The health sector, perhaps like no other, impacts on the well-being and safety of the public. For good reason health is a highly regulated industry. Regulatory authorities, together with other government agencies, play a pivotal role in establishing and applying standards and processes underpinning the safe provision of health and disability services. At the same time regulation must be fair, consistent and responsive to the complex needs of health professionals and the public. The stakes are high. Whether the issue involves registration, competence, discipline or other aspects of regulation, an informed and judicious approach is required.
Our lawyers are experts in health regulation. We have been working with regulatory authorities for many years and have an in-depth understanding of the Health Practitioners Competence Assurance Act and related regulatory legislation and public law obligations. We regularly advise on registration, practising certificates, equivalence of qualifications, and practitioner competence and/or impairment. Our lawyers routinely advise on Professional Conduct Committee investigations, and represent both PCCs and practitioners in the Health Practitioners Disciplinary Tribunal. We have appeared in many of the leading cases relating to the operation of health regulatory authorities.
We advise health regulatory authorities on:
- Regulation and professional discipline
- Corporate governance
- Dealing with privacy and information requests
- Employment relationships
- Contracting and procurement
- Judicial reviews and statutory appeals
Examples of work done by Claro lawyers
Interim action to protect the public. We regularly advise on statutory decisions under the HPCA Act to suspend practitioners, or impose conditions, in relation to competence, health and/or conduct concerns. Our lawyers have acted for authorities in challenges to the courts against interim decisions. See for example Cullen v Health Practitioners Disciplinary Tribunal and the Medical Council 28 May 2007, CIV 2007-485-1133 High Court, Auckland, Baragwanath J where a doctor challenged a decision to suspend his practising certificate. A copy of the decision can be found here.
Competence reviews under the HPCA Act. We have advised many different regulatory authorities on all aspects of competence reviews, interim orders, and notifications. This has included drafting terms of reference, assisting reviewers, reviewing draft reports and advising authorities on their statutory decisions made at the conclusion of the review process. We have also advised individual practitioners who are having their competence reviewed. We acted for the Physiotherapy Board in the District Court and then the High Court in the leading decision on competence reviews under the HPCA Act. A copy of the decision can be found here.
Governance processes relating to shared arrangements between regulatory authorities under the Health Practitioners Competence Assurance Act (HPCA). As part of a government initiative, authorities have been working more closely together. We have advised a number of regulatory authorities on shared arrangements including decision-making, sharing costs and other collaborations.
Memoranda of understanding clarifying roles and responsibilities between professional colleges and health regulatory authorities. Professional colleges regularly act as the agent of regulatory authorities for the purpose of assessing the adequacy of prospective registrants. Professional colleges also provide recertification programmes to health practitioners on behalf of the regulatory authorities. We have advised colleges and regulatory authorities on their different but interfacing responsibilities and roles, and have drafted memoranda of understanding addressing such issues.
Advice to health regulatory authorities on the development of information policies. Regulatory authorities are not subject to the Official Information Act, but are statutory decision-makers. The collection and disclosure of information about individual practitioners can be managed under the principles of the Privacy Act, or the relevant provisions of the HPCA Act. However, broader requests for copies of minutes or other information that do not relate to individuals – but which may be relevant to stakeholders – need to be managed consistently by way of policy. We have advised on and drafted policies to assist authorities in dealing with requests for information.
Outsourcing agreement for a regulatory authority. We prepared and negotiated an agreement with an external provider to outsource examination services. This required us to understand the commercial drivers behind the proposed outsourcing, and to determine how best to achieve these within the ambit of the authority’s complex statutory role. Ancillary work on the project included providing advice on the regulatory authority’s statutory obligations to set and modify prescribed qualifications.
Advice to a health regulatory authority on the Medicines Act implications of health practitioners delegating the administration of prescription medicines to unregulated staff members. Concerns had been raised by the professional association about the legality of this. We provided advice confirming that delegated administration was lawful, together with an overview of the statutory framework for administering prescription medicines. We also advised on the need for practitioners to ensure that any delegated administration was carried out by a person who was appropriately skilled, and in a manner likely to minimise harm.
Prosecuting and defending charges laid before the Health Practitioners Disciplinary Tribunal. We have prosecuted on behalf of professional conduct committees of a number of regulatory authorities; in relation to charges for professional misconduct, convictions reflecting adversely on the profession, practising without a practising certificate. We also defend practitioners facing charges before the Tribunal brought by the Director of Proceedings (HDC).
Judicial review of a decision by a regulatory authority to re-open a scope of practice. The authority’s consultation process was challenged and the authority’s powers and limits as an administrative/statutory decision-maker when prescribing scopes of practices/describing professionals was at issue.
High Court statutory appeal on the jurisdiction of the Health Practitioners Disciplinary Tribunal to suspend (or defer) a penalty of suspension imposed on a health practitioner. We represented a professional conduct committee of the Dental Council in successfully prosecuting a dentist for professional misconduct in circumstances where the dentist continued to practise dentistry after being suspended by the Dental Council for safety reasons. The Tribunal imposed an order of suspension of six months, but suspended the commencement of that order for 2 years. The effect of this ‘good behaviour bond’ was that the suspension would only be felt by the practitioner if there was further offending of some kind. We subsequently acted for the professional conduct committee in successfully appealing the decision to the High Court, with the High Court agreeing that the Tribunal did not have jurisdiction to suspend a suspension in this way. A copy of the High Court decision can be found here.
Advice to an authority in relation to an investigation by the Regulations Review Committee (RRC) into a fee Gazetted by the authority under the HPCA Act. The fee was for late applications for practising certificates and was described as a ‘disincentive’. The RRC alleged this was unlawful tax, and in breach of Treasury and Auditor-General’s guidelines. Our lawyers provided advice to the authority and prepared submissions to the RRC. This required detailed knowledge and application of RRC Standing Orders, the HPCA Act, and public sector guidelines. The Board changed the Gazette notice and the RRC discontinued its investigation.
Training we offer
- We regularly run professional educational programmes for health regulatory authorities covering topics such as good decision-making, registration and practising certificates, and competence, health, and conduct.
- We provide induction training for new board members of regulatory authorities. This training includes an introduction to the HPCA Act and other relevant legislation, and guidance on good governance processes, including dealing with conflicts of interest and good decision-making.