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“LEGISLATION that sends a signal that mental illness [in doctors] could potentially be punished is about a century out of date,” says Professor Stephen Robson, who last month spoke out in MJA InSight about his attempt to take his own life during his internship 30 years ago. His story was later reported in several mainstream media outlets.
Professor Robson’s comments came as medical organisations were urging the Queensland Parliament to address concerns regarding mandatory reporting provisions within the Health Practitioner Regulation National Law and Other Legislation Amendment Bill 2018, which was introduced to the Queensland Parliament in late October.
The Bill, according to its explanatory note, will do little other than “align Queensland’s approach to mandatory reporting by treating practitioners with the approach in the National Law by removing a Queensland-specific provision”.
The National Law requires registered health practitioners, including treating practitioners, and employers to notify the Australian Health Practitioner Regulation Agency (AHPRA) if they “reasonably believe” another registered health practitioner, or medical student, has behaved in a way that constitutes “notifiable conduct”. Notifiable conduct is defined as such when a practitioner has, among other things, “placed the public at risk of substantial harm in the practice of their profession because of an impairment”. An impairment is defined as “a physical or mental impairment, disability, condition or disorder (including substance abuse or dependence) that detrimentally affects or is likely to detrimentally affect … the person’s capacity to practise the profession”.
Both the Australian Medical Association (AMA) and the Royal Australian College of General Practitioners (RACGP) have said the new Bill fails to take account of concerns raised around mandatory reporting.
The model of mandatory reporting in Western Australia, which many hoped the Queensland Bill would emulate, exempts treating practitioners from mandatory reporting for all forms of notifiable conduct if their patient is a registered health practitioner.
“However, treating practitioners may make voluntary reports based on their professional and ethical obligations to report matters that may place the public at risk of harm.”
Professor Robson, who is President of the Royal Australian and New Zealand College of Obstetricians and Gynaecologists (RANZCOG), said: “Health ministers are deluded if they think the system is working at the moment.
“If the law enshrines a prejudice against doctors who suffer mental health issues, this forces doctors to hide their problems and continue to work. It’s a ridiculous situation. It has to change.”
Professor Robson said pregnancy, birth and newborn care were among some of the of the highest stress clinical areas.
“Split-second decisions have to be made and lives are at risk. To work in the environment, doctors have to be in peak mental condition. RANZCOG supports doctors so they can support the women and babies they care for. It’s pretty simple.”
GP Dr Kate Tree, who completed her internship alongside Professor Robson, responded to his recent column by recounting how she was among the young doctors who had tried to support Professor Robson at his time of distress.
Dr Tree said the Australian community’s awareness of mental health issues had vastly improved since the 1980s, but the mental health needs of medical practitioners had been neglected.
“Doctors, like the wider community, need to face our human challenges of grief, loss, despair, dysfunctional families, relationship challenges — any problem that the rest of the Australian community might face. Yet, for doctors, these challenges may be combined with highly adverse working environments, abusive or violent patients, demoralising bureaucratic or administrative demands, or harrowing scenes of physical trauma or emotional pain that are bonus features of doctors’ working lives,” Dr Tree told MJA InSight.
“If someone needs backup, the medical and health community should be able to provide whatever support or help or understanding is needed for that individual. There should not be a risk of ‘career suicide’ resulting from mandatory reporting, because legislators have not thought through the consequences of their choice of words.”
The Queensland Bill has now been referred to the Health, Communities, Disability Services and Domestic and Family Violence Prevention Committee for detailed consideration, with submissions open until 26 November. The committee is due to report by 4 February 2019.
Under Council of Australian Governments (COAG) processes, Queensland is the host jurisdiction for the National Law, and the Bill will influence legislation in all Australian states and territories, except for WA, where mandatory reporting exemptions apply for treating doctors.
The AMA and RACGP are calling for the national law to more closely reflect the protections provided to doctors in the WA legislation.
AMA President Dr Tony Bartone said the law needed to “provide confidence and peace of mind to doctors and medical students that they can seek mental health care without fear of reprisal or threat to their medical careers”.
“We do not want to see any more doctors or students taking their own lives because they were afraid to seek care,” he said.
The AMA, which has outlined its concerns in a submission to COAG, called on other Health Ministers to push for changes.
“They must match their strident stated public concern for doctors’ health with some legislative action rather than hide behind the secrecy of a COAG meeting,” the submission reads.
On its website the RACGP said it was “deeply disappointed” with the lack of change in the Queensland Bill.
“The RACGP has repeatedly called for complete exemption from mandatory reporting requirements for treating health practitioners, in line with Western Australia’s model,” they said, adding that the College had again voiced its concerns in a submission.
Professor Robson said several factors hindered doctors with mental health concerns in seeking care under the current legislative arrangements.
“The first is that your judgement is flawed, and that affects decision making. Many doctors don’t trust AHPRA. They don’t trust AHPRA to give them a fair hearing, or they see the potential for issues to be put up on the AHPRA website. That alone has the potential to ruin a good doctor’s reputation,” Professor Robson said.
