Gareth Hughes, Chairperson, Social Services and Community Committee

Transcription

1 Report Date: 04 April 2018 Security Level: IN CONFIDENCE To: Gareth Hughes, Chairperson, Social Services and Community Committee Social Workers Registration Legislation Bill: Departmental Report Purpose of the report 1 We attach the Departmental Report on the Social Workers Registration Legislation Bill (the Bill) to support the Social Services and Community Committee s consideration of the Bill. 2 The report includes: the policy intent of the proposals introduced in the Bill background information on the operation of social worker registration and the push for mandatory registration an outline of the structure of the Bill analysis of the written and oral submissions received advice on proposed amendments to the Bill

2 Social Workers Registration Legislation Bill Departmental Report 04 April 2018

3 Contents Social Workers Registration Legislation Bill: Departmental Report... i Purpose of the report... i Contents... iii Introduction... 4 Background... 4 Policy intent of the Bill... 4 Overview of the Bill... 5 Responses to Committee questions... 6 Bill of Rights issues... 6 Offences and Penalties... 7 Volunteer social workers... 7 Submissions Overview... 8 Range of submissions received... 8 Key issues raised in the submissions... 8 Recommendations for amendments A range of changes being recommended Summary of Recommendations Appendices Appendix 1 - The history of the legislation Appendix 2 List of Submitters... 23

4 Introduction Background The enactment of the Social Workers Registration Act 2003 (The Act) was the end result of a collective desire by the profession and government to strengthen the professional standing of social work and to ensure the quality of social work practice in New Zealand. Registration of social workers is consistent with trends internationally. 1 The purpose of the Act is to: protect members of the public by prescribing or providing mechanisms to ensure that social workers are competent to practice and accountable for the way in which they practise; create a framework for the registration of social workers in New Zealand by establishing both a board to register social workers and a tribunal to hear complaints about registered social workers; enhance the professionalism of social workers. Registration was initially voluntary. Subsequent reviews of the Act since 2003 have recommended the move to mandatory registration and to protect the title of social worker, so that only those registered could describe themselves as a social worker. A detailed timeline is included as Appendix 1. Policy intent of the Bill The objective of this Bill 2 is to ensure the public is protected from harm and to increase the professionalism of the social work profession. It aims to do this by: increasing coverage of the regulatory regime so that it will cover all social workers; ensuring social workers are competent and fit to practise; provide an appropriate complaints and disciplinary process; increasing the effectiveness and transparency of the way the Act functions. Public submissions on the Bill closed on 31 January 2018, with written and oral submissions reviewed by the Social Services and Community Committee s (the Committee) over February and March Hunt, S. (2017). The social work regulation project in Aotearoa New Zealand. Volume 29. Number 1. Aotearoa New Zealand Social Work. New Zealand. 2 This Bill is an omnibus Bill introduced under Standing Order 263(a). That Standing Order states that an omnibus Bill to amend more than one Act may be introduced if the amendments deal with an interrelated topic that can be regarded as implementing a single broad policy. Page 4 Social Workers Registration Legislation Bill: Departmental Report

5 Overview of the Bill Title protection and mandatory registration This Bill would amend the Act so that the title social worker is protected. This extends the scope of the current occupational regulation so that anyone practising as a social worker or doing a titled social worker must be registered and have a current practising certificate. This includes if a person: is claiming to be a social worker; holds a position or performs a role described using the words social worker; is undertaking restricted work which is any task or activity described in legislation that can only be undertaken by a social worker. Expanded title protection will provide assurance to the public and prospective employers that someone who calls themselves a social worker has met certain standards of skills, knowledge, and experience and is subject to on-going professional oversight (such as continuing professional development and complaints and disciplinary processes). The changes in the Bill will also promote a positive professional identity that will support high-quality social work practice. To allow for a smooth transition, the amendments that will require all social workers to be registered will come into force two years after the Bill receives Royal assent. Experience based pathway to registration removed Section 13 of the Act currently provides an experience-based pathway to registration for social workers who the Board accepts have achieved a sufficient breadth of experience but who do not have a recognised social work qualification. This Bill will remove that pathway five years after the Bill receives Royal assent. The Bill provides for the temporary registration of people likely to be able to meet the criteria in section 13 so that those people can remain in the profession while their applications for registration based on their previous experience under section 13 are considered. It is intended that during the five-year transition period the Board will consider restrictions on the area of practice for social workers with specialist rather than broad experience. The Bill also provides that those who are registered at the end of the five-year period on the basis of previous experience under section 13 will, from that time, be treated as having been fully registered under section 12 of the Act. Other changes This Bill makes amendments to other existing provisions of the Act to increase the effectiveness and transparency of the way the Act functions. These include: amending the criteria for appointment to the Board to include representation of the interests of the employers of social workers; reducing the number of members of the Board from 10 to seven; streamlining competence assurance processes to allow for continuous professional development programmes for practising social workers in place of competence assessments every five years; clarifying that Police vetting is required as part of the Board s assessment of whether a person is a fit and proper person to practise as a social worker; requiring employers of social workers to report to the Board where they have reasonable belief that a social worker is not competent (if this has not been able Social Workers Registration Legislation Bill: Departmental Report Page 5

