AHPRA Disciplinary Matters for Health Practitioners
Why choose Potts Lawyers for AHPRA Matters?
Potts team of experienced Civil Litigation Lawyers are highly experienced at assisting health practitioners across Australia who face allegations of impairments or conduct which may amount to unsatisfactory professional performance, unprofessional conduct, and professional misconduct.
AHPRA Disciplinary Matters for Health Practitioners
Health practitioners being investigated for these matters can face immediate action which prevents them from practising, and at the conclusion of those investigations, health practitioners can be subjected to conditions, suspensions, or even have their registration cancelled altogether. Obviously, this type of action taken against a health practitioner can have a devastating effect on their profession and livelihood.
Australian Health Practitioner Regulation Agency (AHPRA) is a regulatory body that was established to regulate health practitioners across Australia. Practitioners who face allegations, whether in relation to their practice of the profession or with respect to their suitability and fitness, should immediately seek legal advice from experienced lawyers.
Health practitioners who often try to resolve these matters themselves can unknowingly make the matter worse. This is because practitioners who are experiencing the stressors associated with dealing with an investigation by AHPRA may unwittingly make representations or submissions to AHPRA which are not in their best interests, and practitioners can sometimes take adversarial positions which are necessary and counterintuitive.
Health practitioners are often unfamiliar with the investigative and disciplinary process, the exact standards which they are required to meet and the need for the practitioner in appropriate cases to demonstrate a proactive, reflective and preventative response which assures the relevant tribunal that no risks are posed to the public.
Our Legal Strategy
Potts Lawyers will always tailor the strategy to each health practitioner’s unique circumstances, to ensure that we can achieve the best possible outcome for our clients. We can assist health practitioners by guiding them through the process and preparing submissions to AHPRA which are aimed at ensuring that their registration is fully protected.
Since AHPRA matters can affect a practitioner’s ability to work, proceeding self-represented is often not worth the risk.
From a timing perspective, to maximise a practitioner’s chances of succeeding, they should always seek legal advice as early as possible in AHPRA matters. Doing so can increase a practitioner’s chances of avoiding a suspension and cancellation, and importantly, such early intervention can also increase the prospects of quickly and successfully resolving the matter, whilst keeping legal costs as low as possible.
The National Law
The Health Practitioner Regulation National Law (National Law) came into operation in each state and territory in 2010. The National Law regulates health practitioners in chiropractic, dental, medical, nursing, midwifery, optometry, osteopathy, pharmacy, physiotherapy, podiatry, and psychology.
In 2012, four additional professions were added: Aboriginal and Torris Strait Islander health practice, Chinese medicine, medical radiation practice, and occupational therapy. In 2018, paramedicine was also added.
Objects and Operation of the National Law
The object of the National Law is to establish a national registration and accreditation scheme for the regulation of health practitioners and, where relevant, students.
The specific objectives are:
- to provide for the protection of the public by ensuring that only health practitioners who are suitably trained and qualified to practise in a competent and ethical manner are registered;
- to facilitate workforce mobility across Australia by reducing the administrative burden for health practitioners wishing to move between participating jurisdictions or to practise in more than one participating jurisdiction;
- to facilitate the provision of high-quality education and training of health practitioners;
- to facilitate the rigorous and responsive assessment of overseas-trained health practitioners;
- to facilitate access to services provided by health practitioners in accordance with the public interest; and
- to enable the continuous development of a flexible, responsive and sustainable Australian health workforce and to enable innovation in the education of, and service delivery by, health practitioners.
Role of AHPRA and the National Boards
AHPRA’s primary function is to facilitate administrative assistance and support the boards and the committees of each board in exercising their functions.
The functions of the Boards include overseeing the receipt, assessment, and investigation of notifications about people who are students or currently registered health practitioners.
The functions of the Boards also include establishing panels to conduct hearings about health and performance matters as well as professional standards matters.
Boards also refer matters to the tribunals of participating jurisdictions where necessary, and continually oversee the management of health practitioners by monitoring conditions, undertakings, and suspensions imposed against practitioners.
