Report - Aotearoa New Zealand Association for Social Workers · 2018-06-11 · Report Date: 04 April 2018 Security Level: IN CONFIDENCE To: Gareth Hughes, Chairperson, Social Services

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

Social Workers Registration Legislation Bill

Departmental Report

04 April 2018

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 ................................................................. 18

A range of changes being recommended ............................................................. 18

Summary of Recommendations .......................................................................... 18

Appendices ....................................................................................................... 21

Appendix 1 - The history of the legislation ........................................................... 21

Appendix 2 – List of Submitters ......................................................................... 23

Page 4 Social Workers Registration Legislation Bill: Departmental Report

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 Bill2 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 2018.

1 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.

Social Workers Registration Legislation Bill: Departmental Report Page 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


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.


The Ministry of Justice reviewed the draft bill including this provision to assess its

consistency with the New Zealand Bill of Rights Act 1990. 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.


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 2018. 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 2017. 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


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.


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


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


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


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


International Association of Schools of Social Work3 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.”


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 2020.


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.


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.


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.


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 overseas-

qualified 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) is

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.


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.


Appendices

Appendix 1 - The history of the legislation

2000

In 2000, the then Ministry of Social Policy consulted with the social work sector on

whether to introduce social worker registration.

2003

The Social Workers Registration Act 2003 (the Act) was enacted in 2003, and provided

for the voluntary registration of social workers4. One of the reasons registration was

made voluntary was that many social workers did not have the required educational

qualifications to become registered. Under the Act, the Social Workers Registration Board

(Board) is required to review the operation of the Act, and its own operations, at least

every five years5.

2007

A review of the Act was undertaken in 2007, which recommended the social work

workforce was ready for mandatory registration. The feedback from the 2007

submissions process not only focussed on the issue of voluntary versus mandatory

registration, but also raised a number of issues for social workers and their employers

that the Board was tasked with addressing. In addition to the changes instigated by the

Board, a number of recommendations were made to Government; however none were

adopted by Government.

2012

During the time of the Green (2011) and White (2012) Papers on Vulnerable Children,

another review of the Act was undertaken in 2012. This review again questioned the

effectiveness of the voluntary registration system (certification) to protect the public and

enhance the professionalism of social workers, and recommended mandatory

registration of social workers as well as title protection.

2015

The Act was reviewed again in 2015, examining whether the Act was achieving its

underlying objectives of protecting the public and enhancing the professionalism of social

workers. The outcome of the 2015 review was another recommendation for mandatory

registration and title protection for social workers. Also in 2015, Minister Sepuloni (at

that time, a Labour opposition MP) had a Members Bill calling for mandatory registration

voted down in the House. NZ First MP Darroch Ball had also drafted a similar Bill focusing

on those dealing with vulnerable children.

2016

In 2016, at the request of the then Minister for Social Development, the Social Services

Committee undertook an inquiry into the operation of the Act in order to identify how the

standard of the social work workforce could be lifted so that vulnerable clients are

4 The voluntary registration provisions were brought into force on 1 October 2004

5 Social Workers Registration Act 2003, section 104.


protected from poor practice. The Board were the official advisors to the Committee

during this process. The Committee released its Inquiry Report on 2 December 2016.

The Committee concluded that legislative reform is needed to strengthen the regulatory

framework for the sector, to increase the professionalism and competence of social

workers, and to provide greater protection for the public.

2017

The Government Response to the recommendations of the 2016 Inquiry, presented to

the House of Representatives on 21 March 2017, acknowledged the overall intent of the

Committee’s recommendations and the case made by the Committee for some form of

increased regulation of social workers.

An amendment Bill was drafted and introduced to the House on 9 August 2017, and had

the first reading on 17 August prior to the House rising for the 2017 General Elections.

Following the formation of the new Government the Bill was reinstated and referred to

the Social Services and Community Committee.

2018

The Ministry of Social Development was appointed as the advisor to the Committee for

the purposes of this Bill. The Committee invited public submissions on the Bill, which

closed on 31 January 2018. There have been almost 120 written submissions received

on the Bill, with 17 of them being heard orally as well.


Appendix 2 – List of Submitters

Government sector – 5 written submissions

Canterbury District Health Board

Capital and Coast District Health Board (CCDHB)

Mental Health, Addictions, Intellectual Disability services - Wairarapa, Hutt and CCDHBs

Nelson Marlborough District Health Board - Allied Health Social Workers

Social Workers Registration Board

Non-Governmental Organisations – 12 written submissions

Age Concern

Barnardos

Birthright

National Collective of Independent Women's Refuges

National Council of Women of New Zealand

New Zealand Council of Christian Social Services

Palmerston North Methodist Social Services

Presbyterian Support New Zealand

SociaLink

Stand Children's Services

The Salvation Army

Zonta Club of Mana

Individuals – 35 written submissions*(representing 93 individual submissions)

Adrienne Thomas

Associate Professor Kieran O'Donoghue

Bernice Tyree

Dawn Lloyd

Dean Emmerson

Debbie Erickson

Diane Milne

Dianne Andrew

Dr Barbara Staniforth

Dr Carole Adamson

Dr Elizabeth Beddoe


Emeritus Professor Peter Harwood

Enhancing the Readiness to Practise

Esteban Espinoza

Families Achieving Balance

Gaye Mallinson

Gwen Austin

James Wigzell

Jeltsje Keizer

Jenny Olsen

Joanna Appleby* and 58 others (the Appleby response is representative of many others)

John Dunlop

Juliet Witheford

Karen Temple

Linda Dockrill

Louise Rostron

Lynette Coyle

Patricia Karena

Paula Nes

Philippa King

Professor Mark Henrickson

Reg Orovwuje

Sarah Alden

Sarah Boeh

Val xx

Professional Organisations – 7 written submissions

Aotearoa New Zealand Association of Social Workers (ANZASW)

Council of Social Work Educators

Golden Bay Community Workers

New Zealand Nurses Organisation

Public Service Association

Social Service Providers Aotearoa

Tangata Whenua Social Workers Association


Oral submissions heard in person by the Committee – 17 oral presentations

Age Concern

Aotearoa New Zealand Association of Social Workers

Associate Professor Kieran O'Donoghue

Barnardos

Bernice Tyree

Birthright

Canterbury District Health Board

Capital and Coast District Health Board

Jeltsje Keizer

Mental Health, Addictions, Intellectual Disability services - Wairarapa, Hutt and CCDHBs

National Council of Women of New Zealand

New Zealand Council of Christian Social Services

Public Service Association

Reg Orovwuje

Social Service Providers Aotearoa

Social Workers Registration Board

Tangata Whenua Social Workers Association

Documents

Report - Aotearoa New Zealand Association for Social Workers · 2018-06-11 · Report Date: 04 April 2018 Security Level: IN CONFIDENCE To: Gareth Hughes, Chairperson, Social Services