6 to be addressed), has engaged in serious misconduct, or may be unable to perform his or her functions due to a mental or physical condition; requiring social workers to report to the Board any reasonable belief that another social worker is unable to perform his or her functions due to a mental or physical condition; aligning the complaints and disciplinary processes under the Act with similar regulatory regimes; expanding the circumstances under which the Board can suspend a social worker s registration or impose conditions; setting out principles to guide the Board in setting any educational qualification requirements. Other Acts The Bill will amend the Criminal Records (Clean Slate) Act 2004 to ensure that no criminal convictions can be concealed from Police vettings required for the consideration of whether a person is a fit and proper person. The Bill will also consequentially amend the Health and Disability Commissioner Act 1994, with the term social worker replacing the term registered social worker in the definition of health practitioner. Responses to Committee questions Bill of Rights issues The Committee sought clarification on clause 32, which seeks to include new section 51(1A) and (1B). These new subsections place a mandatory obligation on social workers to report to the Board if they consider another social worker is unable to perform their functions appropriately due to a mental or physical condition, and failure to report may constitute professional misconduct. The Committee queried if social workers needed this requirement, given no health professionals appeared to have this obligation. It noted that the equivalent provision in the Health Practitioners Competency Assurance Act 2003 (the HPCA Act), section 34, provides for only discretionary reporting. Comment: This provision is not about reporting competence, which is the subject of section 34 of the HPCA Act. Section 45 of the HPCA Act, which is the equivalent provision to section 51 of the Bill, does require health practitioners to report another health practitioner if they have reason to belief he or she is unable to perform the functions required for the practice of his or her profession due to a mental or physical condition. The objective of this mandatory obligation on social workers is to reduce the risk of harm to vulnerable people seeking social work services. If the Board is made aware of any issues or concerns about the mental or physical fitness of a social worker to practise, it can take steps to address those issues before they become significant. We believe this provision is justified given one of the objectives of the Bill is to ensure the public is protected from harm. No civil or disciplinary proceedings can be taken against the social worker making the report unless he or she has acted in bad faith. Page 6 Social Workers Registration Legislation Bill: Departmental Report

7 The Ministry of Justice reviewed the draft bill including this provision to assess its consistency with the New Zealand Bill of Rights Act The Ministry s report to the Attorney-General on 26 July 2017 made no comment on the proposed amendments to section 51 and concluded the Bill appears to be consistent with the rights and freedoms affirmed in the Bill of Rights Act. Offences and Penalties The Committee sought clarification on clause 63(1), which replaces section 148(2) and (3) with a new clause (2) that makes it an offence to contravene new section 6AAA. New section 6AAA reflects the offence provisions in the original section 148(2) and (3) broadly. The new section 6AAA(3) states that no person may hold another person out as a social worker when they are not. The current 148 (and the revised 148(4) as amended by clause 63(2)) apply this offence only to employers and professional colleagues. The Committee queried the inclusion of section 6AAA(3), asking if it had been considered in respect of the application of the proposed new section 148(2) and, in particular, the overlap with proposed new section 148(4). Comment: The Ministry agree that there is a minor overlap between section 6AAA(3) and the new section 148(2), however we consider the effect of this to be inconsequential and therefore not requiring amendment. Volunteer social workers The Committee sought clarification on whether: the Bill applies to social workers acting in a volunteer capacity; what is known about the numbers and demographic information of volunteer social workers; and what risks are there for organisations with reliance on social workers undertaking voluntary work in a mandatory registration environment. Comment: The Bill does cover social workers acting in a volunteer capacity. Clause 8 would introduce a new section 6AAB(c), which includes in the definition of practising as a social worker a person who holds a position, in a voluntary capacity or as a member of any body or organisation, that is described using the words social worker. The Ministry considers that including social workers that work in a voluntary capacity aligns with the objective of the Bill to protect the public from harm, as it is immaterial whether a social worker is paid or unpaid. The Ministry has sought information from the Board on the demographics of social workers. There are currently 1366 non-practising registered social workers (that is those who are not required to hold an annual practising certificate because they are either working in a position that is not that of a social worker, are on parental leave or overseas, or have retired); however there is no way of knowing how many of them may be undertaking any kind of social work-related activity in a volunteer capacity. There are 600 registered social workers over the age of 65, many of whom might reasonably be assumed to be retired; and would be the people most likely to have the time available to offer volunteer services. Social Workers Registration Legislation Bill: Departmental Report Page 7

