical practitioner specialising in aviation medicine (with respect to flight nursing).

51. By requiring a medical practitioner to conduct the examination, the Bill is failing to ‘futureproof’ itself. Increasingly, nurse practitioners will start practising in areas where general practitioners are unavailable and many other acute locations as well. Outcomes for patients have been shown to be no different in clinical trials, whether a nurse practitioner or a general practitioner has cared for patient.^{3 4 5} . In a similar vein, utilising clinical psychologists in the future if psychiatrists continue to be difficult to employ may be an acceptable option, in addition to providing valuable input into an understanding of the mental well-being of a practitioner. The Bill fails to recognise the changes in health care that are forthcoming and is not sufficiently flexible enough to require full and proper assessment of a health practitioner, unless this clause is amended.

52. We submit that the clause be amended to read ‘appropriate practitioner’ wherever the term ‘medical practitioner’ is employed.

Clause 48

53. In line with our comments on the clause 47, we submit that clause 48 also be amended to read ‘appropriate practitioner’ wherever the term ‘medical practitioner’ is employed.

Clause 49

54. The College does not have a view on the provisions contained in these clauses relating as they do to administration of revocation of suspensory orders or conditions of practice.

Clause 50

55. We strongly support the provisions of this clause because the College believes that the extension of legal privilege to quality assurance activities is necessary to ensure a learning culture is established throughout the health care system, rather than a blaming culture. Furthermore we welcome the extension of legal privilege to cover health practitioners on whom it was not previously conferred.

Clause 51

56. In general we support the need to define quality assurance activities, but oppose the definition of such activities proposed in subsection (1), as it excludes the investigation of specific significant incidents.

57. Most, if not all, health care systems will currently have quality assurance activities in place, and many of these systems will incorporate mechanisms for reporting adverse events. A comprehensive assessment of an adverse event, and the circumstances that lead to the event, is necessary in order to understand what were the root causes of the event, and how to ensure that the recurrence of such an event is minimised. Such an assessment cannot proceed in an environment of suspicion; if health practitioners are to provide completely candid assessments, they must be able to do so in a way that protects their confidentiality. If health practitioners cannot do so, then a major component of current risk management systems will be lost.

58. The definition of a ‘specific significant incident’ within subsection (1) is extremely broad. Many adverse events, no matter how minor, could become subject to an inquiry by the Health and Disability Commissioner. The Health and Disability Commissioner is required to investigate all complaints.

59. We understand the necessity to ensure that practitioner’s accountability for health care is maintained. However, the necessity for accountability must be balanced against the recognition that errors can be learnt from, if errors are candidly discussed. We believe that health care consumers must have a vehicle for independent inquiry into their concerns, but the Health and Disabilities Commissioner provides such a vehicle. But if health care is to learn from its mistakes, health practitioners must have a legally privileged arena in which they can openly discuss and learn from their errors.  

60. We submit that the definition of quality assurance activity under subsection (1) be amended to read

Quality assurance activity means an activity that consists of, or includes, or results in, an assessment or evaluation of any health services provided by a health practitioner (whenever those services are or were provided), where the assessment or evaluation is carried out for the purpose of improving the practices or competence of the health practitioner; and, without limiting the generality of the foregoing, includes—

(a)   Any study of the incidence or causes of conditions or circumstances that may affect the quality of health services provided by a health practitioner:

(b)  The making of recommendations about the provision of such services as a result of such an assessment, evaluation, or study:

(c)   The monitoring of the implementation of any such recommendations. 

Clauses 52 - 60

61. The College does not have a view on the provisions contained in these clauses relating as they do to administration of quality assurance activities.

Clauses 61 - 64

62. We support the provisions of these clauses, as the College believes that sharing of information by the registering authorities, Health and Disability Commissioner and the courts is essential to protection of the public from the potential for harm.

Clause 65

63. The College does not have a view on the provisions contained in this clause relating as it does to administration of complaints.

Clause 66

64. We support the provisions of this clause because [a] because the provisions are sufficiently flexible, and [b] it may be necessary to suspend a health practitioner’s practising certificate during an investigation, if the seriousness of the complaint and the opportunity for continued harm is apparent. 

