The Health Practitioners Competence Assurance Act 2003 (the Act) provides that oral health practitioners may have their competence reviewed at any time or in response to concerns about their practice.
This could be in response to a concern or complaint raised by:
- a patient
- a colleague
- an employer
- the Ministry of Health
- the Accident Compensation Corporation
- the Health and Disability Commissioner.
Unlike other jurisdictions, a concern about a practitioner’s competence is not dealt with in New Zealand as a disciplinary matter. Charges are not brought against a practitioner, nor does Council seek to establish guilt or fault. It is not a punitive process. It is designed to review, remediate and educate.
What is a competence review?
The objective of a competence review is to assess your competence and, if a deficiency is found, to put in place the appropriate training, education and safeguards to assist you to meet the required standards while ensuring you are safe to practise. It is a supportive and educative process.
It is not designed to investigate a specific complaint, though complaints may trigger a review, and guide its focus. It is not normally a re-examination of knowledge or skill. It is an assessment of performance in actual practice.
A competent practitioner is one who applies knowledge, skills, attitudes, communication and judgement to delivering appropriate oral health care within the scope of practice in which they are registered.
Reasons for a competence review
In considering whether to undertake a competence review, we consider that the following factors increase the probability of an underlying competence deficit and are likely, in combination or on their own, to lead to a competence review:
- a pattern of poor standards of care or competence; that is, several instances, or one instance over a sustained period
- the mistakes are of serious magnitude, including the possible degree of serious departure from normal safe and accepted standards of practice
- the practitioner belongs to an 'at risk' group. This includes practitioners working in a professionally isolated environment (for example, working alone in private practice and/or not affiliated with any professional body) and those working at the outer boundaries of, or beyond, their scope of practise.
A competence review is one of the actions that may result from a notified concern. Read more about what we do when we are notified of concerns.
The competence review process
When we receive a notification or expression of concern about a practitioner’s competence, it is reviewed in the first instance by the Registrar together with a professional advisor, our Legal Advisor and the Deputy Registrar. If they consider the expression of concern to be a frivolous or vexatious complaint by another practitioner, it may be referred to Council, together with any relevant information for consideration. In the event that Council determines the concern to be frivolous or vexatious, a letter will be written to the practitioner who raised the concern, explaining Council’s decision.
Having received notification of a competence concern which is not considered frivolous or vexatious, we are obliged by the Act to undertake initial inquiries into the practitioner’s competence. Inquiries are generally completed by one of Council’s professional advisors.
Although initial inquiries may be undertaken “on the papers”, the professional advisor usually seeks comment from the practitioner in question and may seek comment from other agencies before undertaking a practice visit to meet with the practitioner. Typically, the complaint which led to the notification of a competence concern will be discussed and the relevant records reviewed.
The professional advisor will then write a report to Council.
The Council consideration
The Council considers the professional advisor’s report together with any other pertinent information, including the original notification or expression of concern about the practitioner’s competence and makes its determination. It may decide:
- there is no concern about the practitioner’s competence and no further action is warranted, or
- the notification or concern indicated a single mistake or error was made by the practitioner, but there was no evidence that the practitioner was practising below the required standard of competence. In such a case the Council may decide that an individual recertification programme be implemented to ensure such an error or mistake is not repeated, or
- that a review of the practitioner’s competence be ordered.
Once a competence review has been ordered by Council, it appoints the competence review committee (CRC) and determines the terms of reference for the review. The practitioner is advised of Council’s decision, is sent a copy of the terms of reference under which the review will be conducted, and given the opportunity to object to the appointment of any committee member.
We advise the practitioner that we are carrying out a competence review. We tell the practitioner:
- the substance of the concerns, and the grounds on which we have decided to carry out a review
- any information we have that is relevant to the practitioner’s competence
- the terms of reference for the competence review
- the proposed CRC membership.
The practitioner can give us a written submission, or ask to be heard, on the nature of the planned review, and on committee membership. They may request a change of committee membership if they think there may be a conflict of interest or lack of expertise to review the specific practice.
The practitioner can be heard in person, or through a representative. If the practitioner is heard in person, they are entitled to have a support person with them.
The terms of reference provide a summary of why the competence review is being carried out, the scope of the review and the recommended assessment methods to be used.
Most reviews are focussed on particular areas of concern, but the terms of reference may be wider if we suspect a more general competence problem.