8 The Board does not yet have a specific policy on registered social workers who are volunteers, but it has indicated an openness to developing such a policy in consultation with the wider sector, as there may be a number of ways of supporting this workforce in a mandatory registration environment. Aged Concern raised a specific concern over the position of retired social workers who no longer wish to maintain their registration but undertake volunteer work. The expected effect of the Bill would be that previously registered social workers who wish to volunteer and who had de-registered would still be subject to the Title Protection restrictions (plus any restricted tasks). As long as they, and the organisation they are providing volunteer services to are very clear that they were no longer practising as a social worker then they could not be assessed against any criteria used to define social work practice, or forced to register. If a volunteer was still registered, but non-practising it is likely that they could be assessed as practicing social work, and would be required to hold a current Annual Practising Certificate. Submissions Overview Range of submissions received The Committee received just under 120 written submissions on the Bill, with a total of 17 oral submissions being heard by the Committee on four days between 14 February and 28 March Submitters included the Social Workers Registration Board, District Health Boards, Non-Governmental Organisations (NGOs), Professional Organisations and individuals. A full list of submitters is included as Appendix 2. Key issues raised in the submissions The Bill contains 70 clauses for consideration. The written submissions presented various comments or alternative suggestions on 21 clauses of the Bill. Submissions also raised other matters that sit outside the scope of the Bill as presented, but are relevant to the wider social work or social services sectors. Submissions on policy issues Some of the suggestions raised by submitters would require significant changes to decisions agreed by Cabinet in As such any changes to the Bill in line with these submissions would require Cabinet consideration, along with careful consideration to ensure the Bill still worked as a whole. These are described in more detail below: Timeframe for the repeal of Section 13 a pathway for registration by experience Almost 60 percent of written submissions were in favour of reducing the delayed repeal of section 13, which provides a pathway to social work registration for those with significant relevant experience, but without an approved academic qualification. The Page 8 Social Workers Registration Legislation Bill: Departmental Report

9 repeal as proposed in clause 10, is subject to a five year delay under clause 2(2). The five year delay for this action was proposed to provide NGOs more time to prepare for the transition. The Board and ANZASW submissions, as well as district health board submissions among others, were supportive of a shorter phase out timeframes, between immediate change and two years. This suggests that key figures in the sector consider they have the capability to manage such a transition in a shorter time. I question why it will take 2 years from Royal Assent to implement the change outlined in this section and would think a year would be sufficient time and recommend that this be revisited. I note that it only took the original board a year to implement a system of voluntary registration from nothing. Since 2004, when the first registration was completed, a review of the Public Register shows that 199 social workers have registered through the provisions of Section 13. This suggests that many social workers with significant practical experience prior to 2003 have recognised the value of registration and have already taken advantage of the Section 13 registration provisions. Section 13, has been in place now for nearly 15 years and adding another five years makes no sense. The sunset clause on the repeal of Section 13 should be reduced to two years at the most. The ability to use section 13 has been in place since the SWR Act 2003 was enacted; the 15 year period is long enough to grandparent with previous experience, and allow unqualified social workers time to complete their social work qualification. Less than seven percent of written submissions opposed the repeal of this section altogether. These submissions were primarily concerned that the repeal would stop experienced social workers being able to practice social work, creating a potential shortage of available social workers and placing a strain on smaller NGOs as they seek to compete with other employers to recruit and retain registered social work staff. recommends that the enactment of the Bill to make registration mandatory be extended from two years to increase the time organisations and social workers have to resource the registration requirements within their workforce. understands that the Minister for Children, Hon. Tracey Martin will be undertaking a review of social worker training and pathways into training, and therefore any consideration by the Committee of the implications of the removal of s.13 of the current Act may be complementary to the Minister s work. Ministry response on the timeframe for the repeal of Section 13: We recommend no change to the Bill. We consider that the longer timeframe is important to allow those experienced social workers without a recognised qualification sufficient time to undertake the process required to gain registration. The Bill has transitional provisions in new Schedule 1AA that allows people who are already registered as a social worker based on practical experience under section 13 to remain registered after that section is repealed in five years from the date of Royal Assent. This also applies to people who make applications before section 13 is repealed but have not had those applications considered. Social Workers Registration Legislation Bill: Departmental Report Page 9

