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Law \ Legal

Senate inquiry into AHPRA (Australian Health Practitioner Regulation Agency) – Healthcare


If you want to ruin a doctor’s life, all
you really have to do is make a complaint against them and walk
away. There will be no consequences against you. Certainly 90 per
cent of the time the doctor will be found to have done nothing
wrong, but you will have ensured that that doctor has a year of
utter misery
.’
1

In 2021 the Senate Community Affairs References Committee
conducted an inquiry into the Australian Health Practitioner
Regulation Agency (AHPRA). The comment above was just one of many
heard and tabled in the Committee’s report on 4 April 2022. The
full report can be accessed here but this article provides a summary of
the report and raises some questions about the Committee’s
recommendations – whether they go far enough, or indeed, go too
far.

The Committee’s Terms of Reference listed 12 matters for
inquiry, broadly focusing on: the registration process; the
handling and investigation of notifications; and the impact on
health practitioners subject to notifications.

Registration issues

For a health practitioner to practise under a protected title,
such as ‘dentist’ or ‘nurse’, they must be
registered with AHPRA. Overall, the Committee was supportive of the
registration standards and acknowledged their importance in
ensuring that health practitioners are fully qualified and suitable
to practice.

However the Committee had concerns with the use of the title
‘Cosmetic Surgeon’. There are currently no additional
registration requirements for practitioners to use the title
‘Cosmetic Surgeon’. The Committee considered that this
presented a substantial risk to public safety as it may mislead
patients into believing that the practitioners performing cosmetic
surgery are registered surgical specialists, when they may not have
formal qualifications or sufficient experience in surgery. The
Committee has therefore recommended reforms to the National Law to
regulate the use of the title ‘surgeon’, but notes that
this is only the beginning of a lengthy process. Given the current
wave of media attention on cosmetic medicine and the consequent
AHPRA review into cosmetic practitioners, we suspect that this
recommendation will be the ‘first cab off the rank’ in
terms of legislative response.

The Committee also heard of lengthy delays in the registration
process, which may leave a practitioner without employment for a
significant period of time. Another difficulty was the availability
of supervisors and the lack of incentive for senior practitioners
to take on that role.

The Committee also received evidence about the onerous nature of
the re-registration process contributing to workplace shortages. As
nearly all States are facing crises in workplace shortage, the
Committee’s recommendations for a more flexible approach to
re-registration is welcome, as is the recommendation to streamline
the contact between supervisors and AHPRA.

Notifications

Notifications are an important mechanism for identifying and
addressing potential risks to the public. They are complaints
relating to the conduct, health and performance of a health
practitioner. All notifications are considered by the relevant
National Board, who can take a range of regulatory action,
including starting an investigation or suspending the
practitioner’s registration. Notifications are also the cause
of an extraordinary level of stress and anxiety for practitioners
and the Committee noted that, while AHPRA had made improvements in
the notifications process, there were still problems which are
unacceptable. The Committee’s key concerns are outlined
below.

Lack of education and awareness

The Committee heard that the public are confused about where to
take their concerns, particularly in knowing whether to make a
‘notification’ as distinct from a ‘complaint’. The
Queensland Health Ombudsman noted that 60% of the matters received
each year do not relate to registered practitioners but rather
other health services, including hospitals.

Furthermore, notifications are commonly related to employment,
performance and ‘scope-of-practice’ issues, as opposed to
relating to patient safety. Indeed, over 70% of all notifications
conclude with no further action. This indicates that many
notifications involve concerns raising no risk at all to the public
and are better dealt with directly by health practices and
services.

The Committee therefore recommended that notifications accepted
by AHPRA be limited to those involving clinical issues relating to
patient safety. We consider this to be one of the most important
recommendations of the report. If it is implemented properly, it
could result in not only significant benefit for practitioners, who
are often invited (or compelled) to respond to notifications
arising from events outside their control, but also in a
significant improvement to the entire notifications system,
reducing delays in the process.

