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Different cultural beliefs may make overseas-trained doctors reticent to report colleagues for impairment or professional misconduct under the new mandatory reporting laws, according to Medical Board of Australia chair, Dr Joanna Flynn.
Mandatory reporting by all registered medical practitioners came into effect on July 1 under new national legislation governing 10 health professions and their national boards, which now fall under the Australian Health Practitioner Regulation Agency (AHPRA).
Under the legislation, registered health practitioners, their employers and education providers must report “notifiable conduct”, such as working while intoxicated, sexual misconduct, or impairment placing the public at risk of substantial harm.
Dr Flynn’s concerns follow a study of almost 1900 US physicians that found 17% knew a colleague who was incompetent to practise but only two-thirds reported them.
Underrepresented minorities, graduates of non-US medical schools and doctors practising alone or with one partner were the least likely to report.
Dr Flynn said doctors from other cultural backgrounds needed the opportunity to understand the culture of reporting, but president of the Australian Doctors Trained Overseas Association Dr Viney Joshi said it was fear of repercussions that made OTDs reluctant to report.
“If overseas trained doctors feel so marginalised here, do you think they are going to report colleagues who are impaired? They feel very vulnerable as it is.”
Dr Joshi said many OTDs had been bullied, harassed and tormented and did not speak up.
“If an overseas trained doctor is working with an Australian doctor who is their supervisor they are not going to want to [report] for fear of being absolutely castigated,” he said.
Dr Flynn said if doctors in Australia fail to report when it was clear they should, action could be taken against them. She is encouraging doctors who are unsure of their new obligations to seek advice from colleagues, administrators or indemnity insurers.
“I know there is a lot of concern, understandably, that somebody could make a malicious report or be put in a position where they would have to make a report about their spouse,” she said.
“In general, the record of regulatory systems is that people don’t make malicious reports and in fact there are penalties if reports are not made in good faith.”
Reporting guidelines are available on the AHPRA website .
JAMA 2010; 304: 187-193.
Posted 2 August, 2010
Anybody gentle soul who believes they can trust the Medical Boards is very naive. I deeply resent the implications of this ‘charter for spying’ being told that I must report a colleague. What I consider acceptable practice another may not and visa-versa so why would I be party to subjecting anybody to the kind attentions and prejudices as owned by members of these boards? We are all well aware that ‘standards’ can be very subjective and unless some overt crime is being committed why should I get involved as a third party? My duty is to my patients, not to the Board.
Dr Hunter and others should be able to take comfort from section 237 of the new legislation. I quote it here in its entirety.
HEALTH PRACTITIONER REGULATION NATIONAL LAW (NSW) – SECT 237
Protection from liability for persons making notification or otherwise providing information
237 Protection from liability for persons making notification or otherwise providing information
(1) This section applies to a person who, in good faith-
(a) makes a notification under this Law; or
(b) gives information in the course of an investigation or for another purpose under this Law to a person exercising functions under this Law.
(2) The person is not liable, civilly, criminally or under an administrative process, for giving the information.
(3) Without limiting subsection (2)-
(a) the making of the notification or giving of the information does not constitute a breach of professional etiquette or ethics or a departure from accepted standards of professional conduct; and
(b) no liability for defamation is incurred by the person because of the making of the notification or giving of the information.
(4) The protection given to the person by this section extends to-
(a) a person who, in good faith, provided the person with any information on the basis of which the notification was made or the information was given; and
(b) a person who, in good faith, was otherwise concerned in the making of the notification or giving of the information.
A colleague who was in doubt about making a report on another doctor sought the advice of the state medical board and was instructed in writing that reporting was obligatory in the particular instance.
A report was made, which was followed by vigorous legal action for defamation. Defending against this was costly and distressing. The medical board which obliged the doctor to make the report gave no support and specifically declined responsibility in the event that a judgement was given against the doctor who made the report.
Therefore before reporting a colleague, doctors need to obtain in writing a guarantee from Dr Flynn that the Medical Board of Australia will defend them in any defamation action, or indemnify them for any costs of making their own defence, and also be responsible for paying any award for damages made by a court.