The CRC will be comprised of a lay-person and two professional peers of the practitioner. Where a practitioner raises a legitimate concern about the membership, for example a conflict of interest, about the participation of a committee member, another member will be substituted. Competence review committee members must sign a confidentiality agreement.
If Council determines the practitioner should undergo a competence review it will also consider whether any interim orders should be made.
Where Council considers the practice of a practitioner may pose a risk of harm to the public, it is obliged by the Act to give notice of its belief to:
- the Director-General of Health
- Accident Compensation Corporation
- Health and Disability Commissioner
- any employer of the practitioner.
We will provide a copy of the notice to the practitioner.
Where Council considers it has reasonable grounds for believing the practitioner may pose a risk of serious harm to the public by practising below the required standard of competence, it may make an interim order by:
- suspending the practising certificate of the practitioner;
- restricting the practitioner's scope of practice; or
- including conditions on the practitioner’s scope of practice.
Before making an interim order, Council must inform the practitioner why it is considering doing so, and give the practitioner a reasonable opportunity to make written submissions and be heard on the matter.
Usually, an interim order remains in place until the competence review has been completed and an outcome determined.
When Council determines that the practitioner no longer poses a risk of harm to the public, a further notice will be sent to those who received the original, advising them accordingly.
Council’s risk of harm threshold policy provides an explanation about when a practitioner may pose a risk of harm or when there are reasonable grounds for believing a practitioner may pose a serious risk of harm to the public.
The day of the review
The competence review committee visits the practitioner in the practitioner’s practice. This will be arranged in advance, by the chair of the committee with the practitioner. Generally, the practitioner can expect the onsite part of the review to last at least one day The practitioner is entitled to have a support person present.
The review may involve direct observation. Wherever possible, the committee uses carefully developed and standardised tools to assess performance.
The committee’s review may include clinical practise, clinical management, practice systems, record keeping, prescribing, and communication skills. The review is limited to particular areas of concern unless there are indicators of a general competence problem.
The committee’s terms of reference will instruct them to notify Council immediately, should they form the view that there are reasonable grounds to believe the practitioner poses a risk of harm or serious harm to the public, by practising below the required standard of competence. Should they do so, then the process outlined in the Interim orders section applies.
After the review
The review report
Following the visit of the committee, the chair, in consultation with the other committee members will write a report to Council, detailing the committee’s findings. It will determine whether the practitioner is in its opinion, practising at the required standard of competence, and if not, it may make recommendations to Council.
Council sends a copy of the draft report to the practitioner for comment on factual accuracy, following which it is finalised.
Outcomes of competence review
The committee’s report is submitted to Council, together with the original notification, the professional advisor’s report and any other relevant information, for consideration.
Council then consider all the information before it and decides what, if any action to take.
It may determine that the practitioner meets the required standard of competence and take no further action.
If Council has reason to believe that the practitioner fails to meet the required standard of competence, it is required under section 38 of the Act to make one or more of the following orders:
- that the practitioner undertake a competence programme
- that one or more conditions be placed on the practitioner’s scope of practice
- that the practitioner undertake an examination or assessment
- that the practitioner be counselled or assisted by one or more nominated persons.
Undertaking a competence programme
A competence programme is an individualised educational programme that may require the practitioner to do any one or more of the following, within a specified period or at specified intervals:
- pass any examinations or assessments, or both
- complete a period of practical training
- complete a period of practical experience
- undertake a course of instruction; permit another practitioner specified by Council to examine his or her clinical records
- undertake a period of supervised practice.
We tell the practitioner when they must comply with the requirements of a competence programme. We design individual educational programmes and appoint clinical supervisors and mentors, where appropriate.
The objective of a competence programme and the other orders that may be made by Council is to produce the best possible outcome for the practitioner, while keeping the public safe.
You have the right of appeal
A practitioner has a right of appeal to the District Court when we impose conditions on their scope of practice or suspend their registration or practising certificate.
Confidentiality of information
CRC members will keep information confidential
Competence review committee members are required to sign a confidentiality agreement that they will not reveal or release any personal or health information about the practitioner, the practice, or patients, except as legally required during the course of the review.
Anything you tell the CRC or the Council is confidential
The Act restricts the use of any information, statement or admission about a practitioner's conduct that the practitioner discloses as part of a competence review or competence programme. In particular, no such information, statement or admission:
- may be used or disclosed for any purpose other than for that particular review or programme; or
- is admissible against that practitioner, or any other person, in any proceedings in any court or before any person acting judicially.
The Council meets the costs of a competence review, but the practitioner pays any costs that may be incurred after that.