Notifications Made to AHPRA
A notification made against a practitioner is an expression of concern about a health practitioner’s conduct or fitness to practice. Notifications can be voluntary notifications made by members of the public, or mandatory notifications made under the specific circumstances prescribed under the National Law.
Voluntary notifications can be made against a practitioner with respect to conduct which is a “lesser standard” than that which might reasonably be expected from them by the public or their professional peers. They can also include notifications with respect to that practitioner’s knowledge, skill, or judgment possessed, or care exercised, to hold registration to practice their health profession, and whether that knowledge, skill, judgment, or care is below the standard reasonably expected of that practitioner. Voluntary notifications may also include general notifications about a practitioner’s character, in which case AHPRA may investigate whether the practitioner is a suitable and “fit and proper” person to hold registration in the profession.
Mandatory notifications are usually notifications made with respect to more serious conduct, as required under the prescribed circumstances set out in the National Law. Mandatory notifications are required to be made by the practitioner in relation to their own conduct (a self-notification) or in relation to conduct they may become aware of by one of their fellow practitioners. Mandatory notifications are also required to be made by employers and education providers in certain circumstances.
For example, a common mandatory notification includes a change in a practitioner’s police or criminal history (depending on the type of offence). Practitioners whose police or criminal history has changed should immediately contact lawyers experienced in this area of law to quickly assess whether a notification is required, as failing to do so within the short prescribed time can lead to regulatory action being taken against that practitioner for simply failing to notify AHPRA.
Mandatory notifiable conduct also includes but is not limited to:
- if a practitioner or student has an impairment that, in the course of the practitioner or student engaging in clinical work or training, may place the public at risk of harm.
- allegations involving practising whilst under the influence of alcohol or drugs
- engaging in sexual misconduct in connection with the profession; or
- where a practitioner practices their profession on a way that constitutes a significant departure from the accepted professional standards.
What if a false complaint or notification is made about a Practitioner?
Practitioners who are subject to notifications which are false or misleading are still required to bear the burden of defending those allegations, and can still have disciplinary action taken against them. Early legal advice is highly recommended, even when the practitioner is of the view that the notification lacks merit.
This is because a practitioner’s registration can still be subjected to conditions or suspension, especially when the allegations are serious or where the complaint is corroborated by multiple witnesses or sources of information. Similarly, the scope of the investigation may change. This means that although the initial notification may lack merit, a subsequent investigation could uncover other conduct which was unrelated to the original notification.
Also, AHPRA’s Boards have the power to restrict or entirely prevent a practitioner from practising whilst an investigation is ongoing. This is because the Boards adopt a risk-based approach, and even practitioners with a good reputation or who are ultimately found to be entirely innocent of the alleged conduct, can get caught up in interim disciplinary action being imposed by AHPRA. Obviously, the consequences of this action can be devastating to a practitioner’s employment or practice. Seeking legal advice early can assist in minimising the risk of such action being taken against a practitioner.
It is also important to note that persons who make notifications or who give information in the course of an investigation by the Board or AHPRA, can have their identities protected and are not usually liable, civilly or criminally, for giving the information, provided the information is given in “good faith”. As the term “good faith” is not defined in the National Law, it adopts its ordinary meaning of ‘well-intentioned or without malice’.
Power to take Immediate Action
As set out earlier above, in limited circumstances, AHPRA has the power to take immediate action against a practitioner. Immediate action includes restricting or suspending a practitioner’s ability to practice.
Examples provided by AHPRA of conduct that can potentially lead to immediate action being taken against that practitioner include:
- alleged serious criminal conduct (including where charges have been laid but before any conviction);
- conduct unconnected to practice that may diminish the public’s confidence in the profession;
- serious performance issues;
- sexual misconduct;
- substance abuse;
- breaches of conditions on registration;
- a practitioner has, or may have, an impairment that could pose a serious risk to the public;
- a practitioner’s registration was improperly obtained because the practitioner or someone else gave the relevant Board information or a document that was false or misleading in a material particular; and
- a practitioner’s registration has been cancelled or suspended in a non-participating jurisdiction
(whether within Australia or elsewhere).
