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The Senate
Community Affairs References Committee
Administration of registration and notifications by the Australian Health Practitioner Regulation Agency and related entities under the Health Practitioner Regulation National Law
© Commonwealth of Australia 2022
ISBN 978-1-76093-390-6
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iii
Committee Members
Chair Senator Janet Rice AG, VIC
(from 7 September 2021)
Deputy Chair Senator Wendy Askew LP, TAS
Members Senator Catryna Bilyk ALP, TAS
Senator Nita Green ALP, QLD
Senator Hollie Hughes LP, NSW
Senator Anne Urquhart ALP, TAS
Substitute Members Senator Marielle Smith ALP, SA
(For Senator Urquhart on 9 August 2021) Senator Deborah O’Neill ALP, NSW
(For Senator Bilyk on 9 August 2021) Senator Tim Ayres ALP, NSW
(For Senator Green on 1 September 2021) Senator Deborah O’Neill ALP, NSW
(For Senator Bilyk on 3 February 2022) Senator Karen Grogan ALP, SA
(For Senator Green on 29 March 2022 and 1 April 2022)
Participating Members Senator the Hon David Fawcett LP, SA
Senator Rex Patrick IND, SA
Senator Deborah O’Neill ALP, NSW
Former Member Senator Rachel Siewert AG, WA
(Chair until 6 September 2021)
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Secretariat Apolline Kohen, Acting Committee Secretary Pothida Youhorn, Committee Secretary Sina Hutton, Principal Research Officer Zoe Thomas, Principal Research Officer Caroline Quinn, Principal Research Officer Kathleen McGarry, Senior Research Officer Lisa Butson, Senior Research Officer Carol Stewart, Administrative Officer Claire Holden, Administrative Officer
Department of the Senate PO Box 6100 Parliament House Canberra ACT 2600
Ph: 02 6277 3515 Fax: 02 6277 5829 E-mail: community.affairs.sen@aph.gov.au Internet: www.aph.gov.au/senate_ca
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Table of Contents
Committee Members ........................................................................................................................ iii
Terms of Reference ............................................................................................................................ ix
Abbreviations ..................................................................................................................................... xi
List of Recommendations .............................................................................................................. xiii
Chapter 1—Introduction .................................................................................................................... 1
Regulation of health practitioners ..................................................................................................... 2
AHPRA and the national boards ........................................................................................... 3
National Health Practitioner Ombudsman ......................................................................... 3
Australian Commission on Safety and Quality in Health Care ......................................... 4
Registration ........................................................................................................................................... 4
Notifications .......................................................................................................................................... 5
Co-regulatory jurisdictions ...................................................................................................... 5
Previous inquiries and reviews .......................................................................................................... 7
Legislative changes .............................................................................................................................. 8
Conduct of the inquiry ........................................................................................................................ 9
Structure of this report ...................................................................................................................... 10
Chapter 2—Registration................................................................................................................... 11
Registration processes ....................................................................................................................... 11
Registration standards .......................................................................................................... 13
Timeliness ................................................................................................................................ 15
Re-registration ......................................................................................................................... 16
Student registration ................................................................................................................ 17
COVID-19 registration ........................................................................................................... 18
Supervised practice ........................................................................................................................... 19
Availability of supervisors ................................................................................................... 19
Impact on the workforce ........................................................................................................ 20
Administrative burden........................................................................................................... 20
Review of supervised practice requirements ...................................................................... 21
Overseas-qualified health practitioners .......................................................................................... 21
Workforce shortages ............................................................................................................... 22
vi
Timeliness and duplication of registration process ........................................................... 23
English language requirements ........................................................................................... 24
Specialist registration ....................................................................................................................... 25
Concerns about the cosmetic surgery industry .................................................................. 25
Concerns about podiatric surgery ....................................................................................... 28
Areas of practice endorsement.............................................................................................. 28
Unregulated professions ................................................................................................................... 29
Committee view ................................................................................................................................. 30
Chapter 3—Notifications ................................................................................................................. 33
Handling notifications ....................................................................................................................... 33
Overview of the process ........................................................................................................ 33
Notifications in co-regulatory jurisdictions ........................................................................ 34
Where to complain ............................................................................................................................. 35
Confusion about where to take concerns ............................................................................ 35
Complaints that should be raised elsewhere ...................................................................... 36
Issues with co-regulation ....................................................................................................... 37
Role of health practice or service .......................................................................................... 38
Ability to refer matters .......................................................................................................... 39
Timeliness ......................................................................................................................................... 40
Protracted timeframes ............................................................................................................ 40
Volume .................................................................................................................................... 43
Efforts to improve timeframes .............................................................................................. 44
Assessing and prioritising notifications.......................................................................................... 45
Low risk notifications ............................................................................................................ 46
Potential ‘meritless’ notifications ......................................................................................... 46
Reforms introduced by AHPRA ........................................................................................... 47
Clinical input ...................................................................................................................................... 47
Efforts to improve clinical input .......................................................................................... 48
Ongoing issues ........................................................................................................................ 48
Transparency and communication ................................................................................................. 49
Lack of transparency ............................................................................................................. 49
Inadequate communication .................................................................................................. 50
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Procedural fairness ........................................................................................................................... 52
Insufficient information ........................................................................................................ 52
Presumption of guilt ............................................................................................................... 52
Insufficient opportunity to respond ..................................................................................... 53
Bias and conflicts of interest .................................................................................................. 55
Outcomes ............................................................................................................................................ 56
No further action ..................................................................................................................... 56
Conditions ............................................................................................................................... 57
Regulatory approach ............................................................................................................. 59
Appeals ................................................................................................................................................ 60
Broadening appeal rights ....................................................................................................... 61
Systemic issues ................................................................................................................................... 61
Committee view ................................................................................................................................ 62
Chapter 4—The impact of notifications ........................................................................................ 67
Impact on practitioners ..................................................................................................................... 67
Mental health and suicide risks ............................................................................................ 67
Uncertainty and reputational damage ................................................................................ 68
Addressing the stress of the notifications process ............................................................. 69
Vexatious complaints ........................................................................................................................ 70
Im
pact on practitioners ......................................................................................................... 70
Prevalence ............................................................................................................................... 70
Actions taken by AHPRA ...................................................................................................... 71
Penalties and compensation ................................................................................................. 72
Anonymous notifications .................................................................................................................. 73
The role of anonymous complaints ...................................................................................... 73
R
egulatory approach ............................................................................................................. 74
Mandatory reporting ......................................................................................................................... 75
Western Australian model .................................................................................................... 75
Further reforms needed ......................................................................................................... 76
Support and prevention ................................................................................................................... 77
Existing supports ................................................................................................................... 77
Improving supports ................................................................................................................ 78
viii
Proactive education ............................................................................................................... 79
No
tifiers experience ........................................................................................................................... 80
Committee view ................................................................................................................................. 81
A
ppendix 1—Submissions and additional information ........................................................... 83
Appendix 2—Public hearings ......................................................................................................... 89
ix
Terms of Reference
The administration of registration and notifications by the Australian Health Practitioner Regulation Agency and related entities under the Health Practitioner Regulation National Law, with particular reference to:
(a) the current standards for registration of health practitioners by the Australian Health Practitioner Regulation Agency (AHPRA) and the National Boards under the Health Practitioner Regulation National Law (National Law);
(b) the role of AHPRA, the National Boards, and other relevant organisations, in addressing concerns about the practice and conduct of registered health practitioners;
(c) the adequacy and suitability of arrangements for health practitioners subject to supervised practice as part of the registration process or due to a notification;
(d) the application of additional requirements for overseas-qualified health practitioners seeking to become registered in their profession in Australia;
(e) the role of universities and other education providers in the registration of students undertaking an approved program of study or clinical training in a health profession;
(f) access, availability and adequacy of supports available to health practitioners subject to AHPRA notifications or other related professional investigations;
(g) the timeliness of AHPRA’s investigation of notifications, including any delays in handling, assessment and decision-making, and responsiveness to notifiers;
(h) management of conflict of interest and professional differences between AHPRA, National Boards and health practitioners in the investigation and outcomes of notifications;
(i) the role of independent decision-makers, including state and territory tribunals and courts, in determining the outcomes of certain notifications under the National Law;
(j) mechanisms of appeal available to health practitioners where regulatory decisions are made about their practice as a result of a notification;
x
(k) how the recommendations of previous Senate inquiries into the administration of notifications under the National Law have been addressed by the relevant parties; and
(l) any other related matters.
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Abbreviations
AACMA Australian Acupuncture and Chinese Medicine Association AAPi Australian Association of Psychologists incorporated AASW Australian Association of Social Workers ACCSM Australasian College of Cosmetic Surgery and Medicine ACN Australian College of Nursing
ACNP Australian College of Nurse Practitioners AHPRA Australian Health Practitioner Regulation Agency AMA Australian Medical Association
ANMF Australian Nursing and Midwifery Federation ANZCA Australian and New Zealand College of Anaesthetists ANZAOMS Australian and New Zealand Association of Oral and Maxillofacial Surgeons
AoPE area of practice endorsement
APA Australian Physiotherapy Association APS Australian Psychological Society
ASAPS Australasian Society of Aesthetic and Plastic Surgeons COAG Council of Australian Governments CPD continuing professional development CRG AHPRA’s Community Reference Group commission Australian Commission on Safety and Quality in Health Care committee Senate Community Affairs References Committee Guild Pharmacy Guild of Australia
HCCC Health Care Complaints Commission HPARA Health Professionals Australia Reform Association IMGs international medical graduates
MCA Medical Consumers Association
MIGA Medical Insurance Group Australia National Law Health Practitioner Regulation National Law National Scheme National Registration and Accreditation Scheme NSW New South Wales
NPHO National Health Practitioner Ombudsman NRAS National Registration and Accreditation Scheme OA Optometry Australia
OHO Office of the Health Ombudsman
OTA Occupational Therapy Australia
QNMU Queensland Nurses and Midwives’ Union RACGP Royal Australian College of General Practitioners RACS Royal Australasian College of Surgeons RANZCP Royal Australian and New Zealand College of Psychiatrists
xii
RISE Refugees, Survivors and Ex-Detainees
xiii
List of Recommendations
Recommendation 1
2.111 The committee recommends that proposed reforms to the National Law to regulate the use of the title ‘surgeon’ undergo broad consultation and be progressed as a priority by the Ministerial Council.
