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SINCE 2010, registered health practitioners have been required by law to notify the Australian Health Practitioner Regulation Agency if they believe another health practitioner has behaved in a way that constitutes notifiable conduct.
This legal requirement to report to the Australian Health Practitioner Regulation Agency (AHPRA) applies to a health practitioner who is treating another health practitioner, except in WA where the treating practitioner is exempted from this mandatory reporting.
Notifiable conduct means the health practitioner has:
- Practiced while intoxicated by alcohol or drugs
- Engaged in sexual misconduct related to or involving their work
- Placed the public at substantial risk of harm due to an impairment (health issue)
- Placed the public at risk of harm due to a departure from accepted professional standards.
This legislation was introduced following concern that the medical profession’s self-regulation had failed, after a number of high-profile cases of rogue doctors, including Dr Jayant Patel and Dr Graeme Reeves.
While this legislation affects all registered health practitioners, doctors have one of the highest rates.
AHPRA’s 2013‒2014 annual report showed 5585 doctors were notified, representing 56% of all notifications received nationally, despite doctors making up only 16% of registered health practitioners.
Of these notifications, 351 were mandatory, including 221 made for deviation from accepted professional standards, 86 due to perceived impairment, 10 for alcohol or drug use, and 28 for sexual misconduct. There have been concerns that some notifications are vexatious.
While this legislation may appear to be protecting the public, there are widespread concerns that it may be having an adverse effect.
The Australian Psychological Society has raised concerns that there are instances where mandatory reporting may actually increase risk to the public than decrease it, with practitioners being reluctant to seek help voluntarily for fear of being reported. There is evidence to support this.
Further to concerns about public safety, there are concerns for the wellbeing of doctors who may be reluctant to engage with professional help. Doctors already face barriers to accessing care. A 2013 beyondblue survey of doctors found three main barriers to seeking professional treatment:
- Lack of confidentiality or privacy (reported by 52.5%)
- Embarrassment (37.4%)
- Impact on registration and right to practice (34.3%)
There have been isolated reports of doctor suicides that may have been related to current mandatory reporting laws. Even if the contribution of these laws to doctor suicides is minimal, this is an unacceptable situation.
A minimalist solution is available to remedy the current laws and provide uniformity across jurisdictions — all states and territories should adopt the WA amendment, which includes an exemption to the legislation for doctors who are treating other doctors.
The treating doctor still has a professional and compelling ethical obligation to protect and promote public safety, and may make a voluntary notification or encourage the practitioner patient to self-report. However, they are not mandated by law to report their patient.
The AMA supports this solution.
The Council of Australian Governments Health Council is currently considering the findings of the independent review of the National Registration and Accreditation Scheme (NRAS) for health professionals. The AMA says a consultation paper prepared as part of the NRAS had found no evidence that the WA amendment had impaired the ability of the Medical Board to protect patients.
As doctors, our primary interest is to protect the health of our patients.
The current mandatory reporting laws outside of WA potentially compromise patient safety and may impair access for doctors in need of care.
The adoption of the WA amendment is an acceptable solution to this problem and the profession should advocate for it.
Dr Malcolm Forbes is a medical registrar, NHMRC Postgraduate Scholar and adjunct lecturer in the College of Medicine and Dentistry, James Cook University. Dr Margaret Kay is a GP, adjunct senior lecturer at the University of Queensland and honorary secretary of the Doctors’ Health Advisory Committee Service (Queensland).
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Just a small correction: the complexity of operations being carried out in Bundeberg and their adverse outcomes was communicated to QLD Health by doctors in Brisbane prior to it hitting the news. The bureaucrats CHOSE not to follow it up!
If patients are not at risk, the mandatory notification provisions do not apply. My advice to those treating imparied practitioners who are still practising would be to encourage them to take a break from practice during treatment and recovery. If the imparied person has insight and does not work while sick, patients are not at risk. If, on the other hand, they insist on working while impaired, notification might be the only way to bring about patient safety.
There is another issue here which has not been mentioned. It appears to me that the relevant authorities have significant shortcomings when it comes to effectively dealing with exceptionally below-standard professional conduct which is reported to them. I reported a doctor within the last 2 years, for repeatedly demonstrated incompetence, to the Medical Council of NSW; AHPRA (the doctor was already well known to that body); the HCCC; NSW Health and the Premiere’s office – the practicing arrangements remained unchanged. The entire hospital he practiced at was only too well aware of the problem, but apparently nothing could be (or had been) done by those in authority to ensure the safety of the patients who were admitted under his care. “Mandatory notification?” Just another band-aid in my opinion! Of little practical use and significant possible damage. It might simply be better to fix the current system.
Mandatory reporting is fundamentally flawed. It takes away the discretion and clinical judgment which doctors otherwise use very day in management of their patients. If a doctor is to be reported it should at the very least be by a senior practitioner, ideally a second opinion ; doctors would be very wise to seek this before reporting a colleague for apparent physical or mental impairment. The other issue is reluctance of doctors to seek help in the mandatory reporting scenario ,so it could be argued it is actually counter productive.
I exclude from this criminality or gross and wilful negligence.
While there is increasing pressure on clergy to abandon the sanctity/confidentiality of the confessional in the case of serious crime such as murder or child sexual abuse, and health professionals similarly have an ethical obligation to limit client confidentiality where comeone is in clear danger, surely the same obligation must apply to health professionals treating fellow professionals? I would make a distinction between impairment, which might require treatment without directly or immediately endangering clients or the general public, and disclosure of criminal acts such as sexual abuse, where treatment is secondary to public protection, and might not even be appropriate.