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A GROUP of second year medical students recently told me they avoid consulting their own doctor for fear of a mandatory notification to the Australian Health Practitioner Regulation Agency (AHPRA). They referred me to ongoing media reports claiming that the amended National Law will deter doctors and students from seeking mental health care and result in further suicides.
It is a travesty that the medical profession is continuing to scaremonger about a law it cannot change. In doing so, we are spreading misinformation about help-seeking to younger generations of practitioners and students, who have high levels of mental health issues (here, here and here).
It is true the law is complex (here and here), which is why our medical organisations should be providing a constructive clinical interpretation of when a “reasonable” treating practitioner should make a mandatory notification. In the absence of this, we are over-reporting and failing our colleagues when they need our help most.
Here are the facts
In 2018–19 under the old law, there were a total of 470 mandatory notifications out of nearly 120 000 registered medical practitioners Australia-wide for all causes (up from 343 the year before), with only 83 related to impairment received by AHPRA and the Health Professionals Councils Authority. None of the doctors had their registration cancelled, suspended or were disqualified for impairment. Two-thirds of the cases ended with no regulatory action needed at all, which suggests most notifications for alleged impairment were unnecessary.
From time to time, we hear of investigations by our regulators, which have been profoundly distressing for already vulnerable practitioners or students. However, as most of these notifications currently do not meet the threshold under the National Law, it is not helpful to blame Aphra or the Medical Board for following due process after a report has been made. For constructive change to occur, our medical organisations must provide consistent messages and evidence-based education about the clinical criteria for initiating a valid mandatory notification.
When should we make a notification?
Under the amended National Law, a treating doctor caring for another health practitioner or student must have “sufficient grounds” and solid evidence that their patient is posing an ongoing substantial risk of harm to the public. “A reasonable belief” is based on a thorough psychiatric assessment including the level of insight of the patient, the effectiveness of mental health treatment and whether the practitioner- or student-patient requires time off work to recover. It is a clinical, not a legal assessment.
“… a doctor with an impairment who takes time out to deal with it, or who is receiving treatment that will remove the risk to the public, does not need to be reported, because there is no ongoing risk,” which has been reiterated a number of times publicly by Dr Anne Tonkin, Chair of the Medical Board.
Possible legal consequences for the notifying doctor
We must understand it is not an offence under the National Law for failing to make a mandatory notification, but in rare cases, a treating doctor may have their clinical assessment reviewed if their health practitioner-patient later causes harm to the public. It should be emphasised that doctors should not make a mandatory notification simply out of a fear of being sanctioned if they don’t make one.
On the other hand, doctors who make a mandatory notification of another health practitioner in good faith have Statutory Protection against litigation. However, Statutory Protection is not iron-clad. It is possible for “good faith” to be legally challenged if there are any flaws in process, evidence or documentation by the reporting doctor.
We must also balance our considerations with the multitude of health-related Acts and the Privacy Act 1988, which impose serious penalties on treating doctors for breaching patient confidentiality, including the privacy of our practitioner- or student-patients.
For all these complex reasons, it is essential for doctors to seek guidance from their medical defence organisations to discuss every unique case and to also ensure there is comprehensive documentation of the evidence supporting a mandatory notification (or not).
In conclusion
It’s worth reflecting on the fact that as doctors we have a responsibility to comply with the law in many aspects of our work. We report parents who abuse their children, bus drivers who are unfit to drive; pilots who are unfit to fly; and acutely psychotic patients at risk of harming themselves or others. It is entirely reasonable and expected that we report health practitioners and students to AHPRA or the Medical Board if they are practising while intoxicated by alcohol or drugs, engaging in sexual misconduct with patients, departing significantly from accepted professional standards or are at risk of placing the public at substantial risk of harm because of an impairment.
However, the threshold is high, and soon to be higher, for reporting impairment in practitioners and students, and in most circumstances, a notification won’t be needed as mental illness can be treated successfully.
Clinical Professor Leanne Rowe is a GP, current Chairman of Nexus Hospitals, a non-Executive Director of the Medical Indemnity Protection Society, past Chairman of the Royal Australian College of General Practitioners, and co-author of Every Doctor: healthier doctors = healthier patients. www.everydoctor.org
All her views in this article are her own. She is not employed by Ahpra or the government.
The statements or opinions expressed in this article reflect the views of the authors and do not represent the official policy of the AMA, the MJA or InSight+ unless so stated.