65. The College’s support for this clause is subject to health practitioners so suspended, or who have had conditions placed upon their scope of practice, continuing to have the opportunity to appeal such orders in a District Court, as laid out under clause 101. The College believes that appeal to a District Court will ensure legal costs are kept at a lower level than would be the case if all appeals were to be to the High Court.

Clause 67

66. The College does not have a view on the provisions contained in this clause relating as it does to registering authorities taking no action while the Health and Disability Commissioner investigates complaints.

Clauses 68 & 69

67. The College does not have a view on the provisions contained in this clause relating as it does to the constitution and procedural regulation of complaints investigation committees.

Clause 70

68. We support the provisions of this clause, as a complaints investigation committee is likely to require legal advice from time to time. We especially welcome the provisions of subsection (4) as they protect the complaints investigation committee and the legal advisor from accusations of self-interest.

Clauses 71 - 75

69. The College does not have a view on the provisions contained in this clause relating as it does the administration of the complaints investigation committee.

Clause 76

70. We support the need for complaints investigation committees to be able to recommend suspension of a health practitioner’s practising certificate. However, the College believes the threshold of ‘a risk of harm’ is too low. Arguably, every health practitioner poses a risk of harm to the public, as any practitioner can make an error that may lead to a patient being injured in some manner.

71. We submit that clause 76 be amended to read

If, at any time in the course of investigating a matter about a health practitioner, a complaints investigation committee has reason to believe that the practitioner’s practice poses a risk of serious and imminent harm to the public, the committee- …

Clauses 77- 79

72. We support the provisions of these clauses as they allow the complaints investigation committees considerable flexibility in recommending courses of action.

Clauses 80-83

73. We support the establishment of the Health Practitioners Disciplinary Council.

74. We, regretfully, have come to accept the view that self-regulation of professions by professions is regarded by the public and its representatives with scepticism.

75. We wish to acknowledge the role of the Nursing Council of New Zealand and believe the Council has been

a)    Effective in its disciplinary function, with relatively few of its decisions being challenged in the High Court, and when the Council’s have been appealed, the Court has usually upheld the judgement of the Nursing Council.

b)    Efficient at providing a disciplinary function, as costs have been kept to approximately $3.00 per annual practising certificate.

76. We believe that establishing a multidisciplinary tribunal will incur additional costs to nursing, but accept that smaller professional groups, who may not have many opportunities to develop skills with respect to disciplinary functions, will benefit from the formation of the Tribunal.

Clause 84

77. We oppose the provisions of this clause, as the College believes the health profession on the Tribunal should be in majority.

78. While we unreservedly support the inclusion of lay members on the Tribunal, we believe a lay majority will adversely affect the quality of decisions. The profession of nursing is beset with stereotypes. Nurses are perceived by the public as

a)    handmaidens to doctors, with a duty to obey doctors; or

b)    angels of mercy who can do no harm; or

c)    simply domestic workers who clean up after people.

79. All of these stereotypes have provided nurses with successful defences against legal suit [Gregory v Ferro (GB) Ltd and Others (1995) 6 Med LR 321; Lahey v St Joseph’s Hospital (1992) 123 NBR (2d)], protected them from the adverse comment during coronial inquiries,⁶ and during commissions of inquiry.⁷ Therefore misperceptions of nursing can be employed to nurses’ legal advantage, when non-nurses adjudicate on nursing care.

80. Where nurses are scrutinised by nurses, stereotypes fail. The Nursing Council of New Zealand has had a single appeal found against it, with respect to disciplinary decisions. Similarly, the Health and Disability Commissioner relies upon the advice of health practitioners when determining whether the Code of Health and Disability Services Consumers' Rights has been breached. Nurses understand the scope of their practice, what are reasonable expectations of other nurses and where there has been breach of duty. If the Health Practitioners Disciplinary Tribunal is to have a lay majority, then decisions could be determined stereotypes rather than actual breaches.

81. We submit that three health practitioners should represent the relevant profession when a tribunal is convened.

Clauses 85-90

82. The College does not have a view on the provisions contained in these clauses relating as they do to the administration of disciplinary processes.