Recommendation 2
2.113 The committee recommends that AHPRA and the national boards introduce a more flexible re-registration model across professions that would enable health practitioners to more easily re-enter the workforce after a period of absence.
Recommendation 3
2.115 The committee considers there is a substantial case for regulation of currently unregulated professions including social workers, aged care workers and personal care workers and recommends the Ministerial Council consider whether these professions should be included in the National Regulation and Accreditation Scheme.
Recommendation 4
3.159 The committee recommends that AHPRA undertakes urgent and immediate action in relation to supervisory failures and ensure that individual cases are not indicative of a systemic failure.
Recommendation 5
3.160 The committee recommends that all supervisors should have a direct point of contact within AHPRA and that this point of contact should be made available prior to any contractual arrangements being made, as well as throughout the entire supervisory period.
Recommendation 6
3.164 The committee recommends AHPRA reviews and simplifies its published information about notifications and other complaint pathways.
Recommendation 7
3.165 The committee recommends that AHPRA and the national boards undertake education and awareness activities, explaining notifications and other complaints pathways, with health practices and services.
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Recommendation 8
3.167 The committee recommends that the Ministerial Council considers reforms to the National Law to enable health practices and services to be referred low risk notifications to be dealt with in the first instance, and that AHPRA and the national boards have discretion to refuse these matters on that ground.
Recommendation 9
3.168 The committee recommends that notifications accepted by AHPRA be limited to clinical issues relating to patient safety.
Recommendation 10
3.171 The committee recommends that AHPRA and the national boards consider improving the notifications data it collects and publishes to better understand where protracted timeframes are experienced and the reasons for any delays.
Recommendation 11
3.174 The committee recommends that AHPRA and the national boards undertake an analysis of the cause of protracted notifications timeframes and identify ways to further improve timeliness. Consideration should be given to:
ï what further decision-making powers of the national boards can be delegated to AHPRA; ï the allocation of resources to deal with increasing volumes of notifications; and ï establishing timeframes for aspects of the notifications process.
Recommendation 12
3.177 The committee recommends that AHPRA and the national boards develop and publish a strategy for identifying systemic issues and working with stakeholders to proactively address areas of concern.
Recommendation 13
4.86 The committee recommends that the Ministerial Council agrees to remove the current mandatory reporting requirements and align the approach with the Western Australian model.
Recommendation 14
4.90 The committee recommends that AHPRA and the national boards develop and fund a comprehensive strategy for providing tailored support for the notifications process to practitioners in all regulated professions.
1
Chapter 1 Introduction
1.1 The registration and oversight of health practitioners in Australia is a complex area of regulation that covers 16 health professions and over 800 000 registered individuals.1
1.2 The National Registration and Accreditation Scheme (the National Scheme) was established in 2010 by the Health Practitioner Regulation National Law (National Law), which has been adopted and applied in each of the eight Australian jurisdictions. Prior to the National Scheme, each state and territory had its own system for registering and regulating health professionals.2
1.3 Under the National Scheme, health practitioners’ registration and accreditation, as well as complaints about health practitioners, are managed by the Australian Health Practitioner Regulation Agency (AHPRA) and national boards for each of the health professions. At the highest level, the National Scheme is overseen by a Ministerial Council comprising of Health Ministers from each jurisdiction.3
1.4 For both health practitioners and members of the public, the National Scheme can be opaque and difficult to navigate. Although registrations are managed nationally, complaints about registered health practitioners are managed differently in Queensland and New South Wales (NSW). In addition, the operation of the National Scheme alongside other health complaints mechanisms is not well understood, and can lead to disappointment with regulatory processes and outcomes.
1.5 For AHPRA and the national boards, the task of regulating health practitioners involves an inherent tension between potential community safety risks and health practitioners’ livelihoods. This tension plays out across the range of regulatory functions, from the requirements and conditions relating to professional registrations, to the management of complaints about health practitioners (called ‘notifications’ under the National Scheme).
1 Australian Health Practitioner Regulation Agency and National Boards (AHPRA), Annual Report
2019-20, p. ii.
2 AHPRA and the national boards, Submission 78, p. 1; Mr Kim Snowball, Independent Review of the
National Registration and Accreditation Scheme for health professions, December 2014, p. 12. See also, AHPRA, A unique and substantial achievement: Ten years of national health practitioner regulation in Australia, February 2020, p. 2. The National Scheme commenced operation on 1 July 2010 and on 18 October 2010 in Western Australia.
3 Health Chief Executives Forum, Submission 4, p. 2; AHPRA, Submission 78, p. 1. See also discussion
in Community Affairs References Committee, Complaints mechanism administered under the Health Practitioner Regulation National Law, May 2017, p. 2.
2
1.6 Over the past decade, the National Scheme has been subject to ongoing maturation and legislative reform, prompted in part by independent and parliamentary inquiries.4 However, as this inquiry has found, despite clear improvements, there are persistent issues with the administration of registrations and notifications. Significantly, health practitioners and notifiers continue to experience delays, disappointment, confusion and stress with regulatory processes and outcomes.
1.7 This inquiry has focused on ongoing and emerging issues experienced by health practitioners and notifiers with registrations and notifications, what has been done to address these issues by AHPRA, the national boards, and related regulatory bodies, and what more can be done to improve processes and outcomes.
Regulation of health practitioners 1.8 The regulation of registered health practitioners under the National Scheme involves a range of entities.
1.9 The registration of health practitioners across Australia is managed by AHPRA and the national boards. Notifications, however, are managed by AHPRA and the boards, except in Queensland and New South Wales, where state-based regulatory bodies have responsibility.5
1.10 Overall oversight for the National Scheme rests with the Ministerial Council. The National Health Practitioner Ombudsman (NHPO) provides independent oversight of AHPRA and the national boards’ administrative processes.6
Figure 1.1 Entities involved in the National Scheme
Source: AHPRA Annual Report 2019-20, p. 14.
1.11 The National Scheme only regulates individual health practitioners, and not health services themselves. Complaints about health services, fees, and
4 See further discussion below under ‘Previous inquiries and reviews’.
5 See further discussion below under ‘Notifications’.
6 AHPRA, Annual Report 2019-20 p. 14.
3
unregistered health practitioners, are dealt with by health complaints entities in the states and territories.7
AHPRA and the national boards 1.12 Health practitioners in the 16 regulated health professions are regulated by AHPRA and the national boards.8 There are 15 national boards for the 16 professions.9
1.13 The boards’ role is to protect the public by accrediting courses of study, setting professional standards, registering practitioners and managing notifications about registered health practitioners.10
1.14 AHPRA provides policy advice, administrative assistance and support to the boards. This includes:
ï developing registration standards, codes and guidelines; ï publishing an online national register of practitioners; ï managing registration and renewal processes for local and overseas-qualified health practitioners, and student registration;
ï managing notifications about the professional conduct, performance or health of registered health practitioners; and ï monitoring and auditing registered health practitioners to ensure compliance with board requirements.11
National Health Practitioner Ombudsman 1.15 The NHPO oversights AHPRA and the national boards. It has three main roles: complaint resolution, systemic improvement and community engagement.12
1.16 The NHPO considers whether the way a matter was handled by AHPRA or the national boards was fair and reasonable, and in accordance with the
7 AHPRA, Annual Report 2019-20, p. 14.
8 AHPRA, What we do, https://www.ahpra.gov.au/About-Ahpra/What-We-Do.aspx, (accessed
5 October 2021).
9 AHPRA, Annual Report 2019-20, p. 15. The national boards include the Aboriginal and Torres Strait
Islander Health Practice Board, Chinese Medicine Board, Chiropractic Board, Dental Board, Medical Board, Medical Radiation Practice Board, Nursing and Midwifery Board, Occupational Therapy Board, Optometry Board, Osteopathy Board, paramedicine Board, Pharmacy Board, Physiotherapy Board, Podiatry Board and Psychology Board. The Nursing and Midwifery Board covers both the nursing and midwifery professions.
10 AHPRA, What we do, https://www.ahpra.gov.au/About-Ahpra/What-We-Do.aspx, (accessed
5 October 2021).
11 National Health Practitioner Ombudsman (NHPO), What we do, https://www.nhpo.gov.au/what-we-do ( accessed 7 October 2021).
12 NHPO, What we do, https://www.nhpo.gov.au/what-we-do (accessed 7 October 2021).
4
relevant policies, procedures and legislative requirements. It can investigate a complaint; refer the matter to AHPRA for response; assist AHPRA to address the complaint without an investigation; or decide that the handling of the matter was reasonable and take no further action.13
1.17 The NHPO is also the National Health Practitioner Privacy Commissioner. The Commissioner accepts complaints about how AHPRA and the national boards use or share personal information.14
Australian Commission on Safety and Quality in Health Care 1.18 The work of the Australian Commission on Safety and Quality in Health Care (the commission) is complementary to that of AHPRA. Its role is to develop national safety and quality standards and clinical care standards, as well as to
provide information and resources about safety and quality.15
1.19 The commission and AHPRA meet regularly and collaborate on joint projects. Current activities include raising awareness of, and compliance with, the National Safety and Quality Health Service Standards, and raising awareness of the clinical governance responsibilities of clinicians.16
Registration 1.20 For a health practitioner to practice under one of the ‘protected titles’ they must apply to register with AHPRA. There are protected titles for each profession, for example, a ‘dentist’, ‘nurse’ and ‘psychologist’. The National
Law makes it an offence to use protected title, or hold yourself out to be a registered practitioner, if you are not one.17
1.21 The national boards are responsible for developing registration standards, codes and guidelines outlining the requirements and expectations of registered health practitioners (including overseas-trained and qualified practitioners) and students in their respective fields of practice.18
1.22 Under the National Law, registration standards must outline certain requirements, undergo extensive consultation, and be approved by the
13 NHPO, Commissioner complaints, https://www.nhpo.gov.au/commissioner-complaints
(accessed 7 October 2021).
14 NHPO, Commissioner complaints, https://www.nhpo.gov.au/commissioner-complaints
(accessed 7 October 2021).
15 Australian Commission on Safety and Quality in Health Care, Our work,
https://www.safetyandquality.gov.au/our-work (accessed 26 October 2021).
