On 11 September 2024, the Queensland Minister for Health, Mental Health and Ambulance Services and Minister for Women introduced the Health Practitioner Regulation National Law and Other Legislation Amendment Bill 2024 (the Bill) into the Queensland Parliament. The Bill amends the Health Practitioner Regulation National Law (National Law) with the primary objectives being to improve public protection and public confidence in the safety of services provided by registered health practitioners.
Queensland is the host jurisdiction for the National Law, which means that if the Bill is passed in Queensland, any changes to the National Law will automatically apply in all other states and territories, apart from New South Wales and South Australia where amendments must be adopted by regulation, and Western Australia where Western Australia’s Governor must make a proclamation which brings the amendments into operation following their tabling in each House of Parliament. It is likely that a regulation will be made in New South Wales to incorporate the amendments into relevant NSW legislation.
Objectives of the Amendments
The objectives of the amendments to the National Law are as follows:
- To strengthen the management of professional misconduct under the National Law and protect public safety by establishing a nationally consistent approach for practitioners to regain their re-registration following cancellation or disqualification;
- To increase transparency for patients and the public regarding the regulatory history of and disciplinary action against health practitioners who have engaged in sexual misconduct; and
- To strengthen protections for complainants and prospective complainants from any detriment, and clarify consumer protections in relation to non-disclosure agreements.
National Law Amendments
The Bill amends the National Law to:
- Require cancelled and disqualified practitioners to obtain a reinstatement order from a responsible tribunal before applying to a National Board for re-registration;
- Require National Boards, in conjunction with the Australian Health Practitioner Regulation Agency, to permanently publish additional information on the public register regarding health practitioners who have been found to have engaged in professional misconduct involving sexual misconduct; and
- Provide greater protections for complainants against threats, intimidation, reprisals or other detriment, and void non-disclosure agreements that purport to prevent someone from making a complaint.
Reinstatement Orders
The process which a health practitioner must follow to regain registration after a Tribunal cancels their registration or temporarily disqualifies them from registration varies considerably between states and territories.
Currently, in all jurisdictions except New South Wales, a health practitioner can apply to the relevant National Board for re-registration following any period of disqualification. The Board must consider the application in accordance with part 7 of the National Law. Part of this process involves an assessment of whether the health practitioner is fit and proper to hold registration and can practise the profession competently and safely.
In New South Wales, a practitioner who has been disqualified or whose registration has been cancelled must first obtain a reinstatement order from the New South Wales Civil and Administrative Tribunal (NCAT) before they are eligible to make an application to regain registration with the relevant National Board. If NCAT grants a reinstatement order, the health practitioner may then apply to the National Board for re-registration under part 7 of the National Law. The application will then be assessed by the National Board.
The Bill restricts a cancelled or disqualified practitioner from applying for re-registration unless they have obtained a reinstatement order indicating their eligibility. This requirement already exists in New South Wales and will now apply in all states and territories, thereby creating a nationally consistent approach to re-registration following cancellation or disqualification. This reform places greater onus on health practitioners to satisfy the relevant jurisdictional tribunal that the practitioner is suitable to apply for re-registration and brings greater transparency to the process for re-registration.
Expanding Information on the Public Register
National Boards are required to publish information about active disciplinary sanctions on the national public register, such as whether conditions have been imposed on a health practitioner’s registration. Once disciplinary actions have ceased, the National Law provides mechanisms for that information to be removed from the public register.
The Bill requires a National Board to record additional information in the relevant National or Specialists Register if the National Board is satisfied that a responsible tribunal decided that a practitioner has engaged in professional misconduct on the basis of sexual misconduct. The additional information will remain on the register permanently.
The additional information that must be published includes a statement that the practitioner engaged in professional misconduct on the basis of sexual misconduct, any sanctions imposed in response to same, and a copy of the decision or link to the decision (if the decision was published). If the tribunal decided to cancel the person’s registration on the grounds of professional misconduct, or if the health practitioner is no longer registered, the additional information also includes a statement of the following:
- if the tribunal decided to disqualify the person from applying for registration, the fact that the tribunal decided to disqualify them;
- if the tribunal decided to set a period for which the person may not apply for a reinstatement order, the period for which the person may not apply for the order; and
- if the tribunal decided to restrict or prohibit the person from providing a health service or using a title, the fact that the tribunal decided to restrict or prohibit the person and the specified period of the restriction or prohibition.
Under the National Law, a tribunal may find that various types of conduct, taken together, amount to professional misconduct. Accordingly, the Bill provides that sexual misconduct need not be the sole or main basis for the tribunal’s finding of professional misconduct in order to trigger the publication requirements.
Whilst the proposed amendments will improve protections for the public and increase transparency in relation to disciplinary action taken against practitioners who have engaged in sexual misconduct, it will mean that practitioners who have been found to have engaged in sexual misconduct will have such information publicly displayed on the register, even if they have been found to have sufficiently addressed that conduct and are no longer subject to any sanctions which may have flowed from these findings.
Greater Protection for Complainants
The Bill strengthens the current protections for complainants under the National Law. It will be an offence to use threats or intimidation, dismiss, or refuse to employ, or subject a person to other detriment or reprisal because they have made or intend to make a complaint or have assisted other persons performing functions under the National Law.
The maximum penalty will be $60,000 for an individual, and $120,000 for a body corporate.
In NSW, the Health Care Complaints Act 1993 (NSW) already contains offences against individuals who by threat, intimidation or inducement, persuade or attempt to persuade a person not to make a complaint or engage with the Health Care Complaints Commission (HCCC) or a professional council in relation to a complaint. The legislation similarly precludes a person from employing or taking adverse action against someone who has made a complaint or engaged with the HCCC or a professional council.
The Bill will also make it an offence to enter into a non-disclosure agreement unless the agreement sets out, clearly and in writing, that it does not limit a person from making a notification or assisting regulators and others to perform functions under the National Law.
The maximum penalty will be $5,000 for an individual, and $10,000 for a body corporate.
The Bill will render any provisions of a non-disclosure agreement void to the extent that it prevents or limits a person from making a notification or assisting others to perform functions under the National Law.
For the purpose of these provisions, a non-disclosure agreement means a contract or other agreement that prohibits or restricts the disclosure of information or documents in relation to the health, conduct or performance of a registered health practitioner or former registered health practitioner.
The offences will apply prospectively, and the voiding of non-disclosure agreements will apply regardless of when the agreement was made.
This article was written by Scott Chapman, Partner, Luke Depares, Senior Associate and Sarah Clucher, Law Graduate
