Changes to the national law could allow Ahpra to publish the ‘full regulatory history’ of any health professional found guilty of professional misconduct, regardless of whether the sanction has expired. Here’s what’s on the table.
There has been an increase in reports of sexual misconduct by Australian health practitioners against patients over the past decade. In 2022- 23 alone, Ahpra received 841 complaints about 728 registered practitioners regarding boundary violations. This is an increase of 223% compared with three years prior.
Though doctors constitute just 12% of registered health professionals, they accounted for more than 40% of complaints about boundary violations, including sexual misconduct, made to Ahpra in the 2022-23 reporting year.
A boundary violation is behaviour that blurs professional and personal relationships with patients or involves unethical behaviour of a criminal or sexual nature with a patient or other person.
According to Ahpra, the types of complaints range from inappropriate or sexualised remarks, intimate touching of a patient without consent, personal relationships where there is an imbalance of power, to aggressive sexual, criminal offending.
Push for ‘rapid review’ into medical complaints
While health professional codes of ethics have long forbidden sexual contact between practitioners and patients, and various regulatory reforms (including board-mandated chaperones) have tried to curtail ‘boundary violations’, the problem remains.
In February 2023, Four Corners aired its six-month investigation into the medical complaints handling process, revealing a ‘complex and unwieldy system struggling to protect the public from sexual predators’. They discovered, over the course of 10 years, 160 doctors who have been sanctioned by tribunals for sexual misconduct were subsequently allowed to continue to practise medicine. The program alleged more than one-third of all publicly disciplined practitioners are still on the national register.
Shortly after the program aired, Health Minister Mark Butler ordered a rapid review of the way Ahpra is handling cases relating to sexual harassment and misconduct. State and territory health ministers announced they would take action to ensure the management of professional misconduct by health practitioners relating to sexual misconduct and sexual boundary violations would better meet community expectations.
Sexual misconduct may soon be on the public record
Health ministers are seeking to introduce nationally consistent requirements for practitioners who seek re-registration following cancellation or disqualification, and stronger protections for people who make complaints to regulators, in good faith, about a health practitioner.
‘Where past reforms have tinkered with the disciplinary powers regulators have to sanction health professionals, these new proposals take a different tack,’ says health law expert Dr Christopher Rudge, in an article published on HealthEd.com.au.
‘They seek to reorient the “inherent power imbalance” between practitioner and patient, in favour of patients. The aim is to increase public information about previously sanctioned practitioners and to better protect those who complain,’ he adds.
According to documents published on the Victorian government’s Engage platform, proposed changes to the Health Practitioner Regulation National Law include:
- greater transparency for patients on health practitioners’ full regulatory history where they have engaged in sexual misconduct, sexual boundary violations and/or criminal sexual offences
- require practitioners to obtain a reinstatement order from a tribunal prior to applying for re- registration when their registration has been cancelled or they have been disqualified (as currently required in NSW), meaning more transparency
- make it an offence for practitioners to seek a non-disclosure agreement from a patient that prevents them from making a complaint to the regulator.
In a statement, Victorian Health Minister Mary-Anne Thomas said: ‘Every Australian rightfully expects their doctor-patient relationships to be respectful, appropriate and, above all else, strictly professional. These reforms will aim to improve transparency for patients so they can make an informed choice when choosing which health practitioner is right for them.’
‘Under the proposed reform, information published on the register would include all regulatory actions taken against a practitioner by the relevant national board, or tribunal decisions against that practitioner from 2010 onwards.’
Expansion of information on the national public register
The background paper on the reforms states that, under the proposed rules, if a practitioner is found by a tribunal to have engaged in ‘professional misconduct’ because of sexual misconduct and/ or a sexual boundary violation, or where there has been a conviction or finding of guilt for a criminal sexual offence, any regulatory action undertaken by a National Board against that practitioner … will be published or republished on the register and thereafter remain on the register.
Currently, a regulatory action may be placed on a practitioner’s registration for the period of time the actions or conditions are active. Following this period, the practitioner’s regulatory history, including any undertakings and conditions, may be removed from the public register where it is determined that actions taken by National Boards are no longer required to protect the public.
The National Law also currently permits practitioners to apply for undertakings and conditions to be removed from their registration.