16 Australian Commission on Safety and Quality in Health Care, Submission 24, pp. 2-3.
17 See further discussion in Chapter 2, from paragraph 2.3. See also AHPRA, FAQs,
https://www.ahpra.gov.au/About-Ahpra/What-We-Do/FAQ.aspx (accessed 9 November 2021)
18 AHPRA, Consultation process of National Boards, July 2020.
5
Ministerial Council, which as discussed above, comprises the Health Ministers from each jurisdiction.19
Notifications 1.23 Notifications are often referred to as complaints, but they are a specific type of complaint—they relate to the conduct, health and performance of registered health practitioners.20 They can be made by a consumer, another practitioner or
an employer.21
1.24 The National Law sets out the powers and functions of the national boards and AHPRA in addressing notifications. As discussed in further detail in Chapter 3, all notifications received by AHPRA must be assessed and provided to the relevant national board to consider.22
1.25 The national boards have the power to intervene in matters that present an ongoing risk to public safety or that call into question a health professional’s overall fitness to practice.23
1.26 A range of regulatory actions are available, including the ability for a national board to take immediate action, start an investigation, or refer a notification for further consideration by a tribunal, health panel or performance and professional standards panel.24
Co-regulatory jurisdictions 1.27 As noted above, notifications are managed differently in NSW and Queensland. These states are referred to as the co-regulatory jurisdictions.25
1.28 An overview of the differences in notifications processes between the jurisdictions is set out in Figure 1.2 below.
19 AHPRA, Consultation process of National Boards, July 2020, [p. 1]. See further discussion in
Chapter 2, from paragraph 2.8.
20 AHPRA, What we do, https://www.ahpra.gov.au/About-Ahpra/What-We-Do.aspx (accessed
8 October 2021).
21 AHPRA, Overview of the Regulatory Guide, June 2020, p. 2.
22 See discussion in Chapter 3, from paragraph 3.3.
23 AHPRA, Investigating practitioners, https://www.ahpra.gov.au/Notifications/How-we-manage-concerns/Investigation.aspx ( accessed 8 October 2021).
24 See further discussion in Chapter 3, from paragraph 3.3; AHPRA, Regulatory Guide, pp. 15-16.
25 AHPRA, Regulatory Guide, April 2021, p. 8.
6
Figure 1.2 Overview of co-regulatory arrangements
Source: AHPRA, Concerned about a health practitioner?: Overview of co-regulatory arrangements, https://www.ahpra.gov.au/~/link.aspx?_id=337001BD4C904F418BF412685FB02EA8&_z=z
New South Wales 1.29 In NSW, complaints about the care, treatment, health or behaviour of a registered health practitioner are managed through a co-regulatory arrangement between the health professional councils (the state equivalents of
the national boards), which are supported administratively by the Health Professional Councils Authority, and the Health Care Complaints Commission (HCCC).26
1.30 The councils work with the HCCC to manage complaints, and decide which agency should deal with each complaint, with complaints about unsatisfactory professional conduct or professional misconduct referred for investigated by
26 Health Professional Councils Authority, Who we are, https://www.hpca.nsw.gov.au/who-we-a re-hpca (accessed 7 October 2021).
7
the HCCC. The HCCC has a wider role in complaints management covering unregistered health practitioners and health services.27
1.31 The national boards have no role in handling notifications about practitioners in NSW, although AHPRA maintains a role in considering any mandatory reports and publishing decisions in the national register of practitioners.28
Queensland 1.32 In Queensland, the Office of the Health Ombudsman receives all notifications and concerns about practitioners, and retains only matters involving significant issues of public safety and serious professional misconduct. The
other notifications are referred to AHPRA and the national boards to manage.29
Previous inquiries and reviews 1.33 There have been numerous inquiries into the operation of AHPRA and the National Law.
1.34 The Senate Finance and Public Administration References Committee examined AHPRA's implementation and administration of the National Scheme in 2011.30 The report made 10 recommendations that reflected the complexity of the scheme, and wide-ranging early service-delivery problems.31
1.35 In 2014, the Australian Health Ministers' Advisory Council commissioned an independent review of the scheme by Mr Kim Snowball (Snowball Review). The final report made 33 recommendations including recommendations specifically related to AHPRA's notifications and investigation processes.32
1.36 In 2016 the Senate Community Affairs References Committee (the committee) investigated the role of the existing health complaints process in dealing with the bullying and harassment of medical students and practitioners. This
27 Health Professional Councils Authority website, Who we are, https://www.hpca.nsw.gov.au/who-we-are-hpca ( accessed 7 October 2021); Health Care Complaints Commission, ‘Conduct pathway’ https://www.hpca.nsw.gov.au/node/578 and ‘Mandatory Reporting’, https://www.hccc.nsw.gov.au/ health-providers/mandatory-reporting ( accessed 10 November 2021).
28 AHPRA, Annual Report 2019-20, p. 12.
29 AHPRA, Who we work with, https://www.ahpra.gov.au/About-Ahpra/What-We-Do/Who-we-work-with.aspx ( accessed 7 October 2021).
30 Senate Standing References Committee on Finance and Public Administration, The administration of
health practitioner registration by the Australian Health Practitioner Regulation Agency (AHPRA), 3 June 2011.
31 Senate Standing References Committee on Finance and Public Administration, The administration of
health practitioner registration by the Australian Health Practitioner Regulation Agency (AHPRA), 3 June 2011, pp. xi-xii.
32 Mr Kim Snowball, Independent review of the national registration and accreditation scheme for health
professions, December 2014, p. 1; Senate Community Affairs References Committee, Medical complaints process in Australia, November 2016, p. 9.
8
included how the notifications process itself had been misused by some practitioners as a form of bullying.33
1.37 During that inquiry, systemic issues about the notifications process were raised. There were concerns among practitioners that the process permitted vexatious complaints and that there were deficiencies in the way investigations were handled. This prompted the committee to recommend the establishment of a further inquiry, conducted in 2017, to examine the notifications mechanism.34
1.38 The committee’s 2017 inquiry identified significant issues with AHPRA’s notifications process. Its final report made 14 recommendations aimed at improving timeliness, transparency and communication, and specifically addressing concerns about vexatious complaints, appeal rights, clinical input and the management of conflicts of interest.35 Many of the recommendations have been implemented, with one recommendation not supported by the Government.36
Legislative changes 1.39 In response to the Snowball Review a staged program of legislative change was agreed by all jurisdictions.37
1.40 The first tranche of amendments to the National Law was made by the Health Practitioner Regulation National Law and Other Legislation Amendment Act 2017. This included improvements to the management of notifications, and amendments to the disciplinary and enforcement powers of the national boards to ‘strengthen public protection and ensure fairness for notifiers and respondents’.38
1.41 In 2019 the Ministerial Council agreed on a policy which formed the basis of the second tranche of legislative amendments. The bill to enact the reforms is
33 Senate Community Affairs References Committee, Medical complaints process in Australia,
November 2016, p. 4.
34 Senate Community Affairs References Committee, Complaints mechanism administered under the
Health Practitioner Regulation National Law, May 2017, p. 1.
35 Senate Community Affairs References Committee, Complaints mechanism administered under the
Health Practitioner Regulation National Law, May 2017, p. ix.
36 For detailed information on the Government’s response to the committee’s 14 recommendations,
please see: https://www.aph.gov.au/Parliamentary_Business/Committees/Senate/Community_ Affairs/ComplaintsMechanism/Government_Response ( accessed 25 March 2022).
37 Australian Health Ministers’ Advisory Council, Guide to the National Registration and Accreditation
Scheme for health professions, July 2018, p. 4.
38 Australian Health Ministers’ Advisory Council, Guide to the National Registration and Accreditation
Scheme for health professions, July 2018, p. 2.
9
expected to be introduced into the Queensland Parliament (as host jurisdiction) in late 2021 or early 2022.39 It was noted that:
The proposed reforms include ‘increasing regulatory oversight and control of rogue and unregistered practitioners, improving the administrative operations and efficiency of the scheme [and] promoting better information-sharing between regulatory and other government agencies’.40
1.42 Additional legislative amendments were also agreed, to emphasise that public protection is paramount in administering the National Scheme, and to require AHPRA to consult with patient safety bodies and consumer organisations about any changes to registration requirements.41
Conduct of the inquiry 1.43 On 18 March 2021 the Senate referred the administration of registration and notifications by AHPRA and related entities under the Health Practitioner Regulation National Law for inquiry and report by 24 November 2021.42 On
23 November, the Senate agreed to extend the reporting date to the Friday of the first sitting week in March 2022.43
1.44 The inquiry was given broad terms of reference relating to health practitioner registration and the management of notifications by AHPRA and the other health regulators.44
1.45 The inquiry was advertised on the inquiry's website and the committee wrote to organisation and individuals to invite submissions by 30 April 2021. The committee continued to receive submissions after this date.
1.46 The committee received 144 submissions which are listed at Appendix 1. The majority of submissions were from individuals who provided details of their complaint with AHPRA, which the committee accepted on a confidential basis.
1.47 The committee held three public hearings in Canberra on 8 and 9 July 2021 and on 22 September 2021, as well as three in camera hearings.
1.48 Transcripts for all public hearings are available on the committee’s website, and a list of the witnesses is at Appendix 2.
39 AHPRA and the national boards, Submission 78, p. 1.
40 COAG Health Council, Communiqué, 31 October - 1 November 2019, p. 1.
41 COAG Health Council, Communiqué, 31 October - 1 November 2019, pp. 1-2.
42 Journals of the Senate, No. 97, 18 March 2021, pp. 3375-3376.
43 Journals of the Senate, No. 127, 23 November 2021, p. 4276.
44 For the inquiry’s terms of reference, see the inquiry’s website,
https://www.aph.gov.au/Parliamentary_Business/Committees/Senate/Community_Affairs/AHPR A/Terms_of_Reference ( accessed 29 September 2021).
10
Structure of this report 1.49 Following this introductory chapter, the report features three chapters which cover the following matters:
ï Chapter 2 examines the registration process for health practitioners and related matters; ï Chapter 3 examines the administration of notifications and some of the key issues identified with the process; and ï Chapter 4 discusses the impact of notifications on health practitioners.
1.50 In this report, references to Committee Hansard are to proof transcripts. Page numbers may vary between proof and official transcripts.