Immediate action is usually taken when a Board reasonably believes that such action is required to protect the public, or whether it is otherwise in the public interest. The “public interest” ground contained in section 156(1)(e) was introduced into the National Law on 1 March 2018.
In our experience, this usually occurs when a practitioner is suspected of having engaged in serious criminal conduct, serious performance issues, stealing or taking drugs at or from work, inappropriate sexual conduct with a patient, serious impairments, breaches of conditions and any other conduct that seriously undermines the public’s confidence in the profession.
Criminal Histories Unrelated to the Practice of the Profession
A registered health practitioner who is charged with a serious criminal offence is still at risk of immediate action, even in circumstances where that criminal offence is unrelated to the practitioner’s practice.
AHPRA will still take action against the practitioner for criminal offences unrelated to the practice, under the public interest ground. Public interest is not exhaustively defined under the Act and specific considerations differ from case to case.
Health Assessments for Impairments
In some instances, a Board may require a practitioner to undergo a health assessment or performance assessment.
An impairment is defined under the National Law as:
“a physical or mental impairment, disability, condition or disorder (including substance abuse or dependence) that detrimentally affects or is likely to detrimentally affect a practitioner’s capacity to practise their profession.”
Whilst many health practitioners have ongoing conditions that are being successfully managed and which do not affect their ability to practice safely, the Board may require the practitioner to undergo a health assessment in circumstances where the practitioner is suspected to have an impairment which could adversely affect the practitioner’s ability to practice.
The Board is only required to have a “reasonable belief” to require a health assessment, which is a very low threshold that is easily achieved. This means that practitioners who do not have impairments can still be required to submit to health assessments.
A health assessment is defined under the National Law as:
“an assessment of a person to determine whether the person has an impairment, and includes a medical, physical, psychiatric or psychological examination or test of the person.”
Health practitioners should seek legal advice on health assessments and may, in certain circumstances, want to seek advice from lawyers on obtaining independent health reports of their own. It is recommended that those independent health reports should only be obtained with the assistance of lawyers, in order that the report writer is properly instructed and that the report covers relevant considerations.
Performance Assessments for Unsatisfactory Professional Performance
A Board may require a practitioner to also undergo what is known as a “performance assessment” in circumstances where the Board reasonably believes that the practitioner is practising their profession in a way that is “unsatisfactory”.
Unsatisfactory professional performance is defined to mean the:
“knowledge, skill or judgment possessed, or care exercised, by the practitioner in the practice of the health profession in which the practitioner is registered is below the standard reasonably expected of a health practitioner of an equivalent level of training or experience.”
Unsatisfactory professional performance is equally as serious as a finding of unprofessional conduct.
A performance assessment will involve AHPRA appointing an assessor to carry out that performance assessment. The practitioner will receive written notice from the Board setting out the nature of the assessment to be carried out. Whilst there are many forms of performance assessments, each one is specifically designed to address certain areas of concern. Depending on the unique reasons for the assessment, the focus may be on:
- assessment of patients;
- clinical reasoning and decision-making;
- response to emergency situations;
- document management; and/or
- prescribing, dispensing and the administration of drugs.
Assessors will gather information to ascertain whether the practitioner has met the expected standard, and will then prepare a report to the Board which forms conclusions on the quality of the health practitioner’s performance.
If the report makes an adverse finding about the practitioner, whether in relation to the performance of the profession or an impairment, then the Board may take steps to take action it considers necessary or appropriate under other divisions of the National Law.
Practitioners should cooperate with AHPRA with respect to health assessments but should also seek legal guidance throughout the process so that they can understand the scope of the assessment and be better and independently informed as to the process.
AHPRA has the power to investigate practitioners, and the scope of the investigation can change at any time based on the information that AHPRA obtains.