10 The timeframe set out in the Bill will also ensure adequate time to provide information to the sector on the new requirements once the legislation is enacted. The cost of registration to the individual or their employer Most NGO submissions raised concerns about the costs of the registration and the Annual Practising Certificate fees as an issue for either individual social workers or their employers. NGOs frequently receive at least part of their funding through government contracts, and they express concern that those contracts have not had any real increase in funding for many years. They were concerned that many NGOs may not be in a financial position to absorb the costs associated with having social work staff gain and maintain registration or to meet increased remuneration costs associated with a registered workforce. At the same time, over the past decade, there has been no increase in many government contract levels to cover increases in costs for the employment of social workers, or training costs to meet skill development demands that have accompanied an increase in client complexity. Age Concerns are asking how funding all the quality requirements of social worker registration can be built into government contracts for services which require valued social worker skills. Funding constraints experienced by NGO providers have impacted on their decisions whether to fill vacant roles with registered or non-registered social workers. Salary, on-going registration and continuing professional development (CPD) training costs are factored in to recruitment decisions. Aside from the option of government increasing contract funding, many NGO submissions questioned whether there were options for transitional grants to help offset the initial cost of registering their social workers. This would allow the initial registration to become cost neutral to the NGO or their employee, leaving just the cost of the annual practising certificate and on-going professional development. Ministry response on the costs of registration to the individual or their employer: We recommend no change, as this is a matter dealt with outside of the legislation. Clearer or alternative means of providing definitions Submitters strongly signalled their support for title protection as set out in new section 6AAA. Submitters noted, however, that under the new section 6AAB social work practice was not clearly defined and largely limited to a position title or position description. NGOs and the wider sector expressed concern about the lack of a legally recognised definition for social work or social work practice. Almost 80 percent of the written submissions commented that a definition by title and employment was insufficient. The primary concern with the approach is the perceived ability to avoid the legislation merely by changing job titles or amending position descriptions to remove any reference to social work. The Bill currently does not include a satisfactory definition of social work yet requires employers and others to notify the Board of practise that is deemed Page 10 Social Workers Registration Legislation Bill: Departmental Report

11 unfit. Providing a definition and scope of practice will help the wider public to understand the purpose and place within which the profession sits, and support practitioners to claim their space. Enabling managers to select job titles that may not contain the words social worker but the practice is as a social worker also has potential ramifications when working with tangata whenua families and young people as there is possibly no rigor required to evidence competent social work practice when working with tangata whenua families and young people. The submissions suggest that this ambiguity is problematic for employers of social workers, who will remain unsure of what social work actually is. As such, this version of a definition was too open to interpretation, allowing employers to adapt position descriptions or role titles to avoid having someone classed as a social worker. Various internationally accepted definitions were cited for this purpose. Ministry response on alternative means of providing definitions: New section 6AAB sets out what it is to be practising as a social worker - which includes being employed or engaged in a role that uses the title or description of social worker, or a role in where the person holds themself out to be a social worker, any voluntary role as a member of a body or organisation described using the words social worker, any position or role described in any enactment using the words social worker, or the undertaking of restricted work. The difficulties in having a definition of social work in the Act are boundary issues and having a definition that is precise enough to be enforceable. The Board can provide advice to employers as to whether positions are social worker positions under their function of promoting the benefits of registration in section 99(1)(j). We recommended no change with respect to having a definition of social work in the Bill. To address the concerns of employers avoiding the title protection by changing job titles, we make the following recommendations: Recommendations 1 & 2: New section 6AAB (Definition of practising as a social worker) is amended by: 1. Clarify the scope of the definition of practising as a social worker by referring to social work in sub-clauses (a), (c) and (d). 2. Clarify the definition in new section 6AAB to avoid the unintentional capturing of positions that are filled by persons not claiming to be social workers. We also note that in addition to the legislative requirements, Government agencies in their role as contract mangers will be able prevent agencies from avoiding the regime by specifying the employment of social workers to deliver contracted services. Restricted Work A small number of submissions raised the issue of restricted work. This is described as any task or activity that is described in an enactment with words to the effect that it can only be undertaken by a social worker, in the Bill. There are only a small number of Social Workers Registration Legislation Bill: Departmental Report Page 11

