Mandatory reporting and impairment

Aug 24, 2017

In a move that has been generally welcomed by the profession, at its August meeting the COAG health council supported a consistent national approach to mandatory reporting provisions. The health ministers agreed that "doctors should be able to seek treatment for health issues with confidentiality, whilst also preserving the requirement for patient safety."

A discussion paper and consultation process is to be conducted with consumer and practitioner groups. A proposal is to be put to the COAG Health Council meeting at its November 2017 meeting and the expectation is that the amendment would be progressed as part of the next package of amendments to the National Law (Tranche 1A).

Avant has been calling for a nationally consistent approach and also welcomes these steps towards change. The issue remains a source of concern and confusion for our members, so until the framework changes it is important to understand your obligations. We recently published this article in Australian Doctor which outlines the issue.

Mandatory reporting and impairment

You are a GP and your next patient, a doctor, has a history of mental health issues. She is currently on sick leave following a near miss involving patient care two weeks ago which exacerbated her anxiety, but she is being pressured to return to work. She is not sure whether she is ready to return to work and is concerned she will be putting patients at risk. She attends seeking your help and is keen to follow your advice.

Along with all the challenges of assisting a patient in distress, because your patient is also a health practitioner, in this situation you need to consider whether your patient’s conduct is notifiable and whether you are obliged to report them to the Australian Health Practitioner Regulation Agency (AHPRA). Although mandatory reporting has been in the National Law since it was enacted seven years ago, in Avant’s experience the legislative requirements still cause confusion. The provisions relating to impaired practitioners cause particular concern as highlighted in recent media reports.

What do health practitioners have to report?

As a health practitioner, you must notify AHPRA when you have a reasonable belief that another health practitioner has:

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

These constitute ‘notifiable conduct’ under the legislation. There are some exemptions discussed below. The obligation to report includes students who are impaired and are engaged in clinical training as part of their course. A “reasonable belief” should not be based on speculation, gossip, rumour or innuendo.

There is no simple solution to this scenario. If you believe your doctor-patient did not raise a public safety concern, you do not need to notify AHPRA. If you believe your patient’s conduct has raised a public safety concern, the jurisdiction in which you practise determines your obligation to notify.

In Western Australia, you are not obliged to notify AHPRA if you form your belief about the notifiable conduct in the course of providing health services to the practitioner (the WA treating practitioner exemption).

In Queensland, since 2013, there has been an exemption for treating practitioners who reasonably believe the otherwise notifiable conduct ‘relates to an impairment which will not place the public at substantial risk of harm and is not professional misconduct’. The effect of this is that you only have to report if you have a reasonable belief that there is a future risk to the public and the practitioner has engaged in professional misconduct.

AHPRA has published guidelines about mandatory notifications which explain practitioners’ obligations and provide practical guidance on how to decide whether you have an obligation to notify.

Why are these provisions problematic?

Confusion remains about mandatory reporting obligations. Because the section defines notifiable conduct in the past tense (“placed the public and risk” and “practised while intoxicated”), conduct that occurred in the past is notifiable, even if there is no future risk. This seems inconsistent with statements from the Medical Board of Australia that “[a]n unwell practitioner whose health is being well managed does not need to be reported to the board”.

Problems also arise because:

  • The legislative requirements are complex – what is “a risk of substantial harm” (as it relates to impairment), versus “risk of harm” (as it relates to departure from accepted standards”); what is a significant departure from accepted standards?
  • Practitioners are often unsure about whether they have formed a “reasonable” belief, as distinct from a mere suspicion or concern.
  • The legislative requirements may be inconsistent with practitioners’ ethical obligations, which would be to report based on present or future risk of harm.
  • The legislative requirements may have the effect of deterring unwell practitioners from seeking treatment. The evidence suggests that fear about being reported is a barrier to practitioners asking for the help they need.

Since these provisions were first proposed, there have been calls for governments to amend the legislation to clarify the reporting obligations and to adopt the WA treating practitioner exemption nationally.

What happens in practice?

The legislation is at odds with current practice. Research into mandatory notification data indicates that in practice treating practitioners report their practitioner-patients relatively infrequently and generally where the doctor-patient relationship was compromised because of dishonesty, lack of insight, a disregard for patient safety or an intention to self-harm.

Other exemptions

Medical practitioners also do not need to notify if they know or reasonably believe that the conduct has already been reported, or if they are:

  • providing advice about notifiable conduct for the purpose of legal proceedings or the preparation for legal advice
  • working for an insurer that provides professional indemnity insurance (such as an MDO), and become aware of notifiable conduct as a result of legal proceedings or the provision of legal advice arising from the insurance policy.
  • 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.
  • a member of a quality assurance committee, health professional council or other approved health body, and are prohibited by legislation from disclosing the notifiable conduct.

Further questions?

This article has focused on mandatory reporting of impaired practitioners and was originally published in Australian Doctor. For more information about all of the other categories of reportable conduct see:

For more information on the arguments for introducing the treating practitioner exemption nationally see:

Goiran, N, Kay, M, L, Nash & G, Haysom 2014, “Mandatory reporting of health professionals: The case for a Western Australian style exemption for all Australian health practitioners” Journal of Law and Medicine, Volume 22/1, pp.188-209.

More information from our Medico-legal Advisory Service

If you are unclear about your ethical, professional or legal obligations, visit our Medico-legal Advisory Service (MLAS) web page or for immediate advice, call our MLAS on 1800 128 268, 24/7 in emergencies.

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