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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.
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
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
Medical Board of Australia’s Guidelines for Mandatory Notifications
Medical Board of Australia Sexual Boundary Guidelines
Medical Council of NSW’s Health Program
AHPRA’s factsheet on Health Assessments
Medical Board of Australia’s factsheet on the management of impaired practitioners and students
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:
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:
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.
Guidelines define sexual harassment as the following:
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
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.
To be notifiable conduct in this
category, there must be a ‘significant departure’ from accepted standards of
practice which includes:
There are limited exceptions under the National Law. A health practitioner does not have to make a mandatory report when they:
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.
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
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.
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
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.
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.
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:
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).
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
Contact Avant’s Medico-Legal Advisory Service for
advice on 1800 128 268.