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Anonymous says:
January 21, 2020 at 11:37 pm
AHPRA in its commendable and unquestionable protection of public, blindly pursues the unfortunate doctor without any fair and objective investigation relying on the questionable integrity of the notifier. It destroys the life of the doctor in all its entirety both professionally and personally. Therefore any reporting to APHRA must be done with extreme caution and conscience. There will be very few doctors who do not have morbid fear of APHRA
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I agree with the above comment.
I was mandatory reported by a medical administrator of a hospital in January 2017 for having clinical depression in the second half of 2016. I was cleared by my psychiatrist for going into remission in February 2017. However, I had to go through a whole lengthy process by AHPRA which has resulted in the change of my AHPRA registration from General to Conditional. Since 2017, I have lost a work contract, I lost my specialist training position and permanent income. I have not been offered a job back in the hospital in subsequent 3 years despite numerous applications. I went into debt. and still in debt. While AHPRA serves to protect the welfare and safety of the public, they are nemesis to the unfortunate reported health professionals. Is there any wonder why health care professionals with clinical mental illness are not self reporting or avoid being reported to AHPRA?
Despite all assurances as to the trivial risks involved, there will be persistent hesitation before committing a patient/colleague to a due process with all the selectivity and sensitivity of a mincing machine. Significant over reporting is a fact. An alternative explanation to misunderstanding the criteria might again be fear, albeit irrational, of being irreparably damaged by the same mincing machine for failure to report. We need a sensitive mincing machine with serious empathy, more kiss and less bite.
This article was written to encourage doctors and students with mental health issues to seek help without fear of mandatory reporting. In 19/20 there is evidence of significant overreporting presumably because our profession does not understand the criteria for making a notification. Our response as a profession should be to fully debate the issues objectively and provide evidence based education. In the absence of this we are failing colleagues who feel vulnerable when they need our help most.
AHPRA in its commendable and unquestionable protection of public, blindly pursues the unfortunate doctor without any fair and objective investigation relying on the questionable integrity of the notifier. It destroys the life of the doctor in all its entirety both professionally and personally. Therefore any reporting to APHRA must be done with extreme caution and conscience. There will be very few doctors who do not have morbid fear of APHRA
Well done Dr Rowe! An excellent article summarising the complexities associated with the issue of health providers with mental health problems who require our help with compassion, kindness and honesty, and providing them the safe opportunity to seek adequate treatment confidentially without the fear of being reported to AHPRA.
Also congratulations to AHPRA for helping to pass the New Law that will hopefully reassure medical students and doctors they can seek help without feeling fear. Thank you!
Dr Rowe, the key point in your admirable comment is “due process” The central message from lamentable history of attempts to establish “health complaint units” in Australia is that they are doomed to cause more harm than good unless they have the trust and confidence of providers as well as consumers of health care. In this regard, in my opinion, AHPRA is a dismal failure. Our political masters, the ultimate controllers of AHPRA and the Medical Board having created this mess “protecting the public” should hang their heads in shame.
It is not only “mandatory notifications’” that have caused a problem but also ordinary notifications can cause harm. Having had two notifications each with several fallacious complaints I can verify from personal experience tat the process that AHPRS undertakes damages your reputation , causes family, financial and personal damage and the notifier suffers no consequence and is able to walk away with a wry smirk on their dishonest face. The author should talk to those who have had that experience before defending this destructive system
Dear Dr Breen and Dr Morris,
I do not have a ‘rosy view’ of mandatory reporting: ‘From time to time, we hear of investigations by our regulators, which have been profoundly distressing for already vulnerable practitioners or students. However, as most of these notifications currently do not meet the threshold under the National Law, it is not helpful to blame Aphra or the Medical Board for following due process after a report has been made. For constructive change to occur, our medical organisations must provide consistent messages and evidence-based education about the clinical criteria for initiating a valid mandatory notification.’
While I also agee that the WA model is preferred, unfortunately the strong advocacy of the medical profession did not result in these amendments to the National Law. This was largely because of the strong advocacy to goverment by consumer and other groups about the need to ‘protect the public’. Whether we agree with this or not, the reality is that as the new Law with amendments has now been passed by Parliament in 2019, there are unlikely to be any further amendments in the foreseeable future. With this in mind, I wrote this article as a clinical interpretation of the New Law to reassure medical students and doctors they can seek help without fear. I welcome informed debate on this topic which is why I wrote the article. However, many doctors and medical student are currently under the impression that they should go to WA if they need help. This is scaremongering and unhelpful for our colleagues who are feeling vulnerable.