11
Chapter 2 Registration
2.1 Registration is a mandatory requirement for health practitioners who wish to use one of the protected titles (such as ‘medical practitioner’ or ‘nurse’) under the National Law. The Australian Health Practitioner Regulation Agency (AHPRA) manages the registration and renewal processes for practitioners and publishes a national register, which is a list of every registered health practitioner in Australia.
2.2 This chapter gives an overview of the registration process and outlines the issues identified by inquiry participants, including:
ï registration standards and related processes; ï supervised practice requirements; ï overseas-qualified health practitioners; ï specialist registration and areas of practice; and ï unregulated professions.
Registration processes 2.3 AHPRA manages the registration process for the 16 regulated professions. There are several types of registration, including general registration for practitioners who meet the eligibility and qualification requirements set out in
sections 52 and 53 of the National Law, and specialist registration for practitioners who meet the required standards to use a ‘specialist title’ within a profession. For example, in the general field of dentistry there are 13 recognised specialisations, such as oral surgery and forensic odontology.1
2.4 In 2019-20, there were 801 659 registered health practitioners in Australia.2 Table 2.1 (on the next page) provides a list of the regulated professions and their accompanying protected titles.
2.5 Each profession has its own standards (developed by the respective national board) that applicants must meet in addition to the five core standards for all professions: criminal history, English language skills, recency of practice, continuing professional development and professional indemnity insurance.3
1 There are other categories of registration including: limited registration, non-practising
registration, and student registration. See Australian Health Practitioner Regulation Agency (AHPRA), Fact Sheet: Registration Types, 20 April 2010, p. 1.
2 AHPRA, Annual report 2019-20, p. 2.
3 AHPRA, Registration Standards, https://www.ahpra.gov.au/Registration/Registration-Standards.aspx ( accessed 2 November 2021).
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2.6 The assessment of a complete application can take six to eight weeks, depending on the time of year. A specialist application, where a general registration is already held, has a processing time of approximately two weeks. Student assessments are usually made two weeks after AHPRA receives a graduate’s results from their education provider.4
2.7 Following a successful assessment, individuals are informed of the outcome and listed on the national register of practitioners.
Table 2.1 Register of practitioners and protected titles
Profession Protected title
Aboriginal and Torres Strait Islander Health Practice Aboriginal and Torres Strait Islander health practitioner
Aboriginal health practitioner
Torres Strait Islander health practitioner
Chinese Medicine Chinese medicine practitioner
Chinese herbal dispenser
Chinese herbal medicine practitioner
Oriental medicine practitioner
Acupuncturist
Chiropractic Chiropractor
Dental Dentist
Dental therapist
Dental hygienist
Dental prosthetist
Oral health therapist
Medical Medical practitioner
Medical Radiation Practice Medical radiation practitioner
Diagnostic radiographer
Medical imaging technologist
Radiographer
Nuclear medicine scientist
Nuclear medicine technologist
Radiation therapist
4 AHPRA, Applying for Registration, https://www.ahpra.gov.au/Registration/Registration-Process.aspx ( accessed 20 October 2021).
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Nursing and Midwifery Nurse
Registered nurse
Nurse practitioner
Enrolled nurse
Midwife
Midwife practitioner
Occupational Therapy Occupational therapist
Optometry Optometrist
Optician
Osteopathy Osteopath
Paramedicine Paramedic
Pharmacy Pharmacist
Pharmaceutical chemist
Physiotherapy Physiotherapist
Physical therapist
Podiatry Podiatrist
Chiropodist
Psychology Psychologist
Source: AHPRA, FAQ, https://www.ahpra.gov.au/~/link.aspx?_id=D4E5EF420D3C4EAB8B247FDB72CA6E0A&_z=z, (accessed 28 October 2021)
Registration standards 2.8 The national boards are responsible for setting the registration standards, codes and guidelines describing the requirements and expectations of registered health practitioners and students in their respective fields of
practice.5
2.9 In addition to developing the five core registration standards, national boards can ‘endorse’ the registration of suitably qualified practitioners. An endorsement of registration recognises that a person has additional qualifications and expertise in an approved area of practice and/or for scheduled medicines.6
5 AHPRA, Consultation process of National Boards, July 2020.
6 AHPRA, Glossary, https://www.ahpra.gov.au/support/glossary.aspx#E, (accessed 22 October 2021).
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2.10 The registration standards for each profession are reviewed at least every five years or when a national board deems appropriate and necessary.7
2.11 Many submitters to this inquiry were supportive of the common registration standards but raised concerns about the registration standards for specific professions.8 For example, the Australian Psychological Society highlighted that there have been recent changes to the training accreditation pathways for psychologists, and said a review is required to reflect these changes.9
2.12 Any change to the registration standards for regulated professions requires approval from the Ministerial Council. When changes are proposed, the national board must undertake a consultation process, a regulatory impact assessment, and a patient health and safety impact assessment.10
Continuing professional development 2.13 Each regulated profession has requirements for the education, training and continuing professional development (CPD) practitioners must undertake to maintain their registration.
2.14 The committee heard there is limited access to CPD in rural and regional areas, and that the workload and costs of CPD are increasing.11 One submitter informed the committee:
At present to renew registration evidence of continuing professional development (CPD) gained over a three year cycle is needed. A doctor may need to accrue 150 credits over three years. AHPRA proposes that this should change to 50 credits per year. This is fine for metropolitan practitioners who have ready access to CPD close to home, but not so for remote practitioners. Travelling for a course that might take a doctor away for a week, in the current system might accrue 80 credits, but if in the
7 AHPRA, answers to written questions on notice (received 20 September 2021), p. 8.
8 See, for example, Australian Psychological Society (APS), Submission 5, p. 4;
Australian Acupuncture and Chinese Medicine Association (AACMA), Submission 3, p. 1; Australian College of Nursing (ACN), Submission 12, p. 2; Australian Nursing and Midwifery Federation (ANMF), Submission 25, p. 5; Royal Australasian College of Surgeons (RACS), Submission 30, p. 2; Australian Medical Association (AMA), Submission 7, p. 14; Dr John Quinn, Executive Director Surgical Affairs, RACS, Committee Hansard, 8 July 2021, p. 4.
9 APS, Submission 5, p. 4.
10 Section 25 of the National Law provides for the processes involved in making changes to
registration standards. See AHPRA, Procedures for the development of registration standards, codes and guidelines, June 2020; AHPRA, answers to written questions on notice (received 20 September 2021), p. 8.
11 See, for example, AMA, Submission 7, p. 3; Name withheld, Submission 45, p. 2; Health
Professionals Australia Reform Association, (HPARA) Submission 70, p. 3;
Medical Consumers Association (MCA), Submission 115: Attachment A, p. 7; Australian Association of Psychologists incorporated (AAPi), Submission 73, p. 4; Optometry Australia (OA), Submission 20, p. 1.
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proposed arrangement 30 excess credits can’t be carried forward for another year, this unfairly penalises rural and remote doctors.12
2.15 Several submitters also commented that CPD requirements for some health practitioners are excessive in comparison with other professions, such as the legal profession.13
2.16 For example, most registered practitioners are required to complete 20 hours per year of CPD, with psychologists required to do 30 hours and medical practitioners required to do 50 hours.14 The Medical Consumers Association submitted that:
Professional development requirements for psychologists in particular are wholly disproportionate to any possible benefits to their clients or themselves… NSW solicitors, by contrast, only need complete 10 CPD hours annually.15
Timeliness 2.17 The committee received evidence that there can be lengthy delays in the registration process, which may leave a practitioner without employment for a significant period of time while they wait to begin supervised or independent
practice.16
2.18 The Pharmacy Guild of Australia (the Guild) noted delays often occur over the summer period, which is a peak period of demand for community pharmacies. The Guild said these delays reduce the ability for community pharmacies to meet demand, particularly in regional and remote locations where the workforce is limited.17
12 Name withheld, Submission 45, p. 2.
13 See, for example, HPARA, Submission 70, p. 3; AMA, Submission 7, p. 3; MCA,
Submission 115, Attachment A, p. 7; Name withheld, Submission 45, p. 2. The CPD requirements of each national board are listed in the Registration Standards for each profession and published on each board’s website. These detail the number of credits, points or hours practitioners must complete each year. See AHPRA, Continuing Professional Development,
https://www.ahpra.gov.au/Registration/Continuing-Professional-Development.aspx, (accessed 8 November 2021).
14 AHPRA website, Continuing Professional Development,
https://www.ahpra.gov.au/Registration/Continuing-Professional-Development.aspx, (accessed 8 November 2021).
15 MCA, Submission 115: Attachment A, p. 7.
16 See, for example, PGA, Submission 21, p. 5; Ms Claire Bekema, Acting National Manager, Policy
and Regulation, PGA, Committee Hansard, 8 July 2021, p. 23; Ms Annie Butler, Federal Secretary, ANMF, Committee Hansard, 8 July 2021, p. 19; Name withheld, Submission 50, p. 3; Occupational Therapy Australia (OTA), Submission 27, p. 3; Confidential Submission 120, [p. 1].
17 PGA, Submission 21, p. 5; Ms Bekema, PGA, Committee Hansard, 8 July 2021, p. 23.
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2.19 The Australian Nursing and Midwifery Federation (ANMF) also commented that ‘unacceptable delays’ in the registration process cause significant difficulties, particularly for students and recent graduates trying to secure places in transition support programs, and for workplaces in managing staffing.18
2.20 AHPRA noted the following common reasons for delays in finalising a registration:
ï insufficient evidence or documentation; ï waiting on information from third parties; and ï waiting on board or committee approval.19
2.21 AHPRA also reported that in 2020-21, the median time to decide the application for registration was two days, the average was 17 days, and it took on average nine days to finalise a graduate’s registration.20
Re-registration 2.22 When health practitioners wish to re-enter the profession after a break from practising they are required to re-register with AHPRA. Each national board has different requirements for this process.
