Recent Changes to Health Practitioner Regulation Laws

Introduction

The Health Practitioner Regulation National Law and Other Legislation Amendment Bill 2022 (Qld), was passed with amendment on 13 October 2022, which expands AHPRA’s functions and powers to regulate Australian health practitioners.

According to AHPRA, the changes will be applied automatically in each state and territory – except in New South Wales and South Australia where those government will make a regulation to confirm the changes and in Western Australia where a corresponding amendment Bill will go through the WA parliamentary process.

Overall, more than 800,000 health practitioners will be affected by the new changes to the legislation.

What are the Changes?

The Bill amends the Health Ombudsman Act 2013 (Qld) (the “Health Ombudsman Act”) and the Health Practitioner Regulation National Law Act 2009 (Qld) (the “National Law”), across a number of important areas, as set out below.

New Guiding Principle

The Bill inserts a new guiding principle for the national scheme, which introduces “protection of public confidence in the safety of services provided by registered health practitioners and students” as a paramount consideration.

This shift towards ensuring public “confidence” may increase the severity of sanctions imposed against health practitioners during disciplinary proceedings.

Increased Powers to make Public Statements about Health Practitioners

The Bill also inserts new powers which essentially allows the regulator to warn the public about risks posed by certain practitioners before those proceedings have concluded.

Obviously, this amendment has been the most controversial since the impact such a publication could have on the practitioner’s reputation is significant, and where no formal finding of misconduct has been made.

Referrals to Tribunals No Longer Mandatory for Professional Misconduct

The Bill inserts a new provision which gives the Board a discretionary power to not refer a matter to the Health Ombudsman or the Tribunal, if the Board is of the view that there is no public interest in the matter being heard at the Tribunal.

Previously, a referral to the Health Ombudsman or a Tribunal was mandatory if the Board formed a reasonable belief that the practitioner engaged in professional misconduct.

Increased Powers to Share Information

The power to share information has been extended to allow the National Board to notify certain persons (including former employers) about action being taken against a registered health practitioner.

This new information sharing power is discretionary in nature, and can only be exercised if the Board believes the practitioner’s conduct posed a risk of harm at the time of that prior employment or practice arrangement.

Other Changes

Additional changes have been made, including with respect to reporting obligations for employers, show cause time periods for immediate action by the Health Ombudsman, notification requirements for scheduled medicine offences, and increased penalties for certain offences under the National Law.

Criticism of Bill by the Royal Australian College of General Practitioners (RACGP)

According to the Australian Health Practitioner Regulation Agency (AHPRA), the amendments are designed to make safety and public confidence in the National Registration and Accreditation Scheme ‘the paramount guiding principle’. Nevertheless, several aspects of the Bill have been criticized by the Royal Australian College of General Practitioners (RACGP).

In an open letter from the RACGP to the Committee Secretary of the Health and Environment Committee, the president of the RACGP highlighted that:

“Practitioners already lack confidence in the current system, particularly as it relates to complaints.  [The Bill] is perceived to focus more on the prosecution of practitioners than the protection of patient safety through remediation of the issues that lead to a complaint. Undergoing an investigation for a complaint can be an extremely stressful and time-consuming process, that can have significant reputational and professional consequences, regardless of whether the practitioner in question is at fault.”

The letter also highlights that the “stress from regulatory processes can impact the mental health of a practitioner which in turn can impact patient care” as demonstrated by a recent report prepared by the Community Affairs References Committee, and that practitioners who lack confidence in the regulatory system will possibly lead to “more defensive medicine, which risks misdiagnosis, over-treatment of benign conditions. And under-treatment of serious conditions” out of fear of “vexatious complaint or prosecution”.

The RACGP further criticised the additional amendments which could adversely impact practitioners:

 

• The “threshold” needs to be clarified for the new powers which enable AHPRA and OHO to make public statements about health practitioners, since such public statements can cause “unforeseen damage”;

 

• The Bill allows AHPRA to refer matters to other entities, such as health services or employers, before the investigative process is complete, thereby “render[ing] the complaints mechanism more complex” by enabling referral to multiple entities, which also undermines the intent of that amendment, namely to ensure investigations are managed by the entity best placed to deal with issues associated with the complaint.

 

• The lack of any show cause mechanism associated with the new powers which increase the ability for the National Boards to share information with certain individuals or entities who have employment or other practice arrangements with the practitioner in question.

Similar critiques with the Bill have been echoed by other associations.

Conclusion

Dealing with a criminal or disciplinary investigation associated with your practice of the profession can be a particularly stressful process which can affect patient care and your own livelihood.

Health practitioners already face significant stressors as a result of vexatious notifications which are not adequately vetted by AHPRA, and these stressors have been compounded in recent times due to multiple health crises.

Health practitioners who are subject to a notification about their conduct, or who are being actively investigated by AHPRA, will likely be affected by these new changes, and should seek legal advice immediately from lawyers experienced in dealing with AHPRA.

A health practitioner’s union representatives can usually only provide very limited guidance, which often leaves those health practitioners uncertain about what approach to take.  This, in turn, exposes the health practitioner to a greater level of uncertainty and creates room for errors which may impact that health practitioner’s registration and livelihood.

In contrast, engaging a private defense lawyer allows health practitioners to get the “1 on 1” attention they deserve with a lawyer they trust, and who can explain the entire process to them and formulate a strategy aimed at obtaining the best possible outcome.  This is even more important now that AHPRA’s powers to regulate health practitioners have been expanded.

Potts Lawyers assists health practitioners in all dealings with AHPRA the Health Ombudsman.  If you are a health practitioner who is subject to a notification, investigation, or criminal allegation, you should contact our office immediately so that we can provide you with clear and concise advice on your options.