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).
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.