2.23 The committee received evidence that the re-registration process for qualified health practitioners is onerous and imposes a significant workload on the practitioner and their supervisor. This is a particular concern in female-dominated occupations where significant numbers leave the workforce for extended periods of time.21
2.24 Submitters and witnesses told the committee the requirements to re-enter the workforce act a disincentive, and this contributes to workplace shortages. The ANMF commented that:
A commonly required condition is that a member completes a refresher or re-entry program, even though there are very few programs available in Australia for nursing or midwifery refresher or re-entry… The [Nursing and Midwifery Board of Australia] therefore needs to review the re-entry policy to ensure that there are appropriate and achievable pathways that allow previously registered nurses and midwives to re-enter the professions.22
18 Ms Butler, ANMF, Committee Hansard, 8 July 2021, p. 19.
19 AHPRA, answers to written questions on notice (received 20 September 2021), p. 9.
20 AHPRA, answers to written questions on notice (received 20 September 2021), p. 9.
21 See, for example, OTA, Submission 27, p. 2; Queensland Nurses and Midwives’ Union (QNMU),
Submission 8, pp. 2-3; ANMF, Submission 25, p. 8; Associate Professor Carol McKinstry, President, OTA, Committee Hansard, 8 July 2021, p. 41.
22 ANMF, Submission 25, p. 8.
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2.25 Associate Professor Carol McKinstry, the President of Occupational Therapy Australia, told the committee the biggest barrier to re-entry is supervision:
While we think that, yes, supervision is important, it's that the person re-entering or wanting to re-register has to source supervision, so they are given, if you like, temporary or not full registration. Therefore, it's hard to find employment. It's a sort of a catch 22. Our profession is made up of women—over 90 per cent women—so we do have women coming in and out of the workforce. If they're absent for long periods, then they do need to go through this process. We just feel that it is a bit onerous at the moment and we'd like to streamline it a little bit, particularly to try and make it more attractive for people to re-enter the workforce.23
Student registration 2.26 Under the National Law, all students enrolled in an approved program of study or undertaking clinical training must be registered as a student with the respective national board. Registration is required for the duration of study or
training, and is organised on the student’s behalf by the education provider.24
2.27 Inquiry participants raised concerns about the inconsistency of requirements between universities; the role of universities in providing students with information about registration requirements; and the relevancy of courses to the registration standards.25
2.28 The Australian Psychological Society (APS) submitted that some universities do not allow students to commence their studies until registration is approved, whereas others allow students to start studying but they require registration before starting a placement. They also said that AHPRA’s inefficient registration processes can lead to delays for students in starting their studies and placements.26
2.29 Several submitters also commented on the need for universities and education providers to inform and educate students about registration requirements.27 For example, AHPRA’s Community Reference Group submitted that:
Universities need to balance teaching the ‘body of knowledge’ with the registration standards and requirements. Although exposure to the role of Aphra and the National Boards is part of the education program, work ready approaches mean registration needs to be understood and prepared
23 Associate Professor McKinstry, OTA, Committee Hansard, 8 July 2021, p. 41.
24 AHPRA, Submission 78, pp. 9-10.
25 See, for example, APS, Submission 5, p. 6; QNMU, Submission 8, p. 4; Australian College of Nurse
Practitioners (ACNP), Submission 13, p. 2; ANMF, Submission 25, p. 12; Universities Australia, Submission 26, p. 2.
26 APS, Submission 5, p. 6.
27 QNMU, Submission 8, p. 4; ACNP, Submission 13, p. 2; AHPRA, Submission 78, Attachment 2, p. 4.
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for in a way that means students understand and are ready for registration at the earliest time.28
2.30 The Australian College of Nurse Practitioners’ submission said education providers should focus on registration when they are developing courses. It reported that several courses fail to produce students who can satisfy the registration standards and therefore they are unable to commence practice.29
2.31 Similarly, the ANMF recommended student registration be brought into line with practitioner registration, including undergoing identity, criminal history and English language proficiency checks. This would avoid situations where students undertake a lengthy and costly course, only to discover their registration is not accepted or delayed due to an adverse disclosure in their application.30
2.32 Moreover, submitters suggested that student registration data, together with enrolment and retention numbers, could be very useful for national workforce planning, and for identifying programs that have high attrition rates.31
2.33 AHPRA informed the committee that an Education Provider Reference Group has recently been established to improve its engagement with education providers. This forum provides an opportunity for education providers to provide advice to AHPRA on developments in the implementation and operation of the National Scheme that relate to students and graduates.32
COVID-19 registration 2.34 In response to the COVID-19 pandemic, AHPRA established a pandemic response sub-register as a temporary measure. The sub-register enabled health practitioners who had held general or specialist registration in the past three
years to return to practice.33
2.35 For example, retired health practitioners who were properly qualified, competent and suitable were able to be listed on the pandemic sub-register to assist in the pandemic response.
2.36 In early April 2021, at the request of the Commonwealth Government, and with the support of all health ministers, AHPRA extended the sub-register for a further 12 months for retired nurses, doctors and other registered health practitioners. This also occurred for Aboriginal and Torres Strait Islander
28 AHPRA Community Reference Group, Submission 78: Attachment 2, p. 4.
29 ANCP, Submission 13, p. 2.
30 ANMF, Submission 25, p. 11
31 ANMF, Submission 25, p. 12; Universities Australia, Submission 26, p. 2.
32 AHPPRA, Submission 78, p. 10.
33 AHPRA, Submission 78, p. 18.
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health practitioners, medical practitioners, midwives, nurses and pharmacists.34
2.37 For other professions, such as diagnostic radiographers, physiotherapists and psychologists, the sub-register closed as planned on 19 April 2021.35
Supervised practice 2.38 A practitioner may be required to work under supervision as a condition of registration in some professions, and supervision may also be imposed as a condition on a practitioner as a result of a notification.36
2.39 Inquiry participants recognised that supervised practice is important to ensure practitioners are qualified and suitably skilled to perform their duties, however, they highlighted several issues with the current supervised practice arrangements. This included: the availability and funding of supervision; impact of supervision requirements on employment and workforce shortages; and the standards for supervision arrangements.37
Availability of supervisors 2.40 Submitters commented that it can be difficult to find a suitable supervisor, which is exacerbated in rural and regional areas, and it has flow-on effects for practitioners’ employment and for the health workforce as a whole.38
2.41 The Australian Acupuncture and Chinese Medicine Association submitted that practitioners in rural and remote areas find it difficult and prohibitively expensive to comply with the supervision requirements.39
2.42 Occupational Therapy Australia told the committee that experienced clinicians are often disinclined to supervise occupational therapists with whom they do not work directly.40
34 AHPRA and the national boards, Submission 78, p. 18-19.
35 AHPRA and the national boards, Submission 78, p. 19.
36 See also discussion from paragraph 3.131 in Chapter 3 on the challenges of supervised practice
when, as a result of notification process, it is imposed as a condition of practice.
37 See, for example, AACMA, Submission 3, p. 4; ANMF, Submission 25, p. 9; OTA, Submission 27, p. 3;
QNMU, Submission 8, p. 8; Australian and New Zealand College of Anaesthetists (ANZCA), Submission 34, p. 1; APS, Submission 5, p. 5; OA, Submission 20, p. 2; PGA, Submission 21, pp. 5-6; Ms Butler, ANMF, Committee Hansard, 8 July 2021, p. 20; Ms Rachel Phillips, Chair, Psychology Board of Australia, Committee Hansard, 22 September 2021, p. 49.
38 See, for example, AACMA, Submission 3, p. 4; ANMF, Submission 25, p. 9.
39 AACMA, Submission 3, p. 4.
40 Occupational Therapy Australia, Submission 27, p. 3.
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2.43 Similarly, the Australian Nursing and Midwifery Federation told the committee that ‘… supervision poses a major burden for our members and their employers everywhere’41 and that:
Some members who have been granted re-entry [to the workforce] to practice with supervision conditions have been told by health services that their service does not offer positions with a period of supervised practice.42
2.44 The Australian and New Zealand College of Anaesthetists also said there is no compensation for practitioners who act as supervisors, which can be a disincentive to taking on the role.43
Impact on the workforce 2.45 The difficulties practitioners report in obtaining a supervisor can create flow-on effects to workplace arrangements. Occupational Therapy Australia submitted that experienced therapists are often ‘disinclined’ to undertake
supervision requirements for a practitioner they do not already work with or know.44
2.46 In regards to supervision requirements, the Queensland Nurses and Midwives’ Union recommended that consideration be given to:
… ensuring the process is not unnecessarily difficult such that competent practitioners are dissuaded from participating as supervisors, and, potential supervisees are lost to the workforce due to an inability to fulfil the conditions applied.45
Administrative burden 2.47 Several submitters informed the committee that supervised practice is a difficult process and can cause delays for successful registration.46 For example, Optometry Australia described the current process as ‘difficult and
stressful’ to navigate, and that delays in the approval of a supervisor by the national board can negatively impact a practitioner’s future employment and career.47
2.48 This concern was also raised by the APS:
Long delays often occur for provisionally registered psychologists to become fully registered due to infrequent Board meetings and a backlog in case-loads. In addition, confusing administrative forms and stated ‘wait
41 ANMF, Submission 25, p. 9.
42 ANMF, Submission 25, p. 9.
43 ANZCA, Submission 34, p. 1
44 OTA, Submission 27, p. 3.
45 QNMU, Submission 8, p. 8.
46 See, for example, OA, Submission 20, p. 2; ANZCA, Submission 34, p. 1; APS, Submission 5, p. 5.
47 OA, Submission 20, p. 2.
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times’ being missed, contribute to further delays which can cause stress, frustration and financial impacts.48
2.49 Further issues in relation to supervision are discussed in the next chapter.
Review of supervised practice requirements 2.50 AHPRA told the committee that 13 national boards (excluding pharmacy and psychology) are finalising a supervised practice framework to enable a consistent, responsive and risk-based approach to supervised practice.49
2.51 The proposed framework provides four levels of supervised practice, but not all levels are to be used depending on the purpose of the supervised practice. This includes:
ï direct supervision; ï indirect supervision with a supervisor physically present at the workplace; ï indirect supervision with a supervisor accessible by phone or other means; and
ï remote supervision, where the supervisor is not present at the workplace.50
Overseas-qualified health practitioners 2.52 The national boards are responsible for assessing the eligibility and suitability of overseas-trained health professionals seeking registration under the National Scheme. To obtain registration, practitioners must be assessed as
having qualifications and experience substantially equivalent to a board-approved qualification, and meet the core registration standards for that profession.51
2.53 Assessment against the core registration standards may be varied to reflect the context of applications, for example, by conducting international criminal history checks and English language proficiency tests.52
2.54 The committee received a breadth of evidence regarding overseas-trained health professionals (also known as international medical graduates or ‘IMGs’). The issues raised included the impact on workforce shortages, timeliness and duplication of the registration process, and English language requirements.