“For doctors to seek help, there need to be clear legislative rules that protect them. Anything else is not only a danger to doctors, but by frightening them away from seeking care, it puts their patients at risk. In 2018, it’s totally unacceptable and health ministers need to stop playing politics.”
Professor Robson said the WA model addressed these problems, and agreed that it should be adopted nationally.
Several of the 128 online responses to Professor Robson’s story in MJA InSight named mandatory reporting requirements as a contributing factor to the current silence and stigma surrounding mental health issues for medical practitioners.
One anonymous commenter wrote: “I made the mistake of letting my mental health issues come to the fore with AHPRA and [am] suffering the consequences. Many people never seek help because they will be penalised in a punitive system. It is not safe.”
In an online poll accompanying the story, 58% of respondents disagreed or strongly disagreed with the statement: “Doctors can disclose their mental illness to their doctors without fear for their career.”
Professor Robson said the cultural barriers to seeking care that he encountered 30 years ago still existed today.
“The fact that I was embarrassed to talk about my own issues from three decades ago says it all. I can only imagine the misery that my colleagues, particularly junior ones, go through,” Professor Robson said. “The culture of medicine has to change – and change urgently.”
Dr Tree agreed, adding that legislative change was a crucial first step in ensuring a healthier medical workforce culture. She said if WA was able to establish a working model that was supportive of doctors and protective of the public, it seemed logical that other states and territories could follow suit.
“Why shouldn’t we at least be trying to aim for a ‘best case scenario’, with all states having matching and carefully worded legislation, so it doesn’t matter in what state a doctor happens to be living or working,” she said. “It is not in the best interests of patients and the general public to have legislation that can be interpreted in ways that cause doctors to be harmed.”
Georgie Haysom, Head of Advocacy at Avant Mutual Group Limited, said it was disappointing that Health Ministers did not adopt the WA model at the COAG’s meeting earlier this year.
“In our view, this would have been the simplest way to remove the barriers and strike the appropriate balance between protection of the public and ensuring that doctors can seek help when they need it,” Ms Haysom told MJA InSight. “There is still a lot of stigma around talking about mental health issues and seeking treatment, so we think that would have been the best way to deal with that.”
Ms Haysom said the wording of the current legislation had the potential to cause confusion among doctors, and this could lead to over-reporting.
“Some parts of the new legislation could provide some reassurance to doctors,” she said, pointing to the list of factors that a treating doctor can take into account when considering impairment. “However, it will be really important that these [factors] be communicated clearly to doctors. We have had 8 years of confusion about how these laws apply generally to health practitioners and we are fearful that we will get another 8 years of confusion as a result of these changes.”
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This submission to the Queensland parliament committee is relevant to mandatory reporting.
Queensland Parliament
HEALTH, COMMUNITIES, DISABILITY SERVICES AND DOMESTIC AND FAMILY VIOLENCE PREVENTION COMMITTEE
Health Practitioner Regulation National Law and Other Legislation Amendment Bill 2018
Dear Committee,
I hope that you change the Health Practitioner Regulation National Law and Other Legislation Amendment Bill 2018 to make it reflect the model legislation on mandatory reporting running successfully in Western Australia. As a psychiatrist I was pleased to see RANZCP president, Dr Kym Jenkins, support the WA model as reported in the Australian Doctor newsletter on 5 November 2018 below:
“Dr Kym Jenkins, who is the president of the Royal Australian and New Zealand College of Psychiatrists and a former medical director of the Victorian Doctors Health Program, says treating doctors should be exempt from mandatory reporting altogether. ‘I’m disappointed that it isn’t changing more because my experience is that we don’t really need mandatory reporting. It just creates confusion for our patients,’ Dr Jenkins said.”
As a physician who treats medical practitioners I support the AMA in asking the federal and state governments to change the current mandatory reporting legislation to the model running in Western Australia. That legislation exempts treating doctors from mandatory reporting requirements.
Mandatory reporting can dissuade medical practitioners from seeking treatment, especially psychiatric treatment. As physicians we know that it is so important to try to prevent individuals in distress and perhaps thinking of self-harm from becoming isolated. Removing barriers to treatment for our medical colleagues is a priority.
I understand from hearings of the Committee (12 November) that any registered health practitioner (eg. doctor, psychologist) staffing a doctors’ (or general public) helpline would be subject to mandatory reporting requirements if a doctor contacted the helpline for assistance or guidance about where to get help. This imposition of mandatory reporting is entirely unsatisfactory for at least two reasons. It would deter a doctor from even starting the process of getting help for a medical or mental health condition and then seeking treatment. And a health practitioner staffing a helpline would only be in possession of limited information from a doctor calling a helpline for assistance and therefore would not be in a position to make an informed decision to make a mandatory report. Doctors’ helplines should be exempted from mandatory reporting requirements.
The WA legislation regarding mandatory reporting has not resulted in any loss of protection for patients. Indeed it could be argued that the WA model of exempting treating practitioners from mandatory reporting of notifiable conduct if their patient is a registered medical practitioner is beneficial for the wider community of patients as it encourages doctors with mental health (and other) problems to come forward for treatment. The WA legislation does not remove from treating doctors their professional and ethical obligations to report matters that may place the public at risk of harm; it just does not make this mandatory.