Usually practitioners will receive written notification that they are being investigated, which sets out the scope of the matters being investigated. However, a Board may not give notice if it reasonably believes that notifying the practitioner in question may:
- seriously prejudice the investigation;
- place a person’s health and safety at risk; or
- place a person at risk of harassment or intimidation.
AHPRA’s investigators may obtain information from a variety of difference sources including:
- the notifier;
- the practitioner;
- clinical records;
- witnesses; and/or
- independent experts.
Investigations can last weeks, months, or even years, depending on the complexity of the matter. Practitioners are entitled to receive updates from the Board on the progress of the investigation at least every three (3) months.
Practitioners who are notified or reasonably believe they are being investigated should immediately seek legal advice from lawyers experienced in this area of law so that appropriate steps are taken to obtain early instructions and protect their interests. This is because timeframes for practitioners to respond to allegations in writing can sometimes be very short on the basis that the Board must ensure that the investigation is conducted as quickly as possible, depending on the nature of what is being investigated.
By seeking legal advice early, a practitioner’s lawyers can be better prepared to assist a practitioner in preparing a response in short timeframes and minimises the need for requests for extensions of time.
Obligations to Cooperate (“Schedule 5 requests”) and Search Powers
AHPRA investigators can require a person to provide information or provide documents within a stated period of time.
Persons who fail to give information, attend to questions, or produce documents without a reasonable excuse in response to a Schedule 5 request can face serious penalties and practitioners can also face further regulatory action.
In certain circumstances investigators are also empowered to conduct a search of the practitioner’s place of practice, place of residence, or any other place for the purposes of conducting an investigation.
Once an investigator enters a place they have the power to:
- search any part of the place;
- inspect, measure, test, photograph or film any part of the place or anything at the place;
- take a thing, or a sample of a thing, for analysis, measurement or testing; and
- copy, or take an extract from, a document at the place.
Investigators have additional powers and persons should not attempt to prevent an investigator from carrying out their search powers, even if they believe that the investigator is not complying with the necessary procedures for carrying out those searches and should seek legal advice on cooperating and assisting investigators to the extent required. Failing to do so could result in penalties or further disciplinary action.
At the conclusion of an investigation, an investigator is required to then provide his or her findings to the Board with a written report.
The Board will then consider the report and decide whether or not to take further action. Further action may include:
- referring the matter to another entity (such as a health complaints entity);
- taking immediate action;
- directing the practitioner to undergo a health or performance assessment;
- taking relevant action under section 178 of the National Law;
- referring the matter to a panel; or
- referring the matter to a responsible tribunal.
If the Board considers that action is required, but not serious enough to refer to a responsible tribunal or panel, then the Board can take lower level disciplinary action which may include:
- cautioning the practitioner;
- accepting an undertaking from the practitioner;
- imposing conditions on the practitioner’s registration; or
- referring the matter to another entity.
Tribunal Proceedings and Performance and Professional Standards Panels
At the end of a performance and professional standards panel (“Panels”) or a disciplinary proceedings before the appropriate Tribunal of that state or territory, the decision maker will make a finding of fact on how to characterise the conduct of a practitioner.
Both Tribunals and Panels can make findings on whether:
- a practitioner has behaved in a way that constitutes unsatisfactory professional performance; or
- a practitioner has behaved in a way that constitutes unprofessional conduct.
However, only Tribunals can make more serious findings on whether:
- a practitioner has behaved in a way that constitutes professional misconduct
- a practitioner has an impairment; and/or
- a practitioner’s registration was improperly obtained.
A finding that a practitioner has engaged in unprofessional conduct is defined to mean “professional conduct that is of a lesser standard than that which might reasonably be expected of the health practitioner by the public or the practitioner’s professional peers.”