12 these tasks, which are mentioned in other items of legislation as being provided by social workers. Given our experience in health social work we prefer an approach which provides a general health scope of practice and specific task licensing, where necessary, for any statutory tasks. This would bring social work in line with how our multi-disciplinary team (MDT) colleagues are managed. A model of specific task licensing would also support the work of child protection and mental health MTDs, and may be supported by field specific scopes of practice. Submitters commented that the content and range of these tasks isn t easily publically available, and a set definitive list would be useful, ideally with context. Potentially, this could be something that the Board hosts on their website as a reference point for any social workers or their employers. what sorts of tasks are restricted to social workers, perhaps there should be a list made so that employers knew they had one of these tasks. A formal definition of restricted tasks should be made, that is more substantial than just saying a task that only a social worker can do. A comprehensive list of restricted tasks should be created, ideally even stating why this task is restricted. the Bill refers to restricted work that only a Social Worker may undertake. Many members asked about what these restricted tasks were, and it seems critical for a thorough understanding of the dividing line between Social Worker and others. We were unable to provide such a list to our members. This vague definition of restricted tasks could cause difficulties in deciding whether or not a job must be done by a Social Worker or could be done by someone else. Some submissions recommend the provision in the Oranga Tamariki Act 1989, which allows delegation of powers to people who are not social workers, be reconsidered. The amendment to the Oranga Tamariki Act 1989 in 2017 removed references to social worker, replacing these words with the chief executive, and requires the chief executive to explicitly delegate powers under the Act to social workers. The amendment also enabled the chief executive to delegate powers to any other person, provided the chief executive is satisfied that the person is appropriately qualified to perform the function or exercise the power, taking into account the person s training, experience and interpersonal skills the Association argues that because long-term significant harm can be the consequence of statutory intervention, it is essential that actions such as those listed above must be carried out by a well-trained and highly skilled social work practitioner. Ministry response on restricted work: We recommend no change as any changes to the Oranga Tamariki Act 1989 or other Acts is a matter outside of the scope of this Bill. However, as discussed below, we propose that the wider question of restricted work be considered as an aspect of definitional issues to be reviewed. Recognition of scopes of practice and related definitional issues Related to the comments of definitions, over 70 percent of submissions also expressed a desire for the inclusion of scopes of practice as a means for setting the parameters of Page 12 Social Workers Registration Legislation Bill: Departmental Report

13 social work, and potentially helping to better define social work. Many of those submissions also promoted the use of text from the HPCA Act as a model for the operation of any proposed scopes. strongly recommends that Section 6AAB be re-written to require social workers to work within a scope of practice published by the Social Workers Registration Board using the Health Practitioners Competence Assurance Act 2003 Sections 8 and 11 as a model. Protection of title only, does not provide assurance of competency or accountability for those practising under another job title. We recommend that in addition to protection of title, protection of role or scope is also regulated. recommends new section 6AAB be withdrawn and redrafted to provide a clear definition of the term social worker using a scope of practice approach similar to the Health Practitioners Competence Assurance (HPCA) Act. Submitters were generally suggesting that a social work scope of practice could help to future-proof the social work profession, as well as potentially creating a pathway for other social service sector workers. Many submissions highlighted that a scope of practice would allow for the recognition of social workers who operate and develop higher level skills in a specific area, such as mental health, to have recognition of those higher skills in a similar way to nurse practitioners. Submissions also suggested that scopes of practice could allow for recognition, a means of accountability, and professional development opportunities for those operating in supporting roles, such as social service workers and social work assistants. This support staff recognition could allow those who may not have met the requirements for section 13 registration to remain in their roles and still utilise their knowledge and experience. There were some concerns raised by submitters about possible unintended effects on the volunteer workforce of some social service organisations and NGOs who benefit from the experience of retired or non-practising social workers as volunteers or Board members. A requirement to maintain an annual practicing certificate and fulfil registration requirements could reduce the numbers of volunteers and significantly weaken some organisations. Ministry response on the recognition of scopes of practice: The Ministry has considered the advantages and disadvantages of three main approaches to the issue of defining social work, social workers, or practising as a social worker. These are having a definition in the Act, in regulations, or having a definition delegated to the Board in specifying a scope of practice. Ministry comment on definition in primary legislation: The main benefit in having a definition of social work in the Act is certainty. The difficulty, however, is having a definition that is precise enough to be enforceable. Social work and social work tasks are difficult to define. Having a definition such as the global definition agreed by the International Federation of Social Workers and the Social Workers Registration Legislation Bill: Departmental Report Page 13