48 APS, Submission 5, p. 5.
49 AHPRA and the national boards, Submission 78, p. 6. AHPRA’s submission notes that the
Pharmacy and Psychology Boards did not participate as they have long-standing supervised practice frameworks developed to address profession-specific needs, including the role supervisors play in facilitating safe practice of psychology and the legal obligations of pharmacists set out in state and territory medicines and poisons legislation and pharmacy premises legislation.
50 AHPRA and the national boards, Submission 78, p. 6.
51 AHPRA and the national boards, Submission 78, p. 9.
52 AHPRA and the national boards, Submission 78, p. 9.
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2.55 These issues were also raised between 2010 and 2012, when the House of Representatives Standing Committee on Health and Ageing inquired into the registration processes and supports for overseas-trained doctors. That committee’s final report made 45 recommendations, and made the following observation:
… it is clear that whilst IMGs generally have very strong community support, they do not always receive the same level of support from the institutions and agencies that accredit and register them.
… it is my sincere hope that the report’s recommendations will help to resolve the administrative difficulties faced by many IMGs, and ensure that those wishing to practise medicine and call Australia home in future may do so with certainty and clarity of what is expected of them.53
Workforce shortages 2.56 Many submitters and witnesses commented on workforce shortages in their professions, noting that these shortages are particularly acute in rural and regional areas.54
2.57 Occupational Therapy Australia (OTA) commented that more allied health providers are recruiting practitioners from overseas, but the costs involved can be prohibitive (estimated at $20 000 in visa application fees, administration, and training and supervision costs per recruit).55
2.58 A similar concern was echoed by the Pharmacy Guild of Australia. It said that international pharmacists are critical to addressing shortages, especially in regional, rural and remote locations. However, the Guild said current visa classes are only short term, and they are an expensive way to address long-term staffing needs.56
2.59 Other submitters noted shortages within specialisations. The Royal Australian and New Zealand College of Psychiatrists (RANZCP) explained that the National Medical Workforce Strategy intends to steer away from a reliance on IMGs. However, RANZCP is concerned there is an undersupply of psychiatrists and significant challenges in recruiting and retaining practitioners, particularly in rural and remote areas.57
53 House of Representatives Standing Committee on Health and Ageing, Lost in the Labyrinth: Report
on the inquiry into registration processes and support for overseas trained doctors, March 2012, pp. ix and xii.
54 See, for example, OTA, Submission 27, p. 2; PGA, Submission 21, p. 6; Royal Australian and New
Zealand College of Psychiatrists (RANZP), Submission 28, p. 3; MCA, Submission 115, p. 7; Ms Butler, ANMF, Committee Hansard, 8 July 2021, p. 20.
55 OTA, Submission 27, p. 3.
56 PGA, Submission 21, p. 6.
57 RANZP, Submission 28, p. 3.
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2.60 In light of these concerns, RANZCP suggested AHPRA needs to have greater awareness of the current workforce shortages when considering additional requirements for international medical graduates training.58
Timeliness and duplication of registration process 2.61 Inquiry participants commented on the impacts of onerous and lengthy registration processes, and the duplication of prerequisites that overseas-qualified health professionals are required to meet in order to
practice in Australia.59
2.62 OTA said the registration process for IMGs is long and laborious, and working during the waiting period is not permitted.60 Similarly,
Associate Professor Vinay Lakra, President of the Royal Australian and New Zealand College of Psychiatrists told the committee:
… the number of times AHPRA changes the forms without us even knowing about it! You fill in a form and then you realise that, actually, that's an old form; that form has changed. These are small, little things, which then, of course, add delay.61
2.63 The Australian Psychological Society (APS) noted that migrants’ qualifications have to be assessed twice—once by the Department of Home Affairs and again by AHPRA for registration. APS said that this is an unnecessary duplication, and leads to delays, increased costs and stress for the practitioners.62
2.64 The OTA also commented on this issue, submitting that there are ‘multiple hoops’ involved in IMGs obtaining registration in Australia, including a skills assessment, resubmitting paperwork and obtaining a supervisor’s agreement—all for only ‘limited registration’.63
2.65 To improve these processes, the OTA suggested embedding the practice introduced during COVID-19 that permitted the electronic lodgement of applications and documents and the provision of clear, consistent and flexible guidance about requirements for the certification of documents.64
58 RANZP, Submission 28, p. 3.
59 See, for example, OTA, Submission 27, p. 3; APS, Submission 5, pp. 5-6; Associate Professor
Vinay Lakra, President, RANZCP, Committee Hansard, 8 July 2021, p. 10; Confidential Submission 110, [p. 1].
60 OTA, Submission 27, p. 3.
61 Associate Professor Lakra, RANZCP, Committee Hansard, 8 July 2021, p. 10.
62 APS, Submission 5, pp. 5-6.
63 OTA, Submission 27, p. 4.
64 OTA, Submission 27, pp. 3-5.
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English language requirements 2.66 A migrant whose primary language is not English, and is not from one of six ‘recognised’ countries, needs to take a language test to demonstrate they meet the English language standard required for registration.65
2.67 Inquiry participants noted that there is a great deal of confusion about the English language requirements, as well as a lack of consistency between the regulated professions.66
2.68 For example, the Queensland Nurses and Midwives’ Union submitted that the current English standards are inconsistent and have several deficiencies, including:
ï the lack of health-specific language testing; ï inconsistency between the nursing and midwifery board requirements; and ï the inability of the national board to exercise discretion in determining the competency of practitioners’ language skills.67
2.69 The committee also received evidence that the current English requirements may be perceived as discriminatory and do not recognise practical experience in English-speaking countries.68
2.70 Amnesty International said the list of recognised countries does not include countries where the level of English is high, such as Sierra Leone, in comparison with some of the recognised countries, such as South Africa.69 Refugees, Survivors and Ex-Detainees (RISE) also said that the language test does not provide the intended assurance of English language competency.70
2.71 AHPRA informed the committee that the national boards have commenced a review of the English language requirements. The proposed revisions to the English registration standards were expected to be available for public consultation during the last quarter of 2021.71
65 The six recognised countries are: Australia, Canada, New Zealand, Republic of Ireland,
South Africa, United Kingdom and the United States of America. See: AHPRA, Registration Standard: English Language Skills, 1 July 2015, p. 5.
66 See, for example, QNMU, Submission 8, p. 3; Ms Butler, ANMF, Committee Hansard, 8 July 2020,
p. 20.
67 QNMU, Submission 8, p. 5.
68 See, for example, Amnesty International, Submission 15, pp. 4-6; RISE, Submission 22, pp. 1-2.
69 Amnesty International, Submission 15, p. 4.
70 RISE, Submission 22, pp. 1-2.
71 Answers to written questions on notice, received from Australian Health Practitioner Regulation
Agency (AHPRA), 20 September 2021, p. 9.
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Specialist registration 2.72 During the course of the inquiry, the committee received evidence about regulatory gaps with the categories of specialist registration, the difficulties of regulating across different professions, and within areas of practice.72
2.73 Specialist registrations apply in the dentistry, medicine and podiatry professions. ‘Specialist’ is a type of registration granted to practitioners who, in addition to the standard registration requirements for their profession, meet specialist eligibility requirements in one of the categories approved by the Ministerial Council.73
Concerns about the cosmetic surgery industry 2.74 Currently the title of ‘specialist plastic surgeon’ is recognised as a specialty practice within medicine, whereas ‘cosmetic surgeon’ is not, and therefore there are no additional registration requirements for medical practitioners who
use this title.74
2.75 Concerns about the cosmetic surgery industry received significant public attention due to recent media reports. Following these reports the committee received a number of confidential submissions from patients of the cosmetic surgery industry as well as public submissions from former employees of cosmetic surgery practices.75 The committee also held an in camera hearing and heard from individuals affected by the cosmetic surgery industry and AHPRA representatives.
2.76 The committee heard concerns that patients have been ‘misled’ by the cosmetic surgery industry to believe that the medical practitioners that perform cosmetic surgery are registered surgical specialists under the National Scheme.76 The committee heard in camera, that patients did not understand the different registration requirements, or lack thereof, between a plastic surgeon and a cosmetic surgeon.
2.77 The committee also heard specific concerns about the conduct of medical
72 See, for example, Mr Patrick Tansley, President, Australasian College of Cosmetic Surgery (ACCS),
Proof Committee Hansard, 22 September 2021, pp. 2-7; Dr Robert Sheen, President, Australasian Society of Aesthetic Plastic Surgeons (ASAPS), Proof Committee Hansard, 22 September 2021, pp. 1-7; ACCS, Submission 126; ASAPS, Submission 71.
73 AHPRA, Fact Sheet: Registration Types, April 2010, p. 1; Specialist registrations are different to
protected titles. Protected titles are the specific titles of health practitioners registered under the National Law, such as ‘registered nurse’ and ‘enrolled nurse’. In effect, ‘specialist’ is a higher level of a specific protected title, such as a ‘paediatric dentist’ who is a specialised ‘dentist’.
74 AHPRA, Fact Sheet: Registration Types, April 2010, p. 1.
75 Confidential, Submission 140; Confidential, Submission 141; Mr Justine Nixon, Submission 132;
Ms Lauren Hewish, Submission 133.
76 ASAPS, Submission 71, p. 2.
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practitioners performing cosmetic surgery, including poor infection control practices, dangerous working hours, improper advertising and promotion, and breaches of patient confidentiality.77
2.78 AHPRA told the committee that currently under the law they cannot stop a medical practitioner calling themselves a cosmetic surgeon, but they can look at concerns about the conduct of those people:
… if you are a patient who has received care from a registered medical practitioner which has not met the required standards, or you have concerns about that care, you can raise that concern with us, whether that person calls themselves a cosmetic surgeon or a plastic surgeon …78
2.79 Over a three year period (1 July 2018 to 30 June 2021), AHPRA received 16 226 notifications about medical practitioners, of which AHPRA identified 313 notifications relating to 183 practitioners that concerned ‘botched surgeries’ or a surgical outcome with a complication or resulting in injury. Of those notifications that specifically concerned cosmetic procedures, 52 per cent related to medical practitioners who are registered in a surgical specialty (mostly specialist plastic surgeons).79
2.80 During an in camera hearing, AHPRA acknowledged that recent media reports highlighted the significant issues in the cosmetic sector and that its complaints data is not providing AHPRA with a comprehensive overview of these issues. 80
Regulating the use of the title ‘cosmetic surgeon’ 2.81 The Australasian Society of Aesthetic and Plastic Surgeons (ASAPS) said AHPRA must address ‘the misleading and dangerous use of the unregulated title “Cosmetic Surgeon” as it implies it is a specialist registration.’81 ASAPS
said that 81 per cent of Australians believe that if a practitioner uses this title then they are a registered specialist surgeon.82
2.82 ASAPS also suggested that AHPRA has not done enough to address concerns about medical practitioners performing cosmetic surgery within the scope of the existing legislation. Specifically, that the National Law already prohibits a person from using the title ‘specialist health practitioner’.83
77 Operation Redress, Submission 76, pp. 4-6; Mr Justin Nixon, Submission 132, [p. 2-4]; Ms Lauren
Hewish, Submission 133, pp. 1-8; Confidential, Submission 140; Confidential, Submission 141.