Clause 91

83. We strongly support the provisions of this clause, being cognisant of the deliberations of Baragwanath J in Director of Proceedings v Nursing Council of New Zealand (1999) 3 NZLR 360 and his Honour’s particularly trenchant quotation of the philosopher, Jeremy Betham:

Publicity is the very soul of justice. It is the keenest spur to exertion, and the surest of all guards against improbity. It keeps the Judge . . . while trying, under trial.  

Clause 92

84. We support the provisions of this clause. Although, in general, we support the principle that legal proceedings should be conducted in public, the College acknowledges that occasions may arise where proceedings, in whole or in part, should take place in private in order to protect one or all of the parties.

85. The College believes that conducting proceedings, in part or in whole, should be the exception rather than the rule. It is our view that Director of Proceedings v Nursing Council of New Zealand (1999) 3 NZLR 360 has provides sufficient direction to enable a Tribunal to balance the competing interests of privacy and public scrutiny.

Clause 93

86. We support the provisions of this clause. Although, in general, we support the principle that legal proceedings should be conducted in public, the College acknowledges that occasions may arise where proceedings, in whole or in part, should take place in private in order to protect one or all of the parties.

Clause 94 - 100

87. The College does not have a view on the provisions contained in these clauses relating as they do to the administration of Health Practitioners Disciplinary Tribunal.

Clause 101

88. We support the provisions of these clauses, as appealing registering authority and complaints investigation committee decisions to a District Court will keep legal costs at minimum, whilst appealing Tribunal decisions to the High Court will ensure the quality of such decisions is appropriately scrutinised.

Clauses 102 - 109

89. The College does not have a view on the provisions contained in these clauses relating as they do to the administration of appeals and powers of the courts.

Clause 110

90. We strongly support provisions of subsection (2) of this clause providing for the establishment of the Midwifery Council. The College does not have a view on the provisions of subsections (1), (3) or (4).

Clauses 111 & 112

91. We support the provisions of these clauses, as we believe it is necessary to have processes for establishing new authorities as the need arises, and criteria for determining whether such establishment is necessary.

Clauses 113 - 123

92. The College does not have a view on the provisions contained in these clauses relating as they do to the status and function of registering authorities.

Clause 124

93. We oppose the provisions of this clause as it stands. In general, the College recognises and supports the need to have an arbitration process with respect to disputes over scopes of practice. However, the provisions fail to recognise that scopes of practice may legitimately overlap. The practice of nursing can overlap with that of many other health practitioners, in certain instances. For instance, neonatal nurse practitioners undertake activities that were once the role of house surgeons and registrars (junior doctors). Failure to allow for this overlap in scopes of practice will threaten the safety of neonates, because adequate numbers of junior doctors will not be available to cover the gap the Bill may create.

Clauses 125 - 131

94. The College does not have a view on the provisions contained in these clauses relating as they do to administration of fees and levies raised by the registering authorities.

Clauses 132 - 140

95. The College does not have a view on the provisions contained in these clauses relating as they do to administration of registers by the registering authorities.

Clause 141

96. In general we support the provisions of this clause, but believe the requirement in subsection (2) that the Registrar must await the direction of the registering authority to restore an entry that has been cancelled in error engenders unnecessary bureaucracy.

97. We submit that subsection (2) be amended to read ‘On the written application of a person to whom this section applies, the Registrar of the responsible authority must restore the entry relating to the person.’

Clauses 142 - 144

98. The College does not have a view on the provisions contained in these clauses relating as they do to administration of registers by the registering authorities.

Clauses 145 - 146

99. We support publication of registers and information being available in electronic form. However, the College is concerned that the Bill allows the registering authorities only to publish the information when they see fit. Registering authorities may simply publish the information once, and not update that information.

100.      We believe the subsection (1) should be amended to requiring the registering authorities to make an updated register available at least annually.

Clauses 147 - 152

101.      The College does not have a view on the provisions contained in these clauses relating as they do to administration of the Act.