14 International Association of Schools of Social Work 3 in 2014 would potentially create boundary issues as it could be interpreted to describe other occupations. If a more precise definition was used this could be too restrictive and not allow for the diversity of social work practice or the on-going development of social work practice. A definition in primary legislation would be hard to change. Definition in regulations: The main benefit in having a definition in regulations is the flexibility of having it in secondary legislation as opposed to primary legislation. It could be developed in consultation with the profession and the Board and be more easily responsive to change than if it was in primary legislation. It could be a key part of the regulatory framework and be linked to a social workers competency and professional development. Another advantage would be in the ability to specify how the definition is to be developed and any other specifications in the empowering provision of the Act. The difficulty in developing a definition that is precise enough to be enforceable would also apply with this option. A definition in regulations may also be less flexible than the scopes of practice model discussed below which could allow for a general scope of practice in addition to more specialised scopes of practice under a general scopes of practice. An alternative would be to provide a regulation-making power in the Act to prescribe the types of tasks or activities that a social worker does in regulations. For example, a person would be practising as a social worker if they are doing any of the types of activities or tasks which are prescribed in regulations. This would give flexibility to adapt to changing roles in the profession, by having the ability to identify precise tasks or areas of work in secondary legislation as well as in primary legislation. The current Bill does allow for task licencing, when it can be defined precisely. HPCA model for Scopes of Practice: Many submitters proposed using scopes of practice model similar to that used in the HPCA Act. Authorities describe the contents of a health profession in terms of one or more scopes of practice under section 11 of the HPCA Act in any way the authority thinks fit. Under section 8(2) of the HPCA Act no health practitioner may perform a health service that forms part of a scope of practice of the profession in respect of which he or she is registered unless he or she (a) is permitted to perform that service by his or her scope of practice; and (b) performs that service in accordance with any conditions stated in his or her scope of practice. Section 8(2) applies only to health practitioners. The term health practitioner is defined as a person who is, or is deemed to be, registered with an authority as a practitioner of a particular health profession. This means section 8(2) only applies to registered health practitioners. 3 Social work is a practice-based profession and an academic discipline that promotes social change and development, social cohesion, and the empowerment and liberation of people. Principles of social justice, human rights, collective responsibility and respect for diversities are central to social work. Page 14 Social Workers Registration Legislation Bill: Departmental Report

15 Section 7(2) says no person may claim to be practising a profession as a health practitioner of a particular kind or state or do anything that is calculated to suggest that the person practises or is willing to practise a profession as a health practitioner of that kind unless that person (a) is a health practitioner of that kind; and (b) holds a current practising certificate as a health practitioner of that kind.. This is similar to new section 6AAA(2) in the Bill. Ministry response on scopes of practice model: The Ministry recognises there are benefits in the scopes of practice model. It would allow the designated authority (i.e. most likely the Social Workers Registration Board) to describe the social work profession in scopes of practice by notice in the New Zealand Gazette. The benefit in having scopes defined outside of primary legislation is that they could be developed in consultation with the profession and more easily adapted to change than if they were in primary legislation. They could also be a part of the regulatory framework, and link to the social workers competency and professional development. The difficulties in defining the scopes of practice would be the same as for specifying a definition in the SWRA. Having a scope of practice definition that is too broad could make it difficult to enforce. Having scopes of practice definition that is too restrictive could risk some areas of social work practice not being covered. A person would not be at risk of practising outside of a scope of practice unless they are currently registered as a social worker. Under the HPCA Act, scopes of practice do not apply to people who are not claiming to be health practitioners of a particular kind, and therefore required to register. It seems some submitters did not understand this and expected that scopes of practice would identify work that could only be done by social workers, which would be highly restrictive. There is a risk, however, that scopes of practice could be used in a disciplinary proceeding under the Act on a charge of a person practising without a practising certificate or practising outside of the scopes of practice. This needs to be considered in more detail. For example, a person who wants to remain registered but chooses to pursue another career or act as a volunteer could be at risk if a scope of practice is too broad. In addition there may be unintended consequences for social workers who wish to cancel their registration. The Ministry recognises the benefits in having a scope of practice model similar to that in the HPCA Act but recognises the complexity involved, and the risk of unintended consequences. We also consider that the mechanism of title protection will achieve the intention of the Bill, which is to achieve a mandatory registration regime for social workers, thereby increasing the protection for people needing social work services. We therefore recommend no change to the Bill with respect to including a provision for scopes of practice, or definitions, other than recommendations 1 and 2 above. Section 104 of the Act requires the Social Workers Registration Board to review the operation of the Act at intervals of between three and five years, consider whether any amendments are necessary or desirable, and report its findings to the Minister. The next review is due by Social Workers Registration Legislation Bill: Departmental Report Page 15

