Issue 21 / 4 June 2012

A LEADING Australian lawyer has questioned the lack of clear definitions and guidelines to protect the privacy of medical practitioners who have reprimands listed on the Medical Register.

In an editorial in the latest issue of the MJA, Professor Ian Freckelton, a Victorian barrister and professor of law with the department of forensic medicine at Monash University, wrote that no guidance was given on what constituted privacy in the national law that regulated medical practitioners. (1)

National law now mandates that key outcomes from the disciplinary process of the Medical Board of Australia should be published on the Medical Register.

Professor Freckelton wrote that although the law required the fact that a practitioner had been reprimanded be included on the publicly available register, the Medical Board did not have to publish the terms of or reason for the reprimand.

However, the board could decide that conditions imposed because the practitioner had “an impairment” — which Professor Freckelton described as “very broadly defined and includes substance misuse” — need not be recorded if that was necessary to protect the practitioner’s privacy and there was no overriding public interest to do so.

But these terms were not well defined and were open to interpretation.

“No guidance is given as to what constitutes privacy for this purpose, or to how the ‘public interest’ should be interpreted”, Professor Freckelton wrote.

He said the national law also provided no time frame for details of disciplinary matters to be recorded on the register, or for whether “old” reprimands should be included.

He suggested that publicly available guidelines be available so practitioners could better understand when conditions should not be published to protect their privacy and when reprimands should be removed so “practitioners can live down and rehabilitate from mistakes of the past”.

He also suggested reprimands and conditions that had been met be removed from the register after 3 years.

“… it is important that the Board formulate a position about the level of information it will publish about practitioners’ health conditions, so that they are not unduly prejudiced in their health privacy and their potential for recovery by such material being published on the Register”, Professor Freckelton wrote.

The Medical Board decided in March 2010 it would routinely remove reprimands issued after 1 July 2010 from the register after 5 years if there were no further health, performance or conduct issues reported in that period, a board spokesperson told MJA InSight. (2)

“The board and AHPRA [Australian Health Practitioner Regulation Agency] are continually working to improve access to information about the national scheme and to improve the clarity and accessibility of information published”, the spokesperson said.

“Regulation is not designed to punitively record conditions in place at a point in time in the past, but to record what the board has decided needs to be in place to ensure public safety.

“There is a delicate balance between transparency and privacy in the national law — these are often competing requirements of the national scheme”, the spokesperson said.

Dr Peter Arnold, a former deputy president of the NSW Medical Board who chaired Professional Standards Committee inquiries, said it was not fair to keep details of past disciplinary proceedings on the register once conditions were met and the reprimand was no longer relevant.

Dr Arnold has previously raised questions about the length of time conditions and reprimands are left on the register in MJA InSight. (3)

While he welcomed the decision to remove details after 5 years, he said it did not apply to decisions made before July 2010 and many doctors still had information listed on the register about disciplinary matters from previous state-based boards.

“It sounds like the [law] needs to be amended to take this into account”, he said.

– Kath Ryan

1. MJA 2012; 196: 612-613
2. Meeting of the Medical Board of Australia — 24 March 2010
3. MJA InSight 2012; Online 12 March

Posted 4 June 2012