Good Laws Strengthen Good Practice. Bad Laws Stifle It.

  • Bill English

Good morning. Thank you for the invitation to speak to you here today.

This morning I'd like to talk about the safety regulations for health and disability consumers.

It's good to have this opportunity to talk to you all directly. Some of you have been involved, and will still be involved, in all the thinking about these regulations. Others may be glad to catch up with what's been going on.

I hope to make it clear to you what the Government wants to do, and why.

The things I'd like to cover this morning are:

How the present legislation works, or rather doesn't.
What we're doing about this legislation.
And the development of national standards. This is a process that will involve some of you here.

Current Legislation.
Let's first of all outline the present consumer safety arrangements. These are a mixture of legislative and non-legislative mechanisms. The ones written down as laws are what we need to talk about first.

Some of these laws don't just apply to the health and disability sector, for example

the Food Act
The Building Act
the Fire Safety and Evacuation of Buildings Regulations
Other laws do apply just to this sector, such as

Hospitals Act and Regulations
Health Act
Old People's Homes Regulations
and the various statutes about the health professions.
What the Ministry of Health is now doing is going through all its legislation and seeing how useful it is. The work reforming the present safety legislation has been part of this review.

What the Ministry has found with the current safety laws is what providers, consumers, and indeed the Ministry already knew - that much of it is old fashioned, and inappropriate. Its narrow scope means some risks are being overlooked. It is also complex and costly.

Some of these laws were drafted 40 years ago, when providing health care was very different from today. This has led to a number of problems. The most significant of these are that:

Firstly, the legislation only focuses on some elements of risk. It doesn't look at the whole picture. It's very much tied up with buildings and not the safety of the services provided within those buildings.
This means that compliance with legislation does not ensure residents or patients are safe.

It doesn't give any kind of basis for using new services or technology safely.

It doesn't focus on the management of significant safety risks.

It stifles innovative ways of responding to changes, because it doesn't concentrate on desirable outcomes.

In other words, the current safety regulations do not "put the person and their safety needs first", and expect the services to follow those needs.

The second set of problems is that there are overlapping jurisdictions of responsibility for safety. This means just who is responsible for what isn't always clear. What's almost as bad is that providers can undergo 'safety' investigations from a number of authorities. That's complex, costly, and doesn't in fact help consumers.

Thirdly, this overlapping is in itself risky. In practice it can mean that one authority relies on another authority for ensuring safety standards. That trust in those standards can be misplaced.
In summary then, the current safety legislation is firstly - incomplete, secondly - confusing, and thirdly - because it is incomplete and confusing - it overlooks some possible risks.

Here's some examples of how the actual practice of the law goes against its intent.

Because there's not comprehensive guidance on the delivery of good, safe services, auditors are "filling in the blanks" themselves.

A provider of licensed rest home facilities has reported that in one home they were asked to remove toilet doors, and in another told to make them lockable.

Another example comes from a Stratford rest home, which was building a new maternity unit. It was forced to put in a nursing room, and another room with a sink in it, for which no-one had any use.

Let's look at another way the law doesn't fit needs.

The present Hospitals' Act specifically prevents licensed hospitals from providing other health services from their premises.

However we now have demands for both residential care and some hospital services for the elderly to be provided in the same place. These are sensible demands, as it can be quite traumatic for the elderly to be shifted around. But for this to happen as the law is now, a rest home has to be regarded as a hospital for licensing purposes.

In short, as these examples show, current safety legislation does not put the interests of residents or patients first.

Another point about bad legislation is that it can lead to disrespect for all laws.

So that's why we want to change the current safety legislation. It's outmoded, inflexible, complex, expensive to audit and to meet, and risky. It simply doesn't meet people's safety needs.

Proposed Changes.
Now I want to talk about how we plan to change this legislation.

Some of you will have been involved in working this all out. I'd like to thank you here publicly for all your work to date. More contributions to this process, which is not yet finished, are also needed, and welcomed.