I hope the Committee will take these remarks into account and change the Bill.
AHPRA is out of control and no one, not even the national health practitioner and privacy ombudsman office has any power whatsoever to wield over them and keep them accountable. I believe the ombudsman is also funded by AHPRA, so much for independence.! There have been senate inquiries but there needs to be a royal commission into AHPRA ‘s lack of transparency, abuse of power and incompetence. Doctors and the community are suffering and AHPRA are not fulfilling their role as protectors of the public. The medical board needs to stand up also. Threats and punishments are killing doctors.
AHPRA has no responsibility for returning doctors to work after an episode of mental illness & recovery.
They trot out the old adage ‘protecting the public’, when the issue may have been self prescribing ( in therapeutic dose),
to disguise the doctor’s illness.The decision making process can take up to a year for the now recovered doctor
to return to work. It is as if punishment is the treatment for mental illness, the doctor can not be trusted.
AHPRA is damaging to the doctor’s recovery,well being , & confidence.
Who monitors AHPRA?
I am interested in the advice of Professor Robson to a treating practitioner who has a practitioner -patient, and who knows that the practice of this practitioner-patient is putting their patients at unacceptable risk.
AHPRA fail to act on mandatory reports. There is no point in reporting sexual misconduct . If the victim can’t or won’t cooperate, AHPRA won’t act on it and reporting will likely destroy a potential healing relationship for the victim. For victims who do cooperate, it takes a standard four years for the complaint to get to hearing along with victim blaming and contemptuous treatment by AHPRA. The system as it stands abuses doctors and the public who experience unethical treatment. Very many doctors with mental health issues function very competently and should not be persecuted for seeking assistance. They are probably the ones least likely to cause harm to patients.
I am not aware of any evidence that shows that there has been any increased “risk to the public” of Western Australia as a result of the WA legislation.
I am a doctor who has treated a number of health professionals and I know that some colleagues have withheld important parts of their medical/psychiatric history from me, out of fear of being reported to AHPRA.
I have seen no explanation from COAG and other bodies who have considered this matter, as to why the WA model was not adopted Australia-wide.
In my view, the only sensible approach is to adopt the WA model throughout Australia.
It is an ongoing concern that the regulatory bodies have been de-professionalised , to the degree that there can be no confidence that the regulatory officers have any idea of what constitutes risk. I have been dismayed by the ignorance and absence of perspective & experience in AHPRA and OHO officers. It is dangerous that people with no concept of professional behaviour are regulating people who are working in highly complex demanding professional roles
What a terrible mistake it has been to put registration governance of our professions (i.e. Medical) in the hands of non professionals who have no real idea of what it takes, what’s involved and how to effectively help.
More like five centuries back to the Inquisition, thanks to the enthusiastic embrace of the principle of punishment combined with the assumption of guilt, rather than a systems approach to prevention by AHPRA and the Medical Board of Australia. @MGliksmanMDPhD
This problem is not new in Australia and is only able to exist because of the National Registration system in Australia changes that has occurred, but in doing so led us to have a National “Regulation” authority with different jurisdictions and separate rules. We now have a dreadful Regulation system that is poorly run, has different rules and outcomes and has probably been associated with repetitional damage, several suicides, financial distress, family breakup, and loss of employment amongst not only medical practitioners but also all those health other groups registered by AHPRA. After two Senate enquiries with the problems being Recognised nothing has changed.
Recently read: “Also Human – the Inner Lives of Doctors” by Caroline Elton. Makes for sobering reading and although largely drawing from the NHS experience, I’m sure it will resonate with our local colleagues. HIGHLY recommend it along with “This Is Going to Hurt” by Adam Kay, a previous O & G NHS trainee who left medicine. The latter is lighter and a cracking read – funny but poignant. I kept nodding in recognition of the craziness of our job. To all our colleagues who I know are suffering through the maelstrom that is the pre Christmas blitz – you are valued, you are worthy and you must speak out. We are one tribe, one family and no one else understands better.
I strongly agree with Professor Robson, that the mandatory reporting provisions in the National Law mean that mental illness among health professionals is dealt with by a disciplinary process and that this approach is unique and outmoded.
The Law is bad law, because it makes doctors, who see other health professionals with mental illness, vicariously liable for their conduct. If, under the current regimen, a treating doctor decides that his health practitioner patient is fit to practice, with or without treatment, and the practitioner then comes to the notice of the regulatory body, the fact that the treating doctor did not make a “mandatory” report will make him or her the subject of a notification and possibly investigation and he or her will be required to justify the decision not to make a report. Therefore treating doctors will play safe and make notifications.
The Medical Board of Australia has stressed the importance of thresholds for reporting, but these are likely to be ineffective in the face of possible sanctions.
We know that mental health outcomes, such as suicide are very difficult to predict and vicarious responsibility is an unreasonable imposition on treating doctors.
This is such an appalling situation that Doctors are being encouraged not to seek help for fear of AHPRA . The literal sword of Damocles. Mental illness we tell the rest of the population is treatable and we encourage help seeking except for doctors!