What is the health process under the HPCA Act, and how does it affect your registration?

The health process is the part of the Health Practitioners Competence Assurance Act 2003 (the HPCA Act) that deals with a practitioner whose mental or physical condition may affect their ability to practise. It is not a disciplinary process. Nobody alleges misconduct, no charge is laid and no finding is made against you. Your Council or Board receives a notification, tells you what it says, asks for your response, may require you to be examined by a doctor it nominates, and then decides whether you can practise safely with no order, with conditions on your scope of practice, or not at all for a period. The order it makes is entered on the register; the detail of your condition is not. Engaging with the process early, with advice, gives you the best chance of a short process and of staying in practice while it runs.

What the health process is and what it is not

The HPCA Act gives every responsible authority three routes for a concern about a practitioner: competence, health and conduct. The health route starts with section 45, which deals with a notification that a practitioner may be unable to perform the functions required for their profession because of a mental or physical condition. The sections that follow give the authority the power to require a medical examination, to make interim orders, to impose conditions or a suspension once it is satisfied that the condition affects your ability to practise, and to review and revoke those orders.

The purpose is protection of the public, not punishment. The question is whether you can practise safely, and on what terms. A health matter does not go to a Professional Conduct Committee or the Health Practitioners Disciplinary Tribunal unless conduct is also in question, and the authority holds what it learns about your health in confidence. Where a concern has both a health element and a conduct element, for example a prescribing concern alongside a dependence, the authority may run the two routes side by side; the guide to what happens after a notification to your Council or Board describes how the routes are chosen.

Who must notify, and what the Council or Board looks at

Section 45 places a duty on other health practitioners, on employers and on people in charge of organisations where you work to notify the Registrar in writing when they have reason to believe that a condition affects your ability to practise. You can also notify the authority yourself, and a practitioner who does so before anyone else has to is in a different position from one whose employer has written first. Once the notification arrives, the authority looks at the following.

• The notification. Who sent it, what they say they observed, and whether it describes a condition or describes conduct that may have another cause.
• Your response. Your account of your health, how it is managed, what support you have and how it has affected your work, if at all.
• Reports. From your own treating practitioners, with your consent, and from the examiner the authority nominates if it requires an examination.
• Your practice. Whether there is evidence of harm or risk to patients, what your employer says about your work, and any earlier notifications.
• Your engagement. Whether you attended the examination, answered the questions, kept to any undertaking and told the authority of changes.

What happens step by step

1. Notification received. The Registrar receives a written notification under section 45 and the authority decides whether it raises a question it must look into.
2. You are told. The authority writes to you with the substance of the notification and asks for your response by a date. It may ask for your consent to approach your treating practitioners.
3. Medical examination. If the authority requires it, you attend an examination by a practitioner it nominates, who reports to the authority on your condition and on its effect on your practice.
4. Interim step, if any. Where the authority considers there is a risk of serious harm while it decides, it can make an interim order, after giving you the chance to be heard. The guide to interim suspension and interim conditions explains that step.
5. Decision. The authority decides whether you can practise with no order, whether to accept a voluntary undertaking, or whether to impose conditions or a suspension.
6. Review and revocation. Any order is reviewed at the date set in it or on your request, and is revoked when the authority is satisfied that it is no longer needed.

What you can do now

The authority is asking whether your condition is understood and managed, and whether your practice is safe while it is. Everything you do now should go towards answering those two questions with evidence.

• Get advice first. Your indemnity insurer, your professional association or union, or a lawyer, before you reply. For doctors the Medical Protection Society, for nurses NZNO, for midwives NZCOM.
• Respond to what the letter says. Address the condition described and its effect on your work. The guide to writing a response to a Council or Board notification gives a structure that works for a health notification as well as a conduct one.
• Put your own treating practitioner's account in. With your consent, a report from the person who manages your condition is the strongest evidence that it is understood and managed.
• Offer what you would accept. If a limit on hours, a change of setting, supervision or regular reports would make your practice safe while you recover, say so. An undertaking you propose reads differently from a condition imposed on you.
• Keep a record of engagement. Dates of appointments, reports sent, undertakings kept. At review the authority wants to see a stable period, and your record shows it.
• Attend to the practice side. If the notification describes an effect on your work, a short written reflection on what happened and what you have changed, with any course certificates, shows the authority that you have looked at the practice as well as the health. The guide to showing insight and building a remediation plan explains what that reflection contains.

