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When to speak up: your mandatory notification obligations

Georgie Haysom, BSc, LLB (Hons) LLM (Bioethics), GAICD, Head of Research, Education and Advocacy, Avant

Sunday, 31 January 2016

Mandatory Reporting

Mandatory notification under the Health Practitioner National Law continues to be a focus for Avant, as our information suggests many doctors continue to be unsure about their obligations.

Avant’s poll in 2015: “Would you make a mandatory report?” indicated that many doctors are still unclear of their mandatory reporting obligations, with a significant number of respondents indicating they were unsure whether a consensual sexual relationship between a colleague and a patient should be reported.

Under the National Law a doctor has a mandatory obligation to notify the Australian Health Practitioner Regulation Agency (AHPRA) when they have a “reasonable belief” that a doctor has engaged in “notifiable conduct.”

Mandatory reporting not only covers sexual misconduct but also competence such as substandard practice which places the public at risk of harm, for example due to practising while intoxicated by alcohol or drugs; the practitioner having an impairment; or practising in a way that constitutes a significant departure from accepted professional standards.

Doctors should only notify AHPRA if they have a reasonable belief. Doctors are encouraged to read AHPRA’s Guidelines for mandatory notifications, which contain useful guidance about when to make a mandatory report. In the case of potential sexual misconduct, doctors should also read the Medical Board of Australia’s Sexual Boundaries: guidelines for doctors before making a mandatory notification.

Doctors are encouraged to read AHPRA’s Guidelines for mandatory notifications, which contain useful guidance about when to make a mandatory report.

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 gives rise to the notification.

Things to consider if you are concerned about a colleague

  • Focus on safety – is your colleague putting patients or themselves at risk?
  • Are your concerns based on actual knowledge or speculation, gossip or rumours?
  • Do you have all the facts?
  • Are your concerns influenced by any conscious or unconscious bias – personal dislike, media, and
  • competitive interests?
  • Is there a range of acceptable practice? Your colleague may be practising in accordance with proper standards, even if you don’t follow the same practice
  • Have you tried gently raising the issue with your colleague in a supportive way?
  • Have you spoken confidentially with colleagues, your college or other professional body to gauge their views?


Update: continued failure to understand obligations

In its recent decision involving a pharmacist with substance abuse issues, the NSW Civil and Administrative Tribunal expressed concern about the apparent failure amongst practitioners to understand or properly implement the mandatory notification provisions in the National Law.

The tribunal noted that “properly treated and supported, there is no reason why manageable mental health conditions such as anxiety and depression would, in and of themselves, be considered an impairment that ‘detrimentally affects or is likely to detrimentally affect’ professional practice”.

The tribunal went on to note the concern expressed by Avant and others about, “treating practitioners notifying their own patients on the basis that this may inhibit impaired health practitioners from seeking treatment”. However it suggested that in this case at least, given the practitioner’s lack of insight into his own condition, a failure to notify may have allowed an impaired practitioner to continue without the “supervision, monitoring and treatment that could have helped him, and may even have prevented the events that ultimately led to these disciplinary proceedings”.

Mandatory notification in order to protect the public from the risk of significant harm is an important and complex issue, and Avant will continue to advocate for clarity of obligations and a balanced approach that will allow practitioners to seek and receive the treatment they need.

Recent research

Recent research by Dr Marie Bismark and others published in The Medical Journal of Australia examining treating practitioner reports suggest that such reports are most likely to be made by a doctor treating a healthcare professional in the context of an acute presentation and where the patient’s impairment undermines the treating relationship. Consistent with the tribunal’s comments in Orr, that ‘properly treated and supported … manageable mental health conditions would not in and of themselves’ be considered a notifiable impairment, the research suggested that treating practitioners ‘resisted reporting their practitioner-patients in circumstances where their treatment was on an appropriate and promising path’. Reports tended to be made where the doctor-patient relationship was compromised because of a lack of insight into the risks to patients, dishonesty with the treating practitioner, a deliberate disregard for patient safety or an ongoing intention to self-harm. What is clear is that the decision to report is not being made lightly. The researchers noted that in most cases the reporter sought advice from their indemnity insurer, lawyer, manager or a peer before reporting.

Key lessons

Seek advice from Avant if you have concerns about a colleague and are considering a mandatory notification.
Before making a mandatory notification make sure you read AHPRA’s Guidelines for mandatory notifications.
Do not immediately make a notification about a colleague simply because you are worried that if you don’t, you may face disciplinary action. It is a serious step to make a mandatory notification. There is a high threshold to meet before you notify.
You cannot make a mandatory notification of sexual misconduct simply based on gossip, innuendo or unsubstantiated claims.
If there is an admission from the doctor, then you must notify.
You are not protected against vexatious claims.
Do not use mandatory notifications as a pay-back against another colleague.

Reference

  1. Health Care Complaints Commission v Orr[2015] NSWCATOD 124.

Learn more: Avant Risk IQ

Read

Avant Position Paper: Mandatory reporting
Factsheet: Mandatory reporting
Dealing with professional conduct complaints

Watch

Our webinar: Speaking out: mandatory reporting in healthcare and obtain CPD points.

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