16 The Ministry considers this would provide time for the Board to consider whether there needs to be further amendment to provide for a scopes of practice model and, if so, develop a scope of practice definition in consultation with the profession and the wider sector. A regulation making power for further specification of restricted work could also be part of this review. The review should also cover ways to prevent unnecessary disruption to the social services volunteer workforce, as well as for social workers who wish to leave the profession to work in a field which has some common elements with social work. We therefore recommend no change to the Bill with respect to including a provision for scopes of practice. The obligations to report concerns Many submissions commented on the requirements to report concerns about social workers to the Board. The expectation is that employers, and fellow social workers, are to raise any concerns they have about either the competence of a social worker, or the fitness to practise as a social worker. Submissions asked for appropriate guidance for employers and social workers, to ensure they realised the expectations, understood the required process, and were aware of the possible implications of not reporting. we suggest that the Committee gives further consideration to how the reporting requirements on employers sit alongside and align with employment law processes that the employer and social worker may be concurrently engaged in. The practical implications for employers and social workers will be important to consider here. It appears that in instances of serious misconduct by social workers, the employers obligation to manage relevant employment processes governed under employment law should be their primary responsibility, followed by the requirement to report serious misconduct to the Board it remains unclear at what point in such an employment law process concerning serious misconduct by a social worker would an employer be required to report that misconduct to the Board, especially given the confidentiality governing such employment issues. Ministry response on obligations to report concerns: These requirements are to ensure that the Board is aware, and can then investigate and support, as soon as possible where there is a social worker practising who may be struggling with providing a suitable standard of social work services. This could be because of a mental health issue, physical impairment or injury, or other personal or social problem that could be affecting that social worker s ability or judgement. Clause 53(2) of the Bill will amend the functions of the Board to include setting criteria for the reporting on competence issues (new section 99(1)(oa)). Recommendation 3: a change to new section 99(1)(oa) on Functions of the Board in clause 53(2) to include criteria for reporting on fitness to practise. We recommend no other change as the Ministry considers the obligations align with the objective of the Bill to protect the public from harm. Page 16 Social Workers Registration Legislation Bill: Departmental Report

17 Professional development programmes Several submissions commented on the use of language in the Bill, with regards to professional development programmes, otherwise widely known across many sectors as continuing professional development. The concern was that the use of the term programme could be seen as implying a specific course, rather than an on-going process that can be developed and tailored. The rationale for the change of language is not clear especially as the term continuing professional development is widely used in social work and other professions and implies on-going development, rather than undertaking periodic courses. The Board also suggests that the language in the Bill that refers to Professional Development Programmes should be adjusted to refer to Continuing Professional Development (clauses 15 and 22). Ministry response on professional development programmes: To address the concern over the potential narrow meaning of programme we make the following recommendations: Recommendation 4: in section 29 (Board may adopt general conditions), subsection 2(b) is amended by deleting the word programmes. This is linked to Recommendation 5 below. Recommendation 5: new section 38A (Professional development programmes for practising social workers) is amended by replacing professional development programmes with professional development and making other changes required for sense. This is because the word programme could be interpreted more narrowly than is intended. Social Workers Registration Legislation Bill: Departmental Report Page 17

18 Recommendations for amendments A range of changes being recommended Of the submissions received that were within current government policy, there were a number of technical changes suggested to the wording within the Bill. The Ministry has also reviewed the Bill and Act and made recommendations for a number of other technical changes. Many of these changes are designed to make the Bill easier to understand, to clarify aspects that were seen as ambiguous, or to allow correct errors that were found in the Bill. The list of recommendations below is divided into: recommendations relevant to key issues raised by submitters recommendations for technical amendments relevant to suggestions from submitters or the Ministry s own review. Summary of Recommendations The Ministry of Social Development recommends 19 specific amendments to the Social Workers Registration Legislation Bill, and two to allow Parliamentary Counsel Office (PCO) to make edits as required. The following five recommendations are made in response to issues raised in the submissions: Recommendations 1 & 2: New section 6AAB (Definition of practising as a social worker) is amended by: 1. Clarify the scope of the definition of practising as a social worker by referring to social work in sub-clauses (a), (c) and (d). 2. Clarify the definition in new section 6AAB to avoid the unintentional capturing of positions that are filled by persons not claiming to be social workers. Recommendation 3: a change to new section 99(1)(oa) on Functions of the Board in clause 53(2) to include criteria for reporting on fitness to practise. Recommendation 4: in section 29 (Board may adopt general conditions), subsection 2(b) is amended by deleting the word programmes. This is linked to Recommendation 5 below. Recommendation 5: new section 38A (Professional development programmes for practising social workers) is amended by replacing professional development programmes with professional development and making other changes required for sense. This is because the word programme could be interpreted more narrowly than is intended. Page 18 Social Workers Registration Legislation Bill: Departmental Report