Lengthy delays in the notification process

The Committee heard evidence that the timeliness of the
notification process continued to be a problem. Dr Kelly Nickels of
Avant Mutual Group commented:

complex and serious matters can languish for months,
even years, with little to no discernible progress. Often in these
more serious cases, doctors are hampered in their care of the
public and the progression of their career for these prolonged
periods by interim conditions limiting their
practice
.”

Even in cases where the allegations had little substance, it was
still common for investigations to take more than six months to
conclude.

A contributing factor to delays is that a high number of
frivolous claims are not being identified and closed early. The
Committee noted one example of a notification made about a
practitioner who said that COVID lockdowns ‘felt like being
under house arrest’. The practitioner was investigated, and
after three and a half months, no further action was taken.
Handling such claims takes up AHPRA’s already limited
resources. As such, the Committee considered that maximum
timeframes should be set on how long investigations take, such as
three months, in order to minimise delays.

It is with some concern that we note that the Committee also
recommended AHPRA and the National Boards undertake an analysis of
the cause of protracted timeframes and identify ways to further
improve timeliness. The Committee noted that consideration should
be given to ‘what further decision-making powers of the
national boards can be delegated to AHPRA
‘.

We consider that delegation of greater power to AHPRA, while
possibly improving investigation timelines, would not assist
transparency but instead result in greater opacity in
decision-making. We note also that some decision-making power is
already granted to AHPRA which does not seem to have expedited
processes. We note that there is an existing framework for
vexatious notifications which provides AHPRA with the power to
determine a notification to be vexatious and take no further
action, without the Board’s involvement. In our experience,
however, this power is exercised infrequently. We consider that
AHPRA should focus on exercising the powers it already has, with
efficiency and transparency, before further powers are granted to
it in place of the National Boards. The Boards must retain their
decision-making powers when a matter involves clinical care or
judgement. The Boards are composed, at least in part, of members
with the requisite knowledge and experience to consider the
performance and conduct of their peers. Moreover, should
decision-making powers be divested to AHPRA, it is unclear how such
decisions would be reported and justified. The National Law sets
out the right of appeal to most of the Board’s decisions, but
without written reasons for a decision made by AHPRA, the capacity
to challenge or appeal a decision would be very limited. The
utility of the appeal rights set out in the National Law is already
limited by the fact that, in Victoria at least, appeals are
unlikely to be decided by VCAT for well over six months.

Lack of transparency and communication

The Committee heard that there are systemic problems with
AHPRA’s communication, including unanswered phone calls and
written correspondence, and not providing updates about a matter.
Under section 161 of the National Law, AHPRA is required to provide
written updates at intervals of no more than three months.
AHPRA’s failure to meet the statutory timeframes for written
updates was considered unacceptable, and the Committee believed the
implementation of a service standard should be a priority. There
are currently no consequences for non-compliance with the statutory
timeframes so we welcome the Committee’s recommendation.
However, as the written updates provided every three months are
almost invariably without detail or any indication of the likely
duration of an investigation, we do not consider this
recommendation will result in any improvements in genuine
resolution of investigations. We consider the emphasis should be on
the speedy resolution of investigations, not on ensuring that
pro-forma letters are dispatched regularly throughout the
investigation process. More meaningful updates would be helpful,
with a likely timeline for any remaining investigation
required.

The Committee further heard that AHPRA does not always provide
sufficient information in order for practitioners to represent
themselves fairly. On some occasions, practitioners have only
become aware of documents or interviews by way of reference within
the Board’s reasons. This failure to provide all information
considered by the Board to the practitioner represents a serious
failure to afford the practitioner with due process. Such lack of
transparency does not assist in maintaining practitioners’
trust in the regulatory system.

The impact of notifications

The Committee was ‘deeply concerned’ by the impact of
notifications. Not only did practitioners describe receiving a
notification as ‘the worst experience of their life’,
causing significant stress, shame and guilt; the notification
process also had devastating consequences:

marriage break-up, loss of homes, closure of practices
and, again, patients being very distressed by these procedures,
particularly because they are often either losing their doctor or
having a doctor look after them who is literally impaired by the
amount of stress that they’re under
.’2

The Committee heard of cases where some practitioners have even
suicided or experienced suicidal ideation during a notification
process.3 Dr Adrian Sheen commented:

The sad truth is the suicide rate for doctors is far
higher than in the general community, and for every doctor suicide,
I suggest to you, there may be 20, maybe more, doctors that are
severely depressed
.4

The Committee considered the impact of vexatious complaints,
hearing that they can lead to longstanding trauma, especially given
notifications can take months or years to resolve. We refer to our
comments above about AHPRA’s apparent failure to utilise the
framework given its power to resolve these matters quickly.

