• Mandatory reporting

    If you are concerned that a colleague may not be practising safely and may be putting patients at risk, deciding whether to report them is not easy. It can be a cause of great stress and anxiety. Here we outline what your obligations are under the National Law’s mandatory reporting provisions, to assist you to make a decision about whether you are legally obliged to make a notification about another health practitioner.

     

    Who is required to make mandatory reports?

    Under the Health Practitioner Regulation National Law (National Law), health practitioners, employers and education providers have an obligation to make a mandatory report to Australian Health Practitioner Regulation Agency (AHPRA) about another health practitioner or a student in certain circumstances.

    All health practitioners have an obligation to report another health practitioner who is engaged in ‘notifiable conduct’ unless an exemption applies. There are 14 professions covered under the National Law and therefore it is not only mandatory to report notifiable conduct by practitioners within your profession, but also within the other professions under the National Law. The obligation to report includes students who are impaired and are engaged in clinical training as part of their course.

    What is notifiable conduct?

    You are required to notify AHPRA when you have a “reasonable belief” that a practitioner has engaged in ‘notifiable conduct’ – that is, the practitioner has:

    • practised the profession whilst intoxicated by alcohol or drugs
    • engaged in sexual misconduct in connection with the practice of the practitioner’s profession
    • placed the public at risk of substantial harm because the practitioner has an impairment
    • placed the public at risk of harm because the practitioner has practised the profession in a way that constitutes a significant departure from accepted professional standards.

    What is a ‘reasonable belief’?

    The threshold for mandatory reporting is high. Before making a mandatory notification you must form a ‘reasonable belief’ that the practitioner’s conduct falls within the ambit of notifiable conduct.

    A ‘reasonable belief’ should, as far as possible, be based on actual known events rather than anecdotal accounts. Speculation, gossip, rumours or innuendo should not be relied on to form a 'reasonable belief'.

    In deciding whether to make a mandatory notification you should eliminate any bias that may affect your decision. Bias can arise from:

    • a personal dislike of a colleague
    • expressions of dislike about a colleague from other colleagues whose opinions are highly regarded by you
    • media pressure

    What happens if a doctor is practising whilst intoxicated by alcohol or drugs?

    The National Law does not define intoxication so the word is given its ordinary meaning. The relevant consideration is whether the practitioner’s ability to practise their profession is impaired or affected due to intoxication by drugs or alcohol. Intoxication outside of work is not notifiable unless you form a 'reasonable belief' that the practitioner has gone on to practise their profession while still intoxicated.

    What are my responsibilities if I know a practitioner is engaging in sexual misconduct?

    You have a mandatory obligation to report a health practitioner who has engaged in sexual misconduct with a patient under their care or who is connected to their practice. This obligation applies whether the patient has consented or not and irrespective of whether the patient initiated the sexual relationship.

    Sexual activity with a former patient or with someone who is closely related to a current patient (this includes the parent of a patient) may constitute sexual misconduct.

    What constitutes sexual misconduct?

    The Medical Board of Australia’s Sexual Boundary Guidelines (The Guidelines) defines sexual misconduct as sexual remarks, touching patients in a sexual way, engaging in sexual behaviour in front of a patient and sexual harassment.

    How is sexual harassment defined by the guidelines?

    The Guidelines define sexual harassment as the following:

    • Unwelcome behaviour of a sexual nature
    • Discussing your sexual practices, sexual orientation or problems with a patient
    • Commenting on a patient’s sexual history
    • Requesting details about their sexual history in circumstances where it is not relevant to the presenting issue
    • Inappropriate and suggestive comments about a patient’s appearance or the way they have dressed
    • Ridiculing a patient’s sexual preferences or orientation
    • Making an unsolicited demand or request for sexual favours; this includes implied requests
    • When the patient feels they have been sexually harassed your intention is not a mitigating factor

    What do I need to be aware of if I suspect one of my colleagues might be impaired?

    Under the National Law “impairment” is defined broadly. The definition includes a physical or mental impairment, disability, disorder as well as substance abuse/dependency that affects or impairs the practitioner’s ability to practise their profession and places the public at risk of substantial harm.

    In all States and Territories except Western Australia, the mandatory reporting obligation applies to patients who are health practitioners (and students) registered under the National Law. Western Australia is the only State to exempt health practitioners who provide health care to other health practitioners.

    Although the exemption applies in Western Australia, health practitioners treating an impaired practitioner can make a voluntary notification if they form a 'reasonable belief' that the impairment could place the public at risk of harm.

    What situations are considered a significant departure from accepted professional standards?

    To be notifiable conduct in this category, there must be a ‘significant departure’ from accepted standards of practice which includes:

    • A risk of harm to patients
    • A ‘significant’ departure is something best judged by a practitioner from the same area of speciality. The departure from accepted standards should be serious and place the public at risk of harm.

