The Health Practitioners Competence Assurance Act (the Act) allows for specified activities to be restricted to registered health practitioners, in order to protect members of the public from the risk of serious or permanent harm.
On 27 June 2005 the Health Practitioners Competence Assurance (Restricted Activities) Order 2005 was made by the Governor-General, pursuant to section 9 of the Health Practitioners Competence Assurance Act 2003. Formal notification of the Order in Council appears at page 2396 of the New Zealand Gazette of 30 June 2005 (Issue 100, 2005). The Order in Council came into force on 1 August 2005.
Guidelines for the operation of restricted activities
- What are restricted activities?
- What restrictions are currently in place?
- Amendments to restricted activities
- What this means for you
- Why are some activities being 'restricted'?
- How was the list of restricted activities developed?
- What does the list of restricted activities cover?
- Will the list change? How will I find out if it does?
What are restricted activities?
Section 9 of the Health Practitioners Competence Assurance Act (the Act) allows for specified activities to be restricted to registered health practitioners, in order to protect members of the public from the risk of serious or permanent harm.
Since 1 August 2005 it has been illegal for anyone other than a health practitioner regulated under the Act to perform any of the activities listed below. It is an exception to this if the activity is performed in an emergency situation.
What restrictions are currently in place?
The Restricted Activities that have been declared under the Act are:
- surgical or operative procedures below the gingival margin or the surface of the skin, mucous membranes or teeth.
- clinical procedures involved in the insertion and maintenance of fixed and removable orthodontic or oral and maxillofacial prosthetic appliances.
- prescribing of enteral or parenteral nutrition where the feed is administered through a tube into the gut or central venous catheter.
- prescribing of an ophthalmic appliance, optical appliance or ophthalmic medical device intended for remedial or cosmetic purposes or for the correction of a defect of sight.
- applying high velocity, low amplitude manipulative techniques to cervical spinal joints.
Amendments to restricted activities
The Director-General of Health has recently reviewed the operation of the Health Practitioners Competence Assurance Act 2003 (the Act). During the review, some stakeholders raised concerns with an activity that was restricted under the Act. The activity was:
Performing a psychosocial intervention with an expectation of treating a serious mental illness without the approval of a registered health practitioner.
There was concern that this was unnecessarily restricting the activities of other professions not covered by the Act. As a result, in December 2009 Cabinet authorised the removal of this restricted activity. This change came into force on 14 January 2010.
… if you are not a registered practitioner under the Act
If you are not registered under the Act, it is illegal for you to perform any of the activities listed above. An exception to this is if the activity is performed in an emergency situation.
Any breaches will be investigated by the Ministry of Health and may be prosecuted. Anyone found guilty faces a fine of up to $30,000.
… if you are a registered health practitioner
The restricted activities do not, in themselves, limit what activities a registered health practitioner may carry out.
Under the Act the activity of practitioners is determined by the scopes of practice within which they work. A registered health practitioner may do anything in his or her scope of practice – including an activity that is otherwise restricted if that scope of practice covers or clearly includes that activity.
It is not necessary for a scope of practice to specifically refer to a restricted activity; only that the scope clearly countenances it. A health practitioner who acts outside his or her scope of practice will be subject to proceedings initiated by his or her regulatory authority.
Restricted activities are not intended to restrict the activities of practitioners of established professions not regulated under the Act, from carrying out legitimate activities that they are currently undertaking without risk of harm to the public.
The provision for 'restricted activities' - a form of licensing - was included in the Act to provide an additional assurance that non-health practitioners would not be able to perform tasks that can only safely be performed by competent and registered health practitioners.
The development of the restricted activities listed here was based on a number of explicit criteria.
- There should be a clear risk of serious or permanent harm if the activity is done by anyone other than a health practitioner registered under the Act.
- There should be no existing prohibitions/restrictions, such as those in the Crimes Act, Radiation Protection Act, Medicines Act.
- There should be strong grounds for believing there to be a likelihood of someone other than a registered health practitioner undertaking the activity, or having access to any necessary specialised equipment with which to do so.
- The activity should in principle be one capable of being 'done to' a person. That is, activity that does not in itself involve contact with a person (such as the diagnosis of a condition or the selection of materials for a possible device) will not in itself necessarily pose a risk of serious or permanent.
- The wording should not inadvertently prohibit practitioners of a non-regulated, but established profession from carrying out activities that they are currently doing without risk of harm to the public.
1. Surgical or operative procedures below the gingival margin or the surface of the skin, mucuous membranes or teeth
This is intended to broadly capture activities that involve cutting the flesh or doing something that causes bleeding. Particular reference is made to teeth and to the gingival margin (the "gum”).
[Note: In many cases, evidence of bleeding will give rise to a presumption of an offence. The Ministry would take note of the occurrence of blood or bleeding as a result of actions taken by non-registered individuals when considering if a breach of this restricted activity has occurred. If it appears that a breach has occurred, the occurrence of blood/bleeding will be taken as evidence of a breach of this restricted activity].
2. Clinical procedures involved in the insertion and maintenance of fixed and removable orthodontic or oral and maxillofacial prosthetic appliances
This covers much of that activity currently undertaken by dentists, clinical dental technicians, orthodontists and maxillofacial surgeons. The main concern behind this restriction is the potential long-term damage caused by inappropriate orthodontic or oral and maxillofacial work.
3. Prescribing of enteral or parenteral nutrition where the feed is administered through a tube into the gut or central venous catheter
It is not intended to capture people who provide dietary supplements or to prohibit caregivers, families or individuals from administering or providing ‘therapeutic diets’.
4. Prescribing of an ophthalmic appliance, optical appliance or ophthalmic medical device intended for remedial or cosmetic purposes or for the correction of a defect of sight
This restriction is intended to address the significant risk of asymptomatic eye disease associated with the dispensing of an ophthalmic appliance, optical appliance or ophthalmic medical device, without the first step of a diagnosis by a registered health practitioner.
5. Applying high velocity, low amplitude manipulative techniques to cervical spinal joints
This is specific to cervical spinal joints - where the risk of stroke or death related to manipulation occurs. The wording 'high velocity, low amplitude' is commonly understood by practitioners as a description of the dangerous element to this activity.
As noted, it was recognised that the wording should not inadvertently capture existing lawful and safe activities. For example, the following activities are not considered by the Ministry to be captured by the listed restricted activities.
- Taking blood samples
- The manufacture of a customised anti-snoring devices
- Taking of dental impressions (for example, for the production of mouth guards)
- Minor tasks and simple procedures undertaken by care givers, such as lancing of boils or pulling out loose teeth
- Making and fitting of ocular prosthetics
The list of restricted activities is not expected to change significantly, or regularly. However, it is always possible that further possible risks to public safety will be identified from time to time. Changes in technology or the development of new procedures could lead to practices that are unsafe when undertaken outside the bounds of a regulated health profession.
The Ministry of Health is required to consult widely on any proposal that an activity be declared 'restricted'. Should a change to the list be proposed, notification of the proposal, and an invitation to comment, will appear on this website. In addition, proposal details will be posted to organisations that the Ministry feels could inform the discussion. A current list will be maintained on this website.