The outcomes

• No order. The authority is satisfied that the condition does not affect your ability to practise, or that it is managed, and closes the matter. Nothing is entered on the register.
• A voluntary undertaking. You agree in writing to steps such as treatment under a named practitioner, regular reports, a limit on your work or abstinence with monitoring. The authority holds the undertaking and can rely on it. A Council or Board may prefer an undertaking to an order where you have engaged early.
• Conditions. Once the authority is satisfied that your condition affects your ability to practise, it can include conditions in your scope of practice: supervision, a limit on hours or setting, reports from a treating practitioner, a bar on a named area of practice. Conditions are entered on the register and your employer is told what they require.
• Suspension. Where conditions would not make your practice safe, the authority can suspend your registration for a period. A health suspension is reviewed and lifted when the authority is satisfied you can return, with or without conditions.
• Refusal to attend an examination. If you do not attend a required examination, the Act lets the authority suspend your practising certificate or impose conditions until you do.

Every order carries a right to be heard before it is made and a review afterwards. When an order is revoked the register entry is updated to remove it, although the authority keeps its own file.

How a health matter differs from a conduct matter

A conduct matter asks whether you did something that falls below the standard of your profession and what should follow. A health matter asks whether a condition affects your ability to practise and what makes your practice safe. The difference changes what you write. In a conduct matter the authority wants an account of the event, a comparison with the standard and evidence of change; the guide to how a Professional Conduct Committee process runs describes that. In a health matter the authority wants an account of the condition, its management and its effect on your work, and evidence that you will keep to what is agreed.

Where the two overlap, keep them separate in your response. Describe the event and your reflection on it as a practice matter, and describe your health and its management as a health matter, without using one to excuse the other. A practitioner who writes "I was unwell, so the record was wrong" has described a health matter and a records matter at once and answered neither. Profession guides describe how the health route runs within the Medical Council's process for doctors and the Nursing Council's process for nurses.

Where remediation fits

Remediation in a health matter means showing the authority that the practice side has been looked at as well as the health side. Fitness to Practise for Healthcare Professionals covers what a Council or Board means by fitness to practise and how health, competence and conduct are separated. Insight for Fitness to Practise covers how to write about a condition and its effect on your work without excuse or denial. Ensuring Clinical Competence and Patient Safety covers how to show that your patients were and are safe.

Each course is NZ$200, takes 2 CPD hours, is self-paced with immediate access, and ends with a dated certificate issued by Healthcare Ethics Courses that you can submit to your Council or Board or put in your remediation plan. The remediation courses for every Council and Board are on the hub page, and the Council and Board investigation process explained shows where the health route sits beside competence and conduct.

Sources and further reading

• Health Practitioners Competence Assurance Act 2003: section 45 and the provisions that follow on notification, medical examination, interim orders, conditions, suspension and review.
• Medical Council of New Zealand: its published material on how it handles a health concern about a doctor.
• Nursing Council of New Zealand: its published material on the health process for nurses.

Frequently asked questions

Is the health process a disciplinary process?

No. The health process under the HPCA Act is separate from the conduct route. Nobody alleges misconduct, no Professional Conduct Committee is appointed for the health question and no charge is laid before the Tribunal. The Council or Board is asking one question: can you practise safely with your condition, and if so on what terms. An order made under the health provisions is entered on the register as a condition or a suspension, but it is not a finding of wrongdoing and does not carry a censure or a fine.

Will my Council or Board publish my diagnosis?

No. Health information gathered in the process is held in confidence by the authority. What the public register shows is the practical effect: a condition on your scope of practice, such as supervision or a limit on hours, or a suspension. The register does not state the condition behind the order. Your employer is told what the order requires of you, because the employer has to give effect to it, and the authority can ask your treating practitioners for reports with your knowledge.

Do I have to attend the medical examination?

If the authority requires an examination, the Act lets it treat a refusal as a ground for suspending your practising certificate or imposing conditions until you attend. You can ask that the examiner be someone with no connection to you or your workplace, and you can ask for the examiner's report. Attend, take a support person if the authority allows one, and let your own treating practitioner know the examination is happening so their account and the examiner's can be compared.

Can I keep working while the health process is open?

Yes, unless the authority makes an interim order. The Act allows an interim suspension or interim conditions where the authority considers there is a risk of serious harm to the public while the question is decided. Practitioners reduce the likelihood of an interim order by engaging early, giving a voluntary undertaking where one is offered, and showing that their condition is being managed. The guide to interim suspension and interim conditions explains how those orders are made and reviewed.

How does a health matter end?

The authority reviews any order it has made and revokes it when it is satisfied that you can practise without it. Review dates are set in the order or on request. What the authority looks for at review is the same evidence it looked for at the start: a treating practitioner's report, compliance with the conditions, a stable period of practice, and your own account of how you manage your health and your work. A voluntary undertaking ends when the authority releases you from it in writing.