There is increasing pressure on regulators to take proactive steps to prevent harm to the public and a desire to protect regulators from criticism and perceptions of regulatory failure. This has informed the latest round of proposed changes to the National Law that regulates health practitioners. Avant is concerned about proposing more regulation on the assumption it will protect the public but where there is little evidence it will do so.
The current proposals have been the subject of a recent consultation. The lengthy consultation paper has 60 questions on a range of matters. The consultation raises some of the more contentious issues to come out of the various reviews of the National Scheme since it was established in 2010.
Imposing more regulation without strong evidence of benefits to the public is contrary to the principle of less-but-more-efficient regulation. Regulation based on extreme cases or outliers can be disproportionate and unfair when applied to the majority: “hard cases make bad law”.
Avant has made a submission to the consultation. Our positions on some of the key issues raised in the consultation are:
Chairperson of the National Medical Board
The chairperson of the Medical Board should always be a doctor, to ensure the chairpersons can make authoritative statements about clinical matters, and to maintain the confidence of the profession.
Disclosure of professional negligence settlements and judgments to the regulator
We oppose proposed amendments that require reporting of professional negligence settlements and judgments to the regulator because the purported benefits do not outweigh the costs, and there are several potential unintended consequences. Settlements and judgments do not necessarily indicate poor performance and reporting settlements and judgments will not in our view facilitate early detection of poorly performing practitioners.
Extent of information included on the health practitioner register
We believe there is sufficient information on the public register and no additional information is needed. Transparency for the public needs to be balanced against fairness to practitioners. Any disciplinary information published on the register should be removed once it is no longer required (for example, expired conditions and undertakings), and after five years as long as there have been no other relevant events. Practitioners subject to disciplinary action should be allowed to get on with their lives without stigma when there is no longer any risk to the public. Details about impairment and health-related conditions and undertakings should never be published on the register.
The challenges of the constantly changing social media environment are highlighted by the way in which the National Law deals with advertising, particularly the prohibition on the use of testimonials. One proposed option is the legislation be amended to confirm that the prohibition on testimonials applies only to websites and social media over which the practitioner has direct control. This would provide some reassurance to practitioners. However, the drafting of any proposed legislation will need to be carefully considered to ensure it clarifies the situation rather than further confuses it.
Regulatory process improvements
While we oppose some of the proposals, we do support changes to the National Law and policy that improve regulatory process and make them more flexible, efficient, timely and cost-effective. We support changes that reduce the significant impact regulatory processes can have on practitioners’ personal and professional lives and their reputation.
Ministers are expected to consider the advice and recommendations arising from the consultation process in the first half of 2019, with the preparation of draft legislation, if required, during the second half of 2019.