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By Kathy Gough
Practice Manager, Claims
Avant Mutual Group Limited

You might be concerned a colleague isn’t practising as safely as they could be. You might be worried they are putting their patients at risk. Deciding whether to report them isn’t easy and can cause you a great deal of stress and anxiety.

In this article, I outline what your obligations are under the national law’s mandatory reporting provisions, to help you make a decision about whether you are legally obliged to make a notification about another health practitioner.              

Who is required to make mandatory reports?

Under the Health Practitioner Regulation National Law (National Law), health practitioners, employers and education providers have an obligation to make a mandatory report to the Australian Health Practitioner Regulation Agency (AHPRA) about another health practitioner or a student in certain circumstances.

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’s mandatory to report notifiable conduct by practitioners within your profession and also within the other professions. The obligation to report includes students who are impaired and are engaged in clinical training as part of their course.

What is ‘notifiable conduct’?

You must notify AHPRA when you have a ‘reasonable belief’ that a practitioner has engaged in ‘notifiable conduct’. That is, the practitioner has:

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

What is a ‘reasonable belief’?

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.

As far as possible, a ‘reasonable belief’ should 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’.

What happens if an optometrist is practising while intoxicated by alcohol or drugs?

The National Law does not define intoxication so the word is given its ordinary meaning. The relevant consideration is whether the practitioner’s ability to practise their profession is impaired or affected due to intoxication by drugs or alcohol. Intoxication outside of work is not notifiable unless you form a ‘reasonable belief’ that the practitioner has gone on to practise their profession while still intoxicated.

What are my responsibilities if I know a practitioner is engaging in sexual misconduct?

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 regardless of whether the patient has consented 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.

What do I need to be aware of if I suspect one of my colleagues might be impaired?

Under the National Law ‘impairment’ is defined broadly. The definition includes a physical or mental impairment, disability or disorder, as well as substance abuse or 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 practitioners.

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.

What situations are considered a significant departure from accepted professional standards?

For there to be notifiable conduct in this category, there must be a ‘significant departure’ from accepted standards of practice which includes:

  • a risk of harm to patients
  • a ‘significant’ departure is something best judged by a practitioner from the same area of speciality. The departure from accepted standards should be serious and place the public at risk of harm.

Are there exceptions to the mandatory reporting obligation?

A health practitioner does not have to make a mandatory report when they:

  • know or reasonably believe that the notifiable conduct has already been reported
  • are providing advice about notifiable conduct for the purpose of legal proceedings or the preparation of legal advice
  • work for an insurer that provides professional indemnity insurance, and become aware of notifiable conduct as a result of legal proceedings or the provision of legal advice arising from the insurance policy
  • are 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
  • are members of a quality assurance committee, health professional council or other approved health body, and are prohibited by legislation from disclosing the notifiable conduct.

In Western Australia and Queensland, there are exceptions from notifying in relation to treating a health practitioner who has impairment. In Queensland this exception is very limited so seek advice on this issue before making a notification.

Am I protected from liability if I make a mandatory notification?

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 that:

  • a person is not liable, civilly or criminally or under administrative process for giving information
  • the making of a notification or giving information does not constitute a breach of professional etiquette or ethics, or a departure from accepted standards of professional conduct
  • no liability for defamation is incurred by the person because of the making of the notification or giving information
  • protection extends to a person who, in good faith, provided the person with any information on the basis of which the notification was made or the information was given
  • protection also extends to cover a person who, in good faith, was otherwise concerned in the making of the notification or giving information.

In New South Wales, a mandatory report is deemed to be a complaint and as such is protected under the Health Care Complaints Act 1993. Under the 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 may be subject to disciplinary action.

What should my first steps be if I have concerns about a colleague?

If you’re concerned about a colleague, we recommend you carry out some research. Obtain advice from your colleagues (confidentially), your college or professional body, or Avant 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 may be considered to have been made in bad faith.

The Optometry Board of Australia’s website has more detail about mandatory guidelines for optometrists on its website www.optometryboard.gov.au under ‘Codes, Guidelines and Policies’.

 

Disclaimer: This publication is not comprehensive and does not constitute legal or medical advice. You should seek legal or other professional advice before relying on any content, and practice proper clinical decision making with regard to the individual circumstances. Persons implementing any recommendations contained in this publication must exercise their own independent skill or judgment or seek appropriate professional advice relevant to their own particular practice. Compliance with any recommendations will not in any way guarantee discharge of the duty of care owed to patients and others coming into contact with the health professional or practice. Avant is not responsible to you or anyone else for any loss suffered in connection with the use of this information. Information is current only at the date initially published.

 

Avant provides professional indemnity insurance cover to Optometry Australia
on behalf of its members

 

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