Malcolm Forbes

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).