The Committee also heard concerns about anonymous notifications.
Dr Anchita Karmakar noted investigations into anonymous complaints
can have deadly consequences:

I can say that I’ve lost a colleague of mine who
was literally two weeks off getting a phone call from AHPRA to say,
‘You’ve been completely exonerated,’ when she took her
life. That was because of the fact that it was obviously frivolous.
It was obviously vexatious, but she was not given the contextual
information
.’5

Finally, the Committee heard that mandatory reporting
requirements and the fear of being reported prevent practitioners
from seeking help and treatment. As Dr Di Dio comments:

We are still losing too many colleagues every year
because they are not confident that they can seek help without
risking their livelihoods and careers
.’6

Significantly, the Committee has recommended the Ministerial
Council agree to remove the current mandatory reporting
requirements and align the approach with the Western Australian
model. We consider this recommendation should be adopted urgently.
Practitioners are often, understandably, reticent to seek help for
certain medical conditions for fear of being the subject of a
mandatory notification by their own treating practitioner. In our
experience, these notifications arise more often from mental health
presentations in practitioners than they do from physical illness.
Amendment to mandatory reporting requirements would represent a
significant improvement for practitioners’ health and welfare,
in turn resulting in better retention rates in the health system as
whole. Practitioners who can safely discuss their stress and
anxiety with their own treaters at an early stage, before they are
dangerously unwell, will be safer practitioners who can also remain
practising in the health care system at this time of intense
need.

The Committee strongly encouraged AHPRA to continue prioritising
reforms that will improve practitioners’ and notifiers’
experience with the notification process. This appears to be
reflected in the recommendation that AHPRA and the National Boards
develop and fund a comprehensive strategy for providing tailored
support during the notifications process to practitioners in all
regulated professions. We note that if the Committee’s other
recommendations were adopted quickly, the need to provide support
to practitioners would be immediately reduced. Moreover, it is not
clear what support AHPRA and the Boards would, or indeed, could
provide. In our experience, practitioners subject to notifications,
under investigation or facing regulatory action are unlikely to
confide in the very institution that is conducting the
investigation or imposing regulatory action on them; one is minded
of the old saying about foxes and henhouses. Rather, practitioners
rely on the support and advice provided by their medical defence
organisations.

Conclusion

While the report is a satisfying summary of the many issues
practitioners face when dealing with the regulatory system, it
essentially serves to highlight the extent of the problems
underlying the regulatory system.

The report also details the history of previous inquiries into
the operation of AHPRA and the National Law; in 2011, 2014 (the
Snowball Review), 2016 and 2017. Legislative changes that arose
from the 2017 review were implemented in 2017 and further changes
are still waiting to be introduced in Queensland (as host
jurisdiction). Thus, recommendations of the 2021 review are being
added to the list of changes already recommended but awaiting
implementation. We consider that instead of these recommendations
being added to this list, previous recommendations should be
re-examined and consolidated where possible, in order to ensure
legislative change occurs expeditiously.

Overall, we welcome the Committee’s recommendations.
However, without detailed legislative drafting it is difficult to
predict the real impact such recommendations will have on
practitioners. Health practitioners and their representative groups
should monitor any proposed legislative changes arising from the
recommendations carefully, to ensure that any changes proposed have
the effect the Committee intended rather than further entrenching
AHPRA’s current powers and practices.

In the meantime, we are hopeful that the concerns raised will
cause AHPRA to exercise its functions more carefully and
efficiently, in order to reassure all practitioners that the
regulatory system can protect the public without, as was submitted
to the Committee, ruining lives and causing misery.

Footnotes

1 Page 70.

2 Page 67.

3 Page 67-68.

4 Page 68.

5 Page 73.

6 Page 75.



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