The National law includes examples of unprofessional conduct and lists them as:
- a contravention by the practitioner of the National Law, whether or not the practitioner has been prosecuted for, or convicted of, an offence in relation to the contravention; and
- a contravention by the practitioner of—
- a condition to which the practitioner’s registration was subject; or
- an undertaking given by the practitioner to the National Board that registers the practitioner; and
- the conviction of the practitioner for an offence under another Act, the nature of which may affect the practitioner’s suitability to continue to practise the profession; and
- providing a person with health services of a kind that are excessive, unnecessary or otherwise not reasonably required for the person’s well-being; and
- influencing, or attempting to influence, the conduct of another registered health practitioner in a way that may compromise patient care; and
- accepting a benefit as inducement, consideration or reward for referring another person to a health service provider or recommending another person use or consult with a health service provider; and
- offering or giving a person a benefit, consideration or reward in return for the person referring another person to the practitioner or recommending to another person that the person use a health service provided by the practitioner; and
- referring a person to, or recommending that a person use or consult, another health service provider, health service or health product if the practitioner has a pecuniary interest in giving that referral or recommendation, unless the practitioner discloses the nature of that interest to the person before or at the time of giving the referral or recommendation.
Whilst practitioners who are found to have engaged in unprofessional conduct do not usually face the prospect of having their registration cancelled, it is important to note that multiple instances of unprofessional conduct and/or instances of unprofessional conduct which are substantially below the standard reasonably expected of that practitioner, can amount to professional misconduct (see below), which can easily lead to the suspension of cancellation of a practitioner’s registration.
Professional misconduct of a registered heath practitioner is far more serious that unprofessional conduct, and includes:
- unprofessional conduct by the practitioner that amounts to conduct that is substantially below the standard reasonably expected of a registered health practitioner of an equivalent level of training or experience; and
- more than one instance of unprofessional conduct that, when considered together, amounts to conduct that is substantially below the standard reasonably expected of a registered health practitioner of an equivalent level of training or experience; and
- conduct of the practitioner, whether occurring in connection with the practice of the health practitioner’s profession or not, that is inconsistent with the practitioner being a fit and proper person to hold registration in the profession.
A decision that a practitioner has engaged in professional misconduct does not have the automatic effect of cancelling their registration, but it is often the outcome that occurs unless that practitioner can take steps to demonstrate why a less serious disciplinary action is warranted in the circumstances.
Determinations, Sanctions, or Penalties
Determinations, sanctions, or penalties refer to action available to the decision maker under the National Law once a finding has been made about a practitioner.
The appropriate sanction or penalty will greatly depend on the facts and circumstances of each matter, the personal situation of the practitioner and the application of the relevant principles to that matter.
In circumstances where finding has been made against a practitioner, a Tribunal may decide to:
- caution or reprimand the practitioner;
- impose a condition on the practitioner’s registration;
- require the practitioner to pay a fine of not more than $30,000 to the relevant Board that registers the practitioner;
- suspend the practitioner’s registration for a specified period; or
- cancel the practitioner’s registration.
Determinations, sanctions, and penalties are designed to protect the public and is distinct from punishing a practitioner. Protection is achieved through both specific deterrence and general deterrence.
Specific deterrence is designed to ensure the practitioner is aware of the seriousness of their conduct, and is intended to deter that practitioner from any further departures. General deterrence is aimed at warning other members of the profession against engaging in certain conduct which is similar to that of the accused practitioner.
Practitioners should seek legal advice as early as possible so that steps can be taken to ensure that disciplinary action is avoided and, where possible, to avoid the possibility of more serious action being taken.
If appropriate steps are taken early in a matter, even where serious allegations are substantiated, a practitioner may be able to avoid their registration being suspended or cancelled.
Health Practitioners who are subject to an investigation or disciplinary action by AHPRA should seek legal advice immediately upon becoming aware of any investigation against them.
Potts Lawyers are experienced at assisting health practitioners across Australia facing allegations of impairments or conduct which may amount to unsatisfactory professional performance, unprofessional conduct, and professional misconduct.
By tailoring the strategy to the unique circumstances of the practitioner and the allegations against them, Potts Lawyers has successfully assisted practitioners and students, by resolving matters early and at minimal expense.
Seeking legal advice as early as possible and taking early proactive steps increase the prospects of succeeding at an earlier stage, thus also minimising the total legal costs incurred.
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