Review leads to abandonment of chaperoning in all but exceptional cases

Jun 8, 2017

The independent review into the use of chaperone conditions to protect patients was released in April 2017. Commissioned by the Medical Board of Australia (MBA) and the Australian Health Practitioner Regulation Agency (AHPRA), the review was undertaken by Professor Ron Paterson, former New Zealand Health and Disability Commissioner, academic and authority on patient safety.

Members may be aware that chaperoning conditions are imposed as an interim measure on health practitioners in some circumstances where allegations of sexual misconduct are made. Following allegations of sexual misconduct against a practitioner in Victoria, the Paterson review was established into their continued application.

Professor Paterson recommended that chaperoning should be abandoned, concluding that the continued use of chaperoning is inconsistent with patient and community expectations and is of limited effectiveness in protecting patients. The regulator has accepted all 28 of the review’s recommendations and a process of implementation has begun.

The practitioner’s right to the presumption of innocence

Avant provided a submission to the review which, while acknowledging the serious nature of sexual misconduct allegations, argued that the use of chaperoning strikes the right balance between the regulator’s obligation to protect the public and the practitioner’s right to the presumption of innocence while allegations of sexual misconduct are being investigated. Based on our overall experience that chaperoning can be effective at protecting patients, we argued that chaperoning should continue to be available in appropriate circumstances.

As a result of the review, where an allegation of sexual misconduct is made, in place of chaperoning the regulator will impose gender-based restrictions, prohibitions on patient contact or suspension. In exceptional cases, chaperoning conditions (to be renamed ‘practice monitoring’) may be available. Where used, the obligations upon a practice monitor will be tightened and more information will be provided for patients prior to seeking care from the health practitioner concerned. Immediate steps will also be taken by the regulator to improve the handling of sexual misconduct investigations particularly regarding increased responsiveness, improved timeliness and consistency of outcomes. Specialist committees within AHPRA and the MBA are being established to investigate sexual misconduct allegations and guidelines will be issued to assist decision makers.

Avant’s position ­– chaperoning can be effective

Avant’s position remains that chaperoning (or practice monitoring) is effective in appropriate circumstances. We are pleased that it will be available, although only in exceptional cases. We expect exceptional cases may be those where a single allegation of sexual misconduct is made, the alleged conduct is non-criminal in nature and the practitioner concerned has no relevant notification or complaint history. Any ‘consensual’ sexual interactions between practitioners and their patients will not be regarded as exceptional circumstances.

It is concerning that the abandonment of chaperoning conditions may have the effect of penalising innocent practitioners when allegations against them have not been fully investigated. Practitioners, particularly those who work in private practice, may have their livelihood seriously affected. There is nothing in the review which precludes Avant from taking all steps necessary to protect our members. We will continue to do so. Where appropriate, we will seek the imposition of practice monitoring as an interim measure and, if required, lodge appeals against decisions of the MBA where we believe we have reasonable grounds to do so. A recent decision of the Queensland Civil and Administrative Tribunal delivered following the Paterson review confirms the availability of this option.

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