There will be an opportunity for provider and consumer input when the Bill is referred to a Select Committee.

National standards will be developed, with the provider groups, the Ministry and the HFA all working together.

What the Government wants to do is revoke the current safety legislation and replace it with one single piece of legislation. The legislation involved is:

Part V of the Hospitals Act 1957
the Hospitals Regulations 1993
the Obstetric Regulations 1986
the Old People's Homes Regulations 1987
and sections 18-22A of the Disabled Person's Community Welfare Act 1975.
It is hoped that the new legislation will be a much more workable, and goal-orientated piece of law. Putting it as simply as I can, the new legislation says:

all providers must be contracted to the HFA, or be certified, accredited or a member of an organisation designated by the Ministry of Heath
national standards are to be jointly developed by the Ministry, HFA, agencies and providers
these standards are to be part of HFA service specifications, or accreditation requirements for the designated organisations

the Ministry will monitor the HFA and these other organisations
the HFA and the other organisations will monitor the providers
the Ministry will be responsible for making sure only those who are allowed to provide services do so
these changes will come into effect on 1 July 1999.
What's particularly important, in practice, for providers, is that:

all providers will have to meet national standards
consumer safety will be the responsibility of the providers
fewer agencies will provide safety audits
safety audits will be to modern standards, not outdated legislation
providers will still be audited and monitored
the Ministry of Health will still be responsible for enforcement
Ministry licensing of health agencies will be phased out by 1 July 1999
outdated safety legislation will be revoked.
We have set a fairly short time frame for implementing this proposed legislation.

It is to be introduced to Parliament later this year.
Then referred to a Select Committee for further input.
The Ministry needs to establish criteria for the "designated organisations".
National safety standards need to be developed.
All this is to be completed before 1 July 1999.

I am confident however, that this time frame is quite realistic. A great deal of consultation and work has already been done, and the road ahead has been clearly marked out.

This time should also be enough for some providers who now need to meet new standards.

National Standards - how providers and consumers can be involved.
We've looked at the current laws, and why we want to change them. Then we looked at the proposed new legislation. Now, finally, let's look at the setting of national standards.

These new national standards are crucial to how the new legislation will work. However, they will not be specified in the new law. They need to be free to develop in response to the needs of consumers and providers. This development of these national standards could involve many of you here today.

Although the standards won't form part of the new legislation, they will in fact be enforceable, through contractual arrangements.

It is important that these standards are developed so that we can all see they are "industry" standards. They won't be nearly as effective if they are seen as impositions from the Ministry or HFA.

We hope to start discussions soon with provider groups, the HFA and the Ministry on how best to develop these standards.

It will also be important that they can be "maintained" dynamically. They need to be able to respond to new technologies and services.

Rather than reinventing the wheel, it makes sense to use existing standards where possible.

It is highly desirable that these national standards will be part of the HFA's service specifications. This will cut down on the multiple audit problem, and will help with ensuring the nationwide consistency of audits.

It would also be a good idea to keep the standards at a reasonably general level. If they are made too prescriptive, too detailed, they could also end up being too narrow. They need to be general enough to be flexible, and also to be acceptable nationwide.

In fact, the preferable approach would be for the standards to set out desired outcomes, and then set out good methods for achieving those outcomes. However if somebody came up with better ideas on how to reach the desired goals, that would be allowable too.

We welcome, and in fact need, providers and consumers to get involved in developing these national goals. Many of you here, in whatever role you have, can help develop these standards, and help refine the drafts that will follow.

It's a hard fact that some health and disability services are inherently risky. For example, institutionalised older people are 10.5 times more likely to fracture a hip than those living in private homes. But much, much more can be done to reduce such risks.

I am confident that this new legislation, and the new national standards it will foster, will make life a lot safer for a lot more of our most vulnerable people.

This new law, and these new standards, will not be about how many locked doors you can have in one building, but about protecting the safety and health of the people within the building.