Mandatory notifications by treating practitioners

• As a treating practitioner, the reporting threshold to make a mandatory notification about your patients’ conduct is higher than for those outside a treating relationship.
• Illness that is treated and well managed would rarely be considered an impairment requiring notification.
• Before making a notification about impairment, intoxication or a departure from standards, you need to reasonably believe your patient is putting the public at substantial risk of harm by the way they are practising.

Note: This information is for health practitioners who are treating another health practitioner. To find out about your obligations regarding all other health practitioners, refer to our factsheet: Mandatory notifications about health practitioners.  

Throughout this factsheet, a reference to ‘patient’ means your patient who is a registered health practitioner. Treating practitioners in Western Australia are exempt from the requirement to make a mandatory notification about their patients who are also registered health practitioners or students. 

Before making a mandatory notification, you must form a ‘reasonable belief’ that your patient is engaging in ‘notifiable conduct’. Your belief must come from treating the other practitioner and should be based on actual, known events rather than anecdotal accounts or speculation.  

Notifiable conduct is defined by legislation and includes:  

• practising with an impairment 
• practising while intoxicated 
• significant departure from accepted professional standards 
• sexual misconduct.  

For more information about each type of notifiable conduct, refer to Ahpra’s guidelines for mandatory notifications or our factsheet Mandatory notifications about health practitioners.  

The obligation to notify applies to the 16 regulated health professions, not only doctors. This means you may be required to make a notification about a health professional who is not a doctor.  

You are only required to notify Ahpra if you consider your patient is placing the public at a ‘substantial risk of harm’ while practising with an impairment, while intoxicated or in a way that significantly departs from accepted professional standards. A substantial risk of harm is a very high threshold.  

The threshold for notifying about sexual misconduct is lower. You must have a reasonable belief that your patient has engaged, is engaging, or is likely to engage in sexual misconduct in connection with their practice. Assessing whether there is a risk of sexual misconduct can be difficult. Ahpra provides some guidance, stating that grooming behaviours or details of a plan to engage in sexual misconduct would be notifiable.  

Section 3 of Ahpra’s guidelines for mandatory notifications provides examples and flow charts for how to assess whether the threshold for reporting has been met for each type of notifiable conduct. 

Reducing barriers to seeking treatment

Concerns that mandatory notification laws imposed a barrier for health practitioners seeking treatment, resulted in the laws being amended in 2020.  

The amendments raised the threshold at which treating practitioners must notify Ahpra about their patient’s impairment, with the intention of encouraging health practitioners to seek the healthcare they need at the time they need it, without fear of being reported.  

Ahpra says it is unlikely treating practitioners would need to notify about their patient’s impairment if it is being appropriately managed, as it would be unlikely to pose sufficient risk of harm to the public.  

Illness is not impairment

An illness is not automatically an impairment. ‘Impairment’ is defined as a physical or mental impairment, disability, condition or disorder (including substance abuse or dependence), that detrimentally affects or is likely to detrimentally affect the practitioner’s capacity to practise.

Risk factors

Ahpra only needs to be notified if your patient’s impairment places the public at a substantial risk of harm. If the condition is being managed so the risk to the public is reduced by effective controls, there is no requirement to notify. Controls could include treatment, sick leave or a career break, supervision or a modified scope of practice.  

The legislation outlines several factors to consider when deciding if you should notify:  

• the nature, extent and severity of the impairment 
• what steps your patient is taking, or willing to take, to manage the impairment 
• how well the impairment can be managed with treatment 
• any other matter relevant to the risk the impairment poses.  

Protecting the treating relationship

At the outset of the treating relationship, consider talking with your patient about mandatory notifications and reassuring them about the circumstances in which you would need to notify Ahpra. It can be helpful to explain if you are, or aren’t, currently concerned and discuss what sort of steps might address any concerns (such as them taking leave from work). 

Scenarios

1. A patient has a stable mental health condition (such as depression) and is engaged in, compliant with and receptive to treatment. If you are satisfied there is not a substantial risk of harm to the public, then you would not make a mandatory notification to Ahpra.   
2. An ageing patient who is a solo practitioner is showing signs of dementia. If they move to a group practice and their condition is monitored with regular follow-ups, you may be satisfied there is not a substantial risk of harm to the public. However, if they are unable or unwilling to take such steps and their condition remains unmanaged, they may place the public at a substantial risk of harm. In that situation you would need to consider making a notification.  

If your patient’s intoxication or significant departure from accepted professional standards is related to an impairment, consider whether it can be treated and whether, with treatment, your patient is still placing the public at a substantial risk of harm.  

Isolated past incidents are unlikely to require notification if there is no current substantial risk of harm to the public. In assessing the risk of harm, it is important to consider whether the behaviour was an isolated incident or whether you believe it indicates a pattern of behaviour. Consider what steps your patient is taking to avoid a recurrence.  

Your mandatory notification obligation overrides your privacy obligations. When you make a report on reasonable grounds and in good faith, you are protected from legal liability. That means you must act with good intentions and without malice. Regardless of the outcome of your notification, you cannot be subject to claims such as defamation or breach of privacy. Making a notification is not considered a breach of professional standards.  

A mandatory notification aims to keep the public safe, so this must be your primary consideration. If you are genuinely concerned that your patient is putting the public at risk, act quickly.  

If the concern is less immediate, it can be helpful to talk to a senior colleague about the circumstances, while upholding your privacy obligations to your patient.  

Making a mandatory notification can affect the treatment relationship between you and your patient. Discuss your position with your patient and encourage them to self-notify in the first instance.  This may allow your treatment relationship to continue and may relieve you from your obligations as there is an exemption if you know that Ahpra has been notified of the conduct.   

Read Ahpra’s guidelines and view its other resources to help you make your decision. These can clarify whether a mandatory notification is the right decision.  

You can also call Avant’s Medico-legal Advisory Service to discuss your circumstances and obligations. 

Ahpra: Guidelines: Mandatory notifications about registered health practitioners  

Ahpra: Resources – helping you understand mandatory notifications  

Avant factsheet: Mandatory notifications about health practitioners 

For medico-legal advice, please contact us here, or call 1800 128 268, 24/7 in emergencies.