78 Mr Fletcher, CEO, AHPRA, Committee Hansard, 22 September 2021, p. 41.
79 AHPRA, answers to questions on notice, 22 September 2021 (received 11 October 2021), pp. 5-6.
80 In Camera Committee Hansard.
81 ASAPS, Submission 71, p. 1.
82 ASAPS, Submission 71, p. 3.
83 ASAPS, Submission 71, Supplementary Submission, p. 3.
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2.83 The Australasian College of Cosmetic Surgery and Medicine (ACCSM) noted that the title ‘cosmetic surgery’ is not able to be recognised as a medical speciality under current regulations because any new speciality is required to reduce the overall burden of disease, ‘which cosmetic surgery obviously does not’.84
2.84 The ACCSM told the committee that it does not support registering the specialist title of ‘surgeon’ or ‘cosmetic surgeon’ in isolation, without linkage to competency-based accreditation in cosmetic surgery, although it agreed that the lack of regulation is unsafe and that ‘untrained doctors representing themselves as cosmetic surgeons is confusing and dangerous for patients’.85
2.85 Instead, the ACCSM proposed a competency-based National Accreditation Standard for cosmetic surgery. This would require any medical practitioner, including specialist plastic surgeons, performing cosmetic surgery to meet the accreditation standard and be recorded on a public register, which AHPRA would maintain.86 Dr Daniel Fleming, past president of the ACCSM, told the committee:
… the best way—to protect patients is to have an accreditation system specifically for cosmetic surgery for all doctors who perform it, whether they're plastic surgeons, cosmetic surgeons or from any other group. Critically, this system will involve that doctors are trained in basic surgical skills... It's very important; they know how to operate, but further they need specific cosmetic surgery training, because that does not exist at the moment.87
Proposed law reform and review of the industry 2.86 As a part of the consideration of the ‘Tranche 2’ reforms to the National Law, it is proposed to restrict the use of the title ‘surgeon’ to provide better information for the public about the qualifications of surgeons. This proposal
is subject to further consultation and is expected to proceed separately to the rest of the Tranche 2 reform package.88
2.87 The communiqué from the COAG Health Council89 in November 2019 about these reforms states:
The use of the title “surgeon”, including by way of “cosmetic surgeon”, by medical practitioners, non-specialist surgeons or those without other appropriate specific training can cause confusion among members of the
84 Mr Tansley, ACCSM, Committee Hansard, 22 September 2021, p. 2.
85 Mr Tansley, ACCSM, Committee Hansard, 22 September 2021, p. 2.
86 ACCSM, Submission 126, p. 4.
87 Dr Daniel Fleming, Past President, ACCSM, Committee Hansard, 22 September 2021, p. 5.
88 Health Chief Executives Forum, Submission 4, p. 8.
89 The former COAG Health Council is now known as the Health Council.
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public. Ministers agreed that further consultation should be undertaken on which medical practitioners should be able to use the title “surgeon”.90
2.88 On 30 November 2021, AHPRA and the Medical Board of Australia announced an external review of the cosmetic industry, including mechanisms to strengthen the regulation of practitioners in the industry. The review will be led by the Queensland Health Ombudsman and panel members include the National Health Practitioner Ombudsman, the Chief Medical Officer for the Australian Commission on Safety and Quality in Health Care, and the Chief Executive Officer of CHOICE. The review is expected to report in mid-2022.91
Concerns about podiatric surgery 2.89 The Royal Australasian College of Surgeons (RACS) also voiced concerns about the circumstances where a non-medical profession overlaps into the area of surgical practice. RACS noted that podiatric surgery has been recognised as
a speciality of podiatry, but it is concerned that the use of this term could be misleading as ‘podiatrists are not doctors and do not have a medical degree’.92
2.90 RACS further highlighted that the accrediting authority for podiatric surgery, training and education is not the Medical Council of Australia, as it is for all other surgical specialities, but rather it is the non-medical Podiatry Accreditation Committee. RACS said this causes confusion for patients and can lead to poorer outcomes in comparison with work by specialist orthopaedic surgeons.93
Areas of practice endorsement 2.91 Another sub-category of registered practice, similar to a specialist registration, is an area of practice endorsement (AoPE). It identifies practitioners who have completed an approved postgraduate qualification and supervised training in
an area of practice and/or for scheduled medicines.94
2.92 Practitioners with an AoPE can use the title associated with that area of practice. For example, in the field of psychology, a practitioner can be endorsed to practice as a forensic psychologist or as a health psychologist.95
90 COAG Health Council, Communiqué, 31 October - 1 November 2019, p. 1.
91 AHPRA and the Medical Board announces review of cosmetic surgery checks and balances,
https://www.ahpra.gov.au/News/2021-11-24-cosmetic-review.aspx (accessed 13 January 2022).
92 RACS, Submission 30, p. 3; Dr Quinn, RACS, Committee Hansard, 8 July 2021, p. 4.
93 RACS, Submission 30, p. 3; Dr Quinn, RACS, Committee Hansard, 8 July 2021, p. 4.
94 AHPRA, Fact Sheet: Endorsement of Registration, 20 April 2021 p. 1; AHPRA, Psychology Board of
Australia: Endorsement, 2 December 2019, https://www.psychologyboard.gov.au/Endorsement.aspx (accessed 22 October 2021).
95 AHPRA, Psychology Board: Endorsement, 2 December 2019,
https://www.psychologyboard.gov.au/Endorsement.aspx (accessed 22 October 2021).
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2.93 The APS stated that greater awareness, clarity and education are required about the use of AoPEs, especially for the ‘clinical’ area of practice endorsement in psychology. The APS submitted that it is confusing for patients when the phrase ‘clinical’ is used to describe a psychologist working in a clinical setting, rather than how it is meant under the area of practice endorsement.96
Unregulated professions 2.94 There are several professions not regulated by AHPRA, such as social work, audiology, and aged care and personal care work. As practitioners in these fields are unregulated, there is no standard or code to hold them to account,
and no requirement for a minimum level of qualifications.97
2.95 For a new profession to be included in the National Registration and Accreditation Scheme (NRAS), approval is required by the Ministerial Council and is subject to a formal regulatory impact assessment.98
2.96 The committee received evidence, particularly from those in the social work and aged care sectors, that these unregulated professions require oversight and should be regulated.99
2.97 The Australian Association of Social Workers told the committee that anyone can call themselves a social worker regardless of whether they have any training or qualifications. It said this poses a significant public risk as social workers ‘support people across a range of issues including mental health, family violence, child abuse, elder abuse, disability, housing, poverty, alcohol and other drugs’.100
2.98 Similarly, the Australian College of Nursing (ACN) advocates for all health care and personal care workers to be regulated to bolster public trust in the health and aged care systems.101 ACN estimated that 70 per cent of aged care staff may be unregulated and said mechanisms are required to ensure the safe, ethical and professional conduct of these workers who are ‘… often involved with the most intimate aspects of patient care, such as bathing, toileting and putting patients to bed …’102
96 APS, Submission 5, p. 4.
97 See for example QNMU, Submission 8, p. 7; ACN, Submission 12, pp. 1 and 5; ANMF, Submission 25,
p. 20; Australian Association of Social Workers (AASW), Submission 6.
98 COAG Health Council, Communiqué, 11 September 2018, p. 1.
99 See, for example, AASW, Submission 6, pp. 3-5; ACN, Submission 12; ANMF, Submission 25, p. 20.
100 AASW, Submission 6, pp. 3-5.
101 ACN, Submission 12, p. 1.
102 ACN, Submission 12, p. 5.
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2.99 The Australian Nursing and Midwifery Federation expressed similar concerns:
Our members have long expressed concern that care workers, particularly but not only those employed in nursing homes, are not regulated. These concerns, raised by registered and enrolled nurses and by care workers themselves, relate to the current lack of consistency across educational preparation requirements and competence, and even a minimum English language standard.103
2.100 AHPRA noted that approval for new professions to be considered in the NRAS is a matter for health ministers, not AHPRA or the national boards.104
Committee view 2.101 The committee acknowledges the importance of the registration process and registration standards to ensure that health practitioners are fully qualified and suitable to practice under a protected title.
2.102 The committee notes that across the breadth of evidence received, inquiry participants were in general agreement and supported the five common registrations standards. The committee recognises that there is a range of views within each profession about additional registration standards—such as specialists and areas of practice endorsement—and much of the evidence received provides ideas on how to improve the standards in specific professions.
2.103 However it is apparent that some practitioners in rural and regional areas are experiencing real difficulties meeting the required standards for continuing professional development (CPD) and the committee encourages AHPRA to examine mechanisms to assist these practitioners to undertake CPD. The CPD requirements should not be unduly onerous, and must take into account accessibility and workforce issues experienced in rural and regional areas.
2.104 The committee echoes the views of many inquiry participants that any proposed changes to the registration standards should focus on public safety and be mindful of the administrative burden for practitioners.
2.105 The timeliness of the registration process for both Australian-qualified and overseas-qualified health practitioners is clearly an issue. The committee encourages AHPRA and the national boards to consider ways to reduce the time taken to approve registrations.
2.106 In relation to student registration, the committee is concerned that there could be situations where individuals will only learn that they are ineligible for registration or experience significant delays in their registration after they have completed a course of study or training program.
