The mandatory reporting requirements provided for by the Health Practitioner Regulation National Law (National Law) were amended from 1 March 2020.
The amendments have been introduced with a goal of encouraging health practitioners, registered under the National Law, to have the confidence to seek treatment for health conditions, while also providing protection from harm for the public.
Previously the various national boards, including the Medical Board of Australia, published their own guidelines relating to the mandatory reporting requirements imposed by the National Law. However, with the new amendments to the National Law, the Australian Health Practitioner Regulation Agency (AHPRA) has published updated guidelines for all health practitioners registered pursuant to the National Law.
In summary, registered health practitioners and employers are all subject to report notifiable conduct (by registered health practitioners) now defined in the present tense as:
- Practising while intoxicated by alcohol or drugs;
- Engaging in sexual misconduct in connection with the practice of their profession;
- Placing the public at risk of harm because of an impairment; and
- Placing the public at substantial risk of harm by practicing in a way that significantly departs from accepted professional standards.
The obligation to report practicing while intoxicated and engaging in sexual misconduct do not need an assessment of any risk of harm. Both types of conduct are considered to be potentially harmful.
However, changes have been introduced to provide exceptions for treating practitioners.
Reforms to mandatory reporting obligations on treating practitioners
A treating practitioner is a practitioner who becomes aware of the notifiable conduct while providing treatment to another practitioner.
The mandatory reporting obligations have been modified to provide that a treating practitioner need only make a notification if, while treating another practitioner as a patient, they form a reasonable belief that the patient practitioner is placing the public at substantial risk of harm by:
- Practising with an impairment;
- Practising while intoxicated; or
- Practising in a way significantly departing from accepted professional standards.
If a treating practitioner forms a reasonable belief that the patient practitioner has engaged, is engaging, or is at risk of engaging in sexual misconduct in connection with their practice, the requirement that the public be at risk of substantial (or indeed any) harm does not apply. The treating practitioner must notify.
A treating practitioner must also report a student patient, with an impairment that may place the public at substantial risk of harm, if they are undertaking clinical training. If the student patient is not undertaking clinical training there is no mandatory obligation to notify.
Substantial risk of harm is a very high threshold for reporting the potential risk. The threshold for reporting students is lower as all that is required is that they may be placing the public at risk of harm and there is no threshold with respect to sexual misconduct.
Mandatory reporting obligations on non-treating practitioners
A non-treating practitioner is a practitioner who has concerns about another practitioner’s conduct but did not identify those concerns while treating that practitioner.
A non-treating practitioner must make a notification if they form a reasonable belief that another registered health professional engaged in notifiable conduct defined above. These obligations have not changed.
Mandatory reporting obligations by employers
An employer is a person or organisation that employs a practitioner under an employment or service contract or as a volunteer.
As with non-treating practitioners an employer’s obligations remain unchanged ie they are require to report any notifiable conduct as currently defined above.
Employers are still required to have specific processes and protocols in place to manage the employee practitioner’s performance and protect the public from risk of harm.
Time will tell if the amendments to the obligations on treating practitioners have the desired effect.
You should seek advice if you have any concerns about reporting either a patient or a fellow health practitioner.
This article was written by Katharine Philp, Partner and Ellen Stower, Law Graduate.