    Are there exceptions to the mandatory reporting obligation?

    There are limited exceptions under the National Law. A health practitioner does not have to make a mandatory report when they:

    • know or reasonably believe that the notifiable conduct has already been reported
    • are providing advice about notifiable conduct for the purpose of legal proceedings or the preparation of legal advice (eg providing an expert opinion about whether a health practitioner has engaged in notifiable conduct)
    • work for an insurer that provides professional indemnity insurance, and become aware of notifiable conduct as a result of legal proceedings or the provision of legal advice arising from the insurance policy (eg a medical advisor working for a medical defence organisation advising a doctor about whether they are required to report a colleague)
    • are also a legal practitioner, and are providing legal services to the health practitioner who has allegedly engaged in notifiable conduct for legal proceedings or legal advice (eg a doctor who is also a lawyer and is providing legal advice about whether or not another health practitioner has engaged in notifiable conduct)
    • are members of a quality assurance committee, council or other approved body, and are prohibited by legislation from disclosing the notifiable conduct (eg a doctor who is a member of an approved quality improvement committee that is subject to statutory confidentiality provisions)

    In Western Australia only, you are exempt from the mandatory obligation to report health practitioners who consult you. In Western Australia treating practitioners can make voluntary notifications if they have concerns about their practitioner/patient’s ability to practise safely.

    Will I be penalised if I don’t make a notification?

    If a health practitioner fails to report, it is not an offence, but might result in AHPRA (or the Health Care Complaints Commission (HCCC) in NSW pursuing disciplinary action against that practitioner.

    If the employer of a health practitioner fails to report, AHPRA must give a written report to the Minister of the relevant jurisdiction. The Minister must then notify the relevant health complaints body or any other appropriate body.

    If an education provider fails to report a student, the relevant National Board must publish details of this failure on its website.

    Am I protected from liability if I make a mandatory notification?

    Practitioners are protected from liability and defamation claims when reporting another practitioner, as long as the report is made in good faith. The final outcome of a complaint does not matter. The National Law provides that:

    • a person is not liable, civilly or criminally or under administrative process for giving information
    • the making of a notification or giving information does not constitute a breach of professional etiquette or ethics or a departure from accepted standards of professional conduct
    • no liability for defamation is incurred by the person because of the making of the notification or giving information
    • protection extends to a person who, in good faith, provided the person with any information on the basis of which the notification was made or the information was given
    • protection also extends to cover a person who, in good faith, was otherwise concerned in the making of the notification or giving information.

    In NSW a mandatory report is deemed to be a complaint and as such is protected under the Health Care Complaints Act. Under that Act the person making the complaint is exempt from liability and defamation claims, provided that the report is made in good faith.

    AHPRA’s guidelines for mandatory notifications confirm that practitioners who make notifications that are frivolous, vexatious or not in good faith in future may be subject to disciplinary action.

    What should my first steps be if I have concerns about a colleague?

    If you have concerns about a colleague, we recommend that you carry out some research and obtain advice from your colleagues (confidentially), your college or professional body, or medical defence organisation so that you can be satisfied that the threshold is met and a mandatory report is required.

    A difference of opinion is not a reason to make a mandatory notification, and a notification arising from a mere difference of opinion or motivated by a desire for commercial advantage is deemed to be in bad faith.

    How do I make a notification?

    Notifications should be submitted to AHPRA as soon as practical once you form a 'reasonable belief' that a practitioner has engaged in notifiable conduct.

    Notifications can be made verbally or in writing. You can notify AHPRA by:

    • Calling 1300 419 495
    • Completing a notifications form and submitting it by post
    • In person at an AHPRA office

    For events that took place in NSW, you should also contact the HCCC (but note that making a complaint to the HCCC directly does not discharge the mandatory obligation to report notifiable conduct to AHPRA under the National Law).

    What should I do if I have further questions?

    If you have any doubts about whether you should report another health practitioner, we recommend that you obtain advice from your colleagues (confidentially), your college or professional body, or medical defence organisation so that you can be satisfied that a mandatory report is required.

    Contact Avant’s Medico-Legal Advisory Service for advice on 1800 128 268.

    Cautionary Tale

    Tips

     

    Things to consider if you are concerned about a colleague

    • Focus on safety – is your colleague putting patients or themselves at risk?
    • Are your concerns based actual knowledge or speculation, gossip or rumours?
    • Do you have all the facts?
    • Are your concerns influenced by any conscious or unconscious bias – personal dislike, media, and competitive interests?
    • Is there a range of acceptable practice? Your colleague may be practicing in accordance with proper standards, even if you don’t follow the some practice
    • Have you tried gently raising the issue with your colleague in a supportive way?
    • Have you spoken confidentially with colleagues, your college or other professional body to gauge their views?