Proposed changes to health practitioner regulation: What members need to know

The New Zealand Government has introduced legislation proposing significant changes to the regulation of health practitioners.

The Health Practitioners Competence Assurance Act 2003 has underpinned the regulation of New Zealand’s registered health professions for more than 20 years. It provides the statutory framework under which the Medical Council and Dental Council register practitioners, issue annual practising certificates, set professional standards and respond to concerns about competence, conduct and health.

Earlier this year, however, the government introduced the Health Practitioners Competence Assurance Amendment Bill. If passed into law, the Bill would make changes to how practitioners are registered, how concerns about competence, conduct and health are managed, and how certain regulatory decisions can be reviewed.

The Government says the reforms are intended to better align workforce regulation with patient needs, health system objectives and wider Government priorities.

However, with the New Zealand Government now in caretaker mode ahead of the election, the Bill is expected to lapse. Whether it is reinstated, and in what form, will depend on the priorities and political makeup of the incoming government.

Despite this, the proposals remain significant. If reintroduced by a future government, they could have important implications for doctors and other health practitioners.

Medical Protection supports regulation that protects patients while remaining fair, proportionate and transparent for practitioners. Below are some of the key proposals likely to be of most interest to members.

Conduct and the right to practise

One of the most significant proposed changes is the greater role that professional conduct could play in decisions about registration and annual practising certificates.

The current legislation already allows some disciplinary and conduct-related matters to be affect registration. The Bill would expand and clarify those considerations, including by expressly referring to inappropriate or otherwise unsatisfactory professional conduct when decisions are made about annual practising certificates.

There is a legitimate public interest in ensuring regulators can consider conduct that may indicate an ongoing risk to patients. However, the proposals also raise questions about proportionality and finality.

A practitioner who has completed a disciplinary penalty could potentially face further consequences arising from the same underlying conduct. Depending on how the legislation is applied, historical conduct could continue to influence regulatory decisions long after a disciplinary matter has been concluded.

Historic events can also become more difficult to assess fairly over time, particularly where records are incomplete, witnesses are unavailable or memories have faded.

In Medical Protection's view, previous conduct should only affect registration decisions where it remains relevant to a practitioner's current fitness to practise or ongoing risk to the public. Practitioners should also have a clear opportunity to understand and respond to concerns before decisions affecting their ability to practise are made.

Interim restrictions before concerns are determined

The Bill would also give regulators broader powers to impose interim restrictions, including suspensions, without giving the practitioner prior notice.

These powers could apply in competence and health processes where the regulator considers there may be a serious risk of harm to the public if the practitioner continues to practise. The practitioner would have an opportunity to be heard as soon as practicable afterwards, but the initial restriction could take effect before the underlying concerns have been fully assessed.

There will undoubtedly be situations where urgent action is necessary to protect patients. However, interim suspensions can have significant consequences even before any findings have been made.

Being prevented from practising can affect a doctor's income, professional development and ability to maintain clinical skills. In some competence cases, suspension may also make it harder for practitioners to demonstrate improvement or participate meaningfully in the assessment process.

International regulatory experience commonly provide mechanisms for urgent action, but often include safeguards such as a hearing and legal representation before an interim order is imposed. Ensuring an appropriate balance between public protection and procedural fairness will therefore be an important consideration as the Bill progresses.

Avoiding duplicated and prolonged processes

The Bill would allow a Professional Conduct Committee (PCC) to recommend that the relevant regulatory authority undertake a further review of a practitioner's professional conduct.

At present, the purpose and limits of that additional review process are unclear.

Without appropriate safeguards, practitioners could potentially face overlapping processes examining substantially the same conduct. While regulatory investigations must be thorough, it is also important that matters reach a timely and final conclusion.

Repeated consideration of the same matters can increase costs, delay outcomes and prolong uncertainty for practitioners, complainants and regulators alike. It does not necessarily lead to better regulatory outcomes or improved patient safety.

For this reason, there should be clarity about when any additional review would be appropriate, what powers would be available and how duplication can be avoided.

Hearings

Another proposed reform would allow some Health Practitioners Disciplinary Tribunal matters to be decided "on the papers" without a full oral hearing.

Where appropriate, this could deliver benefits for all parties. Paper-based determinations may reduce delays, lower costs and lessen some of the personal and professional stress associated with lengthy regulatory proceedings.

Many cases involve largely undisputed facts and may be capable of being resolved fairly without the need for witnesses to attend a hearing.

That said, oral hearings remain important in cases where facts are contested, credibility is in dispute or additional context is required. Any move towards paper-based decision-making should therefore be accompanied by safeguards, including an ability for practitioners to request an oral hearing where appropriate.

A new Review Committee

The Bill would also establish a new Health Practitioners' Review Committee to consider certain registration decisions.

The Committee would be able to review decisions refusing registration, declining changes to a practitioner's scope of practice, or imposing or varying conditions on practice. It could either make its own decision or refer a matter back to the relevant authority for reconsideration.

A more accessible and potentially less costly review pathway could benefit practitioners. For some, it may provide a quicker and more practical alternative to formal court proceedings.

However, the effectiveness of any review body will depend heavily on its independence, expertise and procedural safeguards. Questions will inevitably arise about how the Committee will operate, who will appoint its members and how its decisions will interact with existing appeal rights.

It will also be important to ensure that the new process complements, rather than limits, practitioners' existing rights to seek review through the courts.

The future independence of health regulators

The Bill proposes increased Government oversight of health practitioner regulators.

The legislation would give the Minister of Health powers to issue directions relating to regulatory policies, processes and scopes of practice. While these powers could not be used in relation to individual practitioners or specific registration decisions, they could influence the wider framework within which regulators operate.

Greater transparency and accountability are legitimate objectives and may encourage more consistent decision-making, more efficient registration processes and greater attention to unnecessary barriers to workforce participation. They should not, however, come at the expense of regulatory independence.

At the same time, professional regulation has traditionally relied on a significant degree of independence from political and workforce pressures. Decisions about competence, professional standards and patient safety must be informed by evidence and professional expertise.

Maintaining that independence is critical to public confidence in the regulatory system. Any new oversight arrangements should therefore be carefully designed to ensure that workforce priorities and broader health policy objectives do not undermine the regulator's core public protection role.

What happens next?

With the New Zealand Government now in caretaker mode, the Bill will lapse, leaving its eventual reinstatement and future progress entirely reliant on the political makeup of the incoming government.

While some proposals may improve efficiency, consistency and access to review, others raise important questions about fairness, proportionality and the independence of professional regulation. As the legislative process continues, the detail of how these measures would operate in practice will be critical.

Medical Protection is reviewing the proposed reforms and will continue engaging with stakeholders if and when the Bill progresses. Members who have questions about the reforms or are involved in a regulatory process should contact Medical Protection for advice and support.