Clause 153

102.      In general we support the provisions of this clause. However it is the College’s view that publication of orders serves two purposes: first, to put information about the proceedings in the public domain, and second, to enable a profession to learn from the actions of its members. We believe the second purpose is one a responsibility of registering authorities can neglect. Individual practitioners can only learn when adequate information is in the public domain. Protecting individual identities does not preclude a full publication of events surrounding a disciplinary proceeding. The website maintained by the Health and Disability Commissioner provides exemplary evidence of what can be achieved.

103.      We urge the Committee to consider the clause be amended so that publication of orders provide a full summary of the findings to facilitate a profession’s development, as well as the need for orders to be public.

Clauses 154 - 159

104.      The College does not have a view on the provisions contained in these clauses relating as they do to the transitional provisions.

Clause 160

105.      The College supports the provisions of this clause subject to concerns raised with respect to clause 176 being addressed.

Clauses 161 - 175

106.      The College does not have a view on the provisions contained in these clauses relating as they do to the transitional provisions.

Clause 176

107.      We understand that the provisions of this clause are to facilitate the transition from the current state to the addition of the Midwifery Council. However we wish to draw the Committee’s attention to the fact that many midwives have dual registration.  4242 nurses also had midwifery qualifications according to the lastest data from the Nursing Council (2002 Annual Practising Certificate data).⁸ Only 495 (10%) of the 4737 registered midwives had a midwifery qualification alone.

108.      Only about half (47%) of registered midwives were working as midwives.⁹ The other registrants were working in areas as diverse as district nursing, emergency nursing, critical care, and practice nursing. The provisions of clause 176 mean those nurses and midwives with dual registration will deemed to be registered with Midwifery Council, irrespective of whether they are practising as nurses or midwives.

109.      We submit that clause 176 must be amended to ensure that those recognise with dual registration be recognised as such by the Bill.

Clauses 177 - 255

110.      The College does not have a view on the provisions contained in these clauses relating as they do to the transitional provisions.

Schedule 1 clause 17

111.      In general we support the provisions of this clause as it is appropriate that the Tribunal receive additional expert support as required. However, we do not believe that the Tribunal should be limited to being only able to call legal and medical assessors. In particular, we are concerned that the term ‘medical’ is undefined within the Bill. The term could be employed to narrowly define matters as only those that relate to the practice of medicine. On the other hand, the term can be employed quite broadly to relate all manner of matters encountered in the field of health care. It is the latter use that concerns the College.

112.      It is presumed that the requirement for legal and medical assessors is to anticipate occasions when the Tribunal may lack expertise in the area[s] being considered. In a system that relies upon the discipline of the health practitioner being scrutinised to supply 2 members of the Tribunal, and the other members to be lay, of from the legal profession, it likely many such occasions may arise. Increasingly health care is becoming fragmented by subspecialties in all practices, whether they medical, nursing or physiotherapy. It is unlikely that the pool of members in a discipline available to perform on a Tribunal will represent all the subspecialties within a discipline. Therefore, a Tribunal should be able to call upon support from the subspecialties, in the form of an appropriate assessor.

113.      We submit that Schedule 1, clause 17, subsection (2) be amended to read

The Tribunal may form time to time appoint an appropriate assessor, who subject to subclause (3), may-

a)    Be present at any hearing of the Tribunal; and

b)    At any time advise the Tribunal on matters appropriate to his or her practice discipline.

Schedule 2

114.      The College does not have a view on the provisions contained in Schedule 2 relating as it does to the continuation of existing regulatory authorities.

Schedule 3

115.      The College does not have a view on the provisions contained in Schedule 4 relating as it does to the administration of regulatory authorities.

Schedule 4

116.      With the exception of matters discussed in points 36-41 in this submission, the College does not have a view on the provisions contained in Schedule 4 relating as it does to the amendment of Acts.

Schedule 5

117.      The College does not have a view on the provisions contained in Schedule 5 relating as it does to the amendment to the Accident Insurance Act 1998.

Schedule 6

118.      The College does not have a view on the provisions contained in Schedule 6 relating as it does to the amendment to regulations.

Schedule 7

The College does not have a view on the provisions contained in Schedule 7 relating as it does to Acts repealed.

References

1.    Henderson V. The nature of nursing. NY: Macmillan. 1966.