Our message should be this: ‘The threshold is high, and soon to be higher, for reporting impairment in practitioners and students, and in most circumstances, a notification won’t be needed as mental illness can be treated successfully’. Leanne Rowe
Dear Dr Breen and Dr Rowe, I agree that the WA model of reporting is preferable to that demanded by AHPRA in the other states. Where is the evidence that the ethical reporting obligations of the WA model are deficient? Dr Rowe states “It is a travesty that the medical profession is continuing to scaremonger about a law it cannot change”. Why is it scaremongering when medical profession representatives argue the WA model is preferable to the AHPRA demands? And bad legislation can be changed if needed – the process is called an amendment!
I doubt that Dr Rowe would have such a rosy view of mandatory reporting if she had been the subject of an unnecessary report to AHPRA. The harm done to some doctors in this lengthy bureaucratic process can be immense. These doctors are reluctant to go public for reasons of privacy and for fear of later unsympathetic treatment by AHPRA. As still exists in WA and as was advised to the Health Ministers by their own consultant, Mr Kim Snowball, the obligation to report should be an ethical one and not a legal one. It is deeply disappointing that Dr Rowe chooses to call those* who argue against mandatory reporting “scaremongers”. And it is bizarre that she unilaterally declares that the legislation cannot be amended.
*See for example https://blogs.bmj.com/bmj/2019/06/10/australias-health-ministers-ignore-concerns-about-mandatory-reporting-of-unwell-doctors/
Well done Leanne. This article is completely on point.
We need the rhetoric to change in the profession, to stop the ‘mandatory reporting effect’ of deterring doctors from attending to their own health and appropriately seeking medical attention.
This area remains a hotbed of unintended consequences. The notifying practitioner must make delicately balanced judgements and runs a risk of being judged on their performance. One must judge “departing significantly from accepted standards”, evaluate “substantial risk of harm” knowing that “statutory protection is not ironclad” and one’s “clinical assessment may be reviewed” while navigating a jungle of privacy bear traps.
The fact that the risks are tiny is immaterial given that AHPRA from its inception is perceived as a threat and has done nothing to gain the respect and support of registrants. It has surrounded itself with literally mountains of legal and bureaucratic gobbledygook which ordinary mortals perceive as threatening.
The legal and bureaucratic professionals should fight this out. I suggest a solution is for the affected practitioner to put the matter in the hands of their indemnity provider and accept their written advice in full. The indemnity provider should then bear liability.
Great article. Much needed.
In my experience, public hospital administrations are among the worst offenders with inappropriate notifications, and in the lack of appropriate manners in making the notification eg not even discussing the issues with the practitioners.
Too often it is junior doctors who are badly managed in this way, which seems to reflect their relatively powerless status, and the misuse of authority / power by the administrations in the guise of being seen to be acting virtuously, even when in fact their methods are reckless, and damaging.
The trouble is NOT the law, but the misinterpretation and misuse of the law.
Excellent article Leanne.
Succinct and to the point.
Very interesting article, thank you.
The major concern is not when I believe a medical practitioner is a danger to the public but that AHPRA and the Medical Board can so easily harm (and have harmed) practitioners in a less than reasonable manner. I strongly suggest the procedure for caring for colleagues who may be struggling should consist of:
1. Verify facts
2. Gentle approach from a collegial friend or acquaintance
3. Non-punitive approach from senior colleague
4. Referral to appropriate College
5. THEN notification to AHPRA
This approach would minimise the number of false accusations levelled at practitioners which when made are impossible to erase and can only serve to harm. I strongly believe that a caring approach is far more likely to produce a positive outcome for practitioners and the public than the current punitive approach of AHPRA and the Medical Board. It is little surprise that nearly all medical practitioners do not trust AHPRA or the Medical Board to “do the right thing”.
Well said Leanne. Every registered health practitioner has an obligation to make sure they are fully informed about mandatory reporting and when it is applicable. No excuses it has been clearly explained in many forums and is on the Medical Board/AHPRA website. Unfortunately misunderstanding by health practitioners has actually caused more harm through inappropriate reports which have caused stress fo those individuals.