The regulatory information published on the register would include all regulatory actions taken against a practitioner by the relevant National Board, or tribunal decisions against that practitioner from 2010 onwards. This means that the full regulatory history of the practitioner, including regulatory history which is unrelated to the professional misconduct that is sexual in nature, would be published.
Information published would include regulatory actions such as, but not limited to:
- links to the published tribunal decisions and reasons for the decisions relating to the practitioner;
- conditions imposed on the practitioner’s registration;
- undertakings provided by the practitioner;
- reprimands on the practitioner’s registration; and
- other disciplinary actions taken against the practitioner.
As a practitioner’s regulatory history will remain permanently visible on the register, this means that any future regulatory actions undertaken by National Boards will be retained even after the relevant sanction has expired. For example, if a practitioner’s regulatory history is published, and the practitioner later has a condition placed on their registration because of separate conduct, this condition will remain on their registration even after it has expired.
Establishing nationally consistent reinstatement orders
Currently under the National Law, National Boards are responsible for assessing applications for registration by practitioners, including where a practitioner who was previously registered is seeking to regain registration. Consistent with confidentiality and privacy requirements under the National Law, the reason(s) for these decisions are not published. Consequently, there is little information available to the public to explain why a practitioner whose registration was previously disqualified or cancelled is later granted registration to practise.
State and territory tribunals have different confidentiality and privacy obligations compared to those required of National Boards under the National Law.
In NSW, practitioners seeking to return to registration after their registration was previously cancelled or disqualified must apply for a reinstatement order from the Tribunal. This means that the public have access to information regarding the reasoning behind why a practitioner, who was previously disqualified or cancelled, has been deemed suitable to apply for re-registration. Health ministers are considering adopting this requirement in all states and territories to ensure national consistency in the process for re-registration following cancellation or disqualification.
Strengthening protections for notifiers
The consultation paper published on the Victorian government’s Engage platform also proposes amendments to the National Law to strengthen protections for notifiers and prospective notifiers, including amendments to make it an offence to bar people from making a notification or complaint through a non-disclosure agreement (NDA).
Health ministers are also considering amendments that would prevent a person causing detriment to, or taking reprisal against, anyone who, in good faith, makes a notification about a health practitioner.
Ahpra and Medical Board of Australia’s Independent review of the regulation of medical practitioners who perform cosmetic surgery (Cosmetic surgery review) identified that the use of NDAs by some health practitioners may interfere with consumers’ understanding of their rights to make notifications. Subsequent inquiries which examined protecting the title ‘surgeon’ under the National Law also raised similar concerns.
Health ministers are considering amendments to the National Law to make it clear that signing an NDA does not prevent a person from making a notification under the National Law to Ahpra, National Boards or health complaints entities about a registered health practitioner.
Currently, the National Law as in effect in all jurisdictions, does not protect a person that makes a notification from harm, threats, intimidation, harassment, or coercion. While some jurisdictions have implemented specific provisions which provide some protections from reprisals, these protections apply via their specific health complaints legislation.
Proposed reforms which would introduce protections for notifiers have been supported in recent inquiries. In situations where individuals, employers or providers are legally obliged to make certain notifications, it is appropriate that they be protected from any potential adverse consequences.
Consultation on the proposed changes closed on February 19, 2024. A decision is expected to be announced by health ministers mid-2024. AMP
To read the proposed reforms in full, visit engage.vic.gov.au/proposed-reforms-to-the-health-practitioner-regulation-national-law
Proposed reforms include:
- Increased public disclosure: Disclosure of the full regulatory history of practitioners convicted of professional misconduct related to sexual violations in civil or criminal courts. This information would be made available on a public register indefinitely.
- Consistent reinstatement procedures: Standardising the process of reinstating deregistered practitioners across states and territories to require a reinstatement order from a civil tribunal. This seeks to ensure
the practitioner bears the onus of proving to a tribunal that they are suitable to apply to return to registration, while improving public transparency because tribunal decisions are publicly accessible. - Ban on non-disclosure agreements: Prohibiting the use of NDAs by practitioners to stop or dissuade misconduct reporting, stipulating that an NDA does not prevent a person from making a notification, prevent a person from causing detriment to or taking reprisal against a person who, in good faith, makes a notification about a health practitioner.