103 ANMF, Submission 25, p. 20.
104 AHPRA, answers to written questions on notice (received 20 September 2021), p. 9.
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2.107 The committee encourages AHPRA and the national boards to engage broadly with education providers, including through its Education Provider Reference Group, on practical ways to support students understand and prepare for the registration process and requirements. This could include consideration for a preliminary registration process.
2.108 The committee is pleased that the English language requirements for overseas-qualified health practitioners is currently being reviewed and will be open for public consultation.
2.109 The committee was gravely concerned to hear about the issues arising from the cosmetic surgery industry. While the committee welcomes AHPRA’s review of the industry, the committee is concerned that AHPRA, until recently, did not act on multiple complaints against some practitioners within this sector. The committee is hopeful that the inquiry announced by AHPRA will assist in identifying and addressing these issues.
2.110 The committee is also particularly concerned that the title ‘surgeon’ is currently unregulated, and practitioners using this title may not have any qualifications or experience in surgery or the specialised fields of surgery. The committee considers this to be a substantial risk to public safety.
Recommendation 1
2.111 The committee recommends that proposed reforms to the National Law to regulate the use of the title ‘surgeon’ undergo broad consultation and be progressed as a priority by the Ministerial Council.
2.112 The committee is also concerned about the existing barriers to re-enter the workforce following a period out of practice, for example, to raise a family. The committee notes that this is of particular concern in female-dominated professions such as nursing and midwifery. In the committee’s view, the approach taken by AHPRA and the national boards to create a pandemic response sub-register provides a potential model for re-registration more broadly.
Recommendation 2
2.113 The committee recommends that AHPRA and the national boards introduce a more flexible re-registration model across professions that would enable health practitioners to more easily re-enter the workforce after a period of absence.
2.114 Evidence presented to the committee on a number of unregulated professions, such as social workers, aged care workers and personal care workers, requires further consideration. The committee acknowledges that any regulatory requirements requires careful consideration of the workforce issues specific to
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those professions, including the potential impact on the workforce, and the level of training and supports required.
Recommendation 3
2.115 The committee considers there is a substantial case for regulation of currently unregulated professions including social workers, aged care workers and personal care workers and recommends the Ministerial Council consider whether these professions should be included in the National Regulation and Accreditation Scheme.
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Chapter 3 Notifications
3.1 Notifications provide an important mechanism for identifying and addressing potential risks posed to the public by the conduct of registered health practitioners. How notifications are handled, however, is equally important to ensure that parties are provided a fair, transparent, empathetic and accountable process.
3.2 This chapter looks at a range of issues arising with the notifications process, including confusion about where to take concerns, issues with timeliness and assessment of notifications, and concerns around clinical input, procedural fairness, and notification outcomes. The next chapter explores the significant impact of the notifications process, and of particular kinds of notifications.
Handling notifications
Overview of the process 3.3 Notifications received by AHPRA must be assessed, and if found to be within the remit of the National Law, referred to the applicable national board.1 The board has 60 days to decide whether or not the notification is within its remit.2
As discussed in Chapter 1, notifications concern the conduct, health and performance of registered health practitioners.3
3.4 After reviewing a notification, the board can decide to take no further action, or take a range of actions including taking interim and immediate action (such as suspending a health practitioner’s registration); starting an investigation into the practitioner; or requiring a health or performance assessment.4
3.5 Where the board decides to initiate an investigation, an investigator is appointed, usually an AHPRA employee.5 There are no statutory timeframes
1 Health Practitioner Regulation National Law Act 2009 (National Law), s 148(1).
2 Australian Health Practitioner Regulation Agency (AHPRA), Regulatory Guide, p. 15.
3 AHPRA, What we do, https://www.ahpra.gov.au/About-Ahpra/What-We-Do.aspx (accessed
8 October 2021). Notifications can be mandatory (under s 141) or they may be made voluntarily on a number of identified grounds in s 144. Grounds include that the practitioner’s professional conduct is of a lesser standard than might be reasonably expected of them; that they are not suitable to hold registration; that they have an impairment; that they have contravened the National Law or a condition of their registration. See further AHPRA, Regulatory Guide, pp. 11-13.
4 AHPRA, Regulatory Guide, pp. 15-16. Other actions include cautions, imposing conditions,
requiring a health or performance assessment, and referring the practitioner to a hearing by a health panel or performance and professional standards panel.
5 National Law, s. 160(2); AHPRA, Regulatory Guide, p. 30.
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for the conduct of investigations; however, there is a requirement for written progress updates to notifiers and respondents at least every three months.6
3.6 Investigations are to be conducted in a procedurally fair way, that is, the health practitioner under investigation should be given the opportunity to respond to allegations against them.7
3.7 At the conclusion of an investigation, the investigator provides the board with a report which includes their findings and recommendations for action. The board then considers whether to take action and what action it will take.8
3.8 Action can include referring the matter to another health complaints body, to a health or professional performance and standards panel, or to a responsible tribunal. Some notifications must be referred to tribunal where the conduct potentially constitutes professional misconduct.9
3.9 The board also has a range of actions open to it, including cautioning a health practitioner or imposing conditions on their registration.10
Notifications in co-regulatory jurisdictions 3.10 As discussed in Chapter 1, in New South Wales (NSW) and Queensland, responsibility for handling notifications is shared with state-based health complaints bodies. In those states, notifications are referred to as complaints.
3.11 In NSW, notifications are managed by the NSW Health Care Complaints Commission (HCCC) and the 15 health professional councils in that state. In Queensland, the Office of the Health Ombudsman (OHO) receives all complaints regarding registered health practitioners and decides whether to keep the complaint or refer it to a national board and AHPRA to manage.11
3.12 Almost half of Australia’s registered health practitioners are in Queensland and NSW.12 Over half (55 per cent) of all notifications made about registered health practitioners are received by either the OHO or the HCCC. In 2020-21, there were 3 659 complaints about health practitioners made to the OHO in
6 National Law, s. 161(3).
7 AHPRA, Regulatory Guide, p. 33.
8 AHPRA, Regulatory Guide, p. 34.
9 AHPRA, Regulatory Guide, p. 44.
10 AHPRA, Regulatory Guide, p. 35.
11 AHPRA and the national boards, Submission 78, pp. 4-5. See also, AHPRA, NSW and Qld,
https://www.ahpra.gov.au/Notifications/Further-information/NSW-and-Qld.aspx (accessed 3 November 2021).
12 AHPRA, Annual Report 2019-20, p. ii. The annual report notes that, of the 801 659 registered health
practitioners in Australia, 20.2 per cent (161,813) are in Queensland and 28.4 per cent (227, 530) are in NSW.
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Queensland and 8 702 complaints made to the NSW HCCC.13 AHPRA received 10 147 notifications in the same year.14
Where to complain
Confusion about where to take concerns 3.13 The committee heard that it can be confusing for the public navigating where to take their concerns.15 Ms Patricia Hall, a member of AHPRA’s Community Reference Group, told the committee:
It's a big ask to expect a consumer, who may in fact be harmed at the point of entry, to make a distinction between registered and unregistered practitioners, other … registered health personnel, and between the multiple entry points that they need to go through, without a navigator, without support.16
3.14 A particular issue is whether a person should make a ‘notification’ about a registered health practitioner, as distinct from a ‘complaint’, which can include a broader range of concerns about a person’s experience with a health service, and may warrant remedies such as an apology, refund or compensation.17 While AHPRA and the national boards handle notifications, complaints are dealt with by health complaints entities in the states and territories.18
3.15 AHPRA CEO, Mr Martin Fletcher, noted that in dealing with notifications, AHPRA’s role as a professional standards regulator is limited to looking at behaviour or clinical performance that gives rise to a concern about patient
13 NSW Health Care Complaints Commission (HCCC), answers to written questions on notice
(received 20 September 2021), p. 1; Office of the Health Ombudsman Queensland (OHO), answers to written questions on notice (received 20 September 2021), p. 1.
14 AHPRA and the national boards, answers to written questions on notice (received 20 September
2021), p.1.
15 AHPRA and the national boards, Submission 78, Attachment 2, Community Reference Group
Submission, p. 6; Mr Andrew Brown, Health Ombudsman, Office of the Health Ombudsman Queensland (OHO), Committee Hansard, 22 September 2021, p. 9.
16 Ms Patricia Hall, Member, AHPRA’s Community Reference Group, Committee Hansard,
22 September 2021, pp. 50-51.
17 AHPRA and the national boards, Submission 78, p. 5; AHPRA Community Reference Group,
Submission 78, Attachment 2, p. 6; Mr Andrew Brown, Health Ombudsman, Office of the Health Ombudsman Queensland (OHO), Committee Hansard, 22 September 2021, p. 9; MIGA, Submission 17, p. 6. See also AHPRA, Concerned about a health practitioner? https://www.ahpra.gov.au/Notificati ons/Concerned-about-a-health-practitioner.aspx (ac cessed 8 November 2021).
18 Health complaints entities include the ACT Human Rights Commission, the NSW Health Care
and Complaints Commission; the Northern Territory Health and Community Services Complaints Commission; the Queensland Office of the Health Ombudsman; the South Australian Health and Community Services Complaints Commission; the Tasmanian Health Complaints Commission; the Victorian Health Complaints Commission; and the Western Australian Health and Disability Services Complaints Office. See AHPRA, Annual Report 2019-20, p. 14.
36
safety.19 Given this role, it was acknowledged that for consumers, the notifications process may not meet their needs or expectations:
… consumers experience greater satisfaction with a complaints process when it involves resolving the complaint (e.g. through explanation or apology). Complaint resolution is the fundamental work of health complaints entities and local health practices rather than the regulator.20
Complaints that should be raised elsewhere 3.16 The committee heard that AHPRA and the regulatory bodies in NSW and Queensland receive a large number of matters that should have been raised elsewhere, including matters that should be dealt with by state-based health
complaint entities.21
3.17 The Queensland Health Ombudsman, Mr Andrew Brown, noted that more than half the matters received do not relate to registered health practitioners:
We get just under 10,000 complaints a year. Only 40 per cent of those relate to registered practitioners. Sixty per cent are other matters. Sometimes it's difficult for a consumer to unpick where they should go: are they complaining about a registered practitioner, or are they complaining about a service?22
3.18 Both the NSW Health Complaints Commissioner and Queensland Health Ombudsman told the committee that their offices operate as a ‘single front door’ for health service complaints and that a key part of their role is getting matters to the