19 The following 14 recommendations are technical changes which have been identified during the review of the Bill and how it would operate: Recommendation 6: section 2 of the Bill (Commencement) is amended by adding other provisions that need delayed commencement because they need to come into force at the same time as when new sections 6AAA and 6AAB come into force or at the same time section 13 is repealed. Recommendation 7: section 2 of the Bill (Commencement) is amended by delaying the commencement of section 55 which amends section 106 of the Act by reducing the membership of the Board until 3 months after the Act comes into force. This is to provide the Minister with adequate time to schedule and make Board appointments. Recommendation 8: the definition of restricted work is moved from section 4 (Definitions) to new section 6AAB (Definition of practising as a social worker) so that all detail relevant to the definition of practising as a social worker is in one place. Recommendation 9: the headings of section 6 (Entitlement to registration of New Zealand qualified social workers) and section 7 (Entitlement to registration of overseasqualified social workers) are amended by replacing social workers with applicants. Recommendation 10 & 11: in section 30 (Restrictions on issue of practising certificates): 10. Subsection (1)(b)(ii) is amended by removing as a profession as this appears to be a drafting error in the Act. 11. New subsection (2A) is amended by adding at the end [if the Registrar has reason to suspect that 1 or more of the grounds in section 47 might apply to the applicant]. This is to give some guidance on the factors the Registrar may consider when deciding whether or not to refer an application for a practising certificate to the Board for it to decide on whether the applicant is a fit and proper person to practise as a social worker. Recommendation 12: subsection (3)(b) of new section 38B (Mandatory requirement for employers to report to Board if social worker believed not to be competent) amended by removing the words or cannot perform satisfactorily the functions required to practice as a social worker as the section is about competency and this phrase is related to fitness to practice. Recommendation 13: new subsections (1A) and (1C) of section 51 (Notification of conditions affecting ability to practise as a social worker) are amended to specify requirements for reporting to the Board. These are mandatory obligations for a social worker or an employer so should be consistent with reporting requirement in other provisions. Recommendation 14: new section 57A (Interim suspension of registration or imposition of conditions on registration or practising certificate) is amended by replacing the word misconduct with serious misconduct in subsection (1). The heading above this is also amended by replacing misconduct with serious misconduct. This would allow interim suspension or imposition of conductions to be used when an employer reports an issue of serious misconduct to the Board under new section 47A. is Social Workers Registration Legislation Bill: Departmental Report Page 19

20 Recommendation 15: new section 65 (Referral of complaints and notices of conviction to professional conduct committee) is amended to ensure a social worker is notified when the Board makes a referral about them or refers a notice of conviction to the professional conduct committee. Recommendation 16 & 17: section 73 (Conciliation and mediation) is amended: 16. To ensure a conciliator (if appointed) would have an obligation to report back to the Board. This would be consistent with the obligation in subsection (1B) for a mediator to report back to the Board. 17. To ensure that if a mediator is appointed, he or she should be independent. This would be consistent with the requirement in subsection (1)(a)(ii) that a conciliator is an independent person. Recommendations 18: section 99 (Functions of the Board) is amended by inserting a new function to review the fitness to practice of social workers. This would be similar to the function in subsection (1)(g) to review the competence of social workers. Recommendation 19: new Schedule 1AA (in Schedule 2 of the Bill) is amended by inserting a new clause for continuation of membership of the Tribunal. This would refer to section 116 of the Act and be similar to clause 3 on Continuation of membership of the Board. The chairperson and deputy chairperson would continue until the expiry of their respective terms. Other members of the Tribunal would continue until 5 years after the member was appointed. The exception would be if any of the events described in section 45 of the Crown Entities Act 2004 occur first. The following two recommendations are to allow Parliamentary Counsel Office (PCO) to make edits as required: Recommendations 20 & 21: Committee to approve Parliamentary Counsel Office (PCO) to make edits: 20. The final wording of any provision subject to a recommendation in this report is subject to PCO advice. 21. The Committee authorises PCO to make minor or technical drafting changes to the Bill. Page 20 Social Workers Registration Legislation Bill: Departmental Report