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The National Registration and Accreditation Scheme for the health practitioners (the Scheme) was introduced on 1 July 2010. As part of the Scheme, all registered health practitioners are now legally required to report any other registered health practitioner who has behaved in a manner that constitutes ‘notifiable conduct’.
Making a mandatory notification is a serious step to prevent the public from being placed at risk of harm and should only be taken on sufficient grounds.
Notifiable conduct is defined in the Health Practitioner Regulation National Law Act 2009 (the National Law) and means the practitioner has:
‘Impairment’ is defined in the National Law as a person who has ‘a physical or mental impairment, disability, condition or disorder (including substance abuse or dependence) that detrimentally affects or is likely to detrimentally affect the person’s capacity to practice the profession’. It should be noted that the practitioner’s impairment must place the public at risk of substantial harm for the threshold for mandatory notification to be met.
The Scheme imposes a duty to report notifiable conduct on all registered health practitioners and employers. This means that there is a legal obligation to report a registered health practitioner who the notifier, in the course of practising their profession, has formed a ‘reasonable belief’ (see below) that the practitioner has behaved in a way that constitutes notifiable conduct.
The obligation to make a mandatory notification applies to the conduct or impairment of all registered practitioners, and not just those in the same health profession as the practitioner who is making the notification.
Education providers also have an obligation to make a mandatory notification in relation to students, if the provider reasonably believes a student who is enrolled with the provider, or who is undertaking clinical training with the provider, has an impairment that in the course of the student undertaking clinical training, may place the public at substantial risk of harm.
There are particular exceptions which relate to the circumstances in which the practitioner forms the reasonable belief about notifiable conduct. Exceptions to the requirement of practitioners to make a mandatory notification include where the practitioner:
Also, in WA only, practitioners are exempted from the reporting requirements in the course of providing health services to other health practitioners or students.
The threshold to be met to trigger the requirement to report notifiable conduct in relation to a practitioner is high, and the practitioner or employer must have first formed a ‘reasonable belief’ that the behaviour constitutes notifiable conduct. For practitioners reporting notifiable conduct, a reasonable belief must be formed in the course of practising the profession.
A reasonable belief requires a stronger level of knowledge than a mere suspicion. Generally it would involve direct knowledge or observation of the behaviour which gave rise to the notification. Mere speculation, rumours, gossip or innuendo are not enough to form a reasonable belief. However, conclusive proof is not needed. A report should be based on personal knowledge of facts or circumstances that are reasonably trustworthy and that would justify a person of average caution, acting in good faith, to believe that notifiable conduct has occurred or that a notifiable impairment exists.
The National Law provides for notifications to be made to the Australian Health Practitioner Regulation Agency (AHPRA), which receives notifications and refers them to the relevant board. The notification should be made as soon as practicable and include the basis and the reasons for the notification; that is, practitioners, employers and education providers must say what the notification is about.
Practitioners should document the reasons for the notification including the date and time that they noticed the conduct or impairment.
The National Law protects practitioners, employers and education providers who make notifications in good faith (well-intentioned or without malice). Protection is provided from civil, criminal and administrative liability, including defamation, for practitioners making notifications in good faith.
Making a notification is not a breach of professional etiquette or ethics, or a departure from accepted standards of professional conduct.
The National Law also provides for voluntary notifications for behavior that presents a risk but does not meet the threshold for notifiable conduct, and similar protections apply for voluntary notifications.
There are no penalties prescribed under the National Law for a practitioner who fails to make a mandatory notification; however, a practitioner who fails to make a mandatory notification when required to do so may be subject to action by their registration board.
There are consequences for an employer who fails to notify AHPRA of notifiable conduct. If AHPRA becomes aware of such a failure, they must give a written report about the failure to the responsible Minister for the participating jurisdiction in which the notifiable conduct occurred. The Minister must report the employer’s failure to notify to a health complaints entity, the employer’s licensing authority or another appropriate entity in that participating jurisdiction.
Medical Board of Australia. Guidelines for mandatory notifications.
With thanks to MDA National for this overview.
For further reading, see DesRoches CM, Rao SR, Fromson JA. Physicians’ Perceptions, Preparedness for Reporting, and Experiences Relat
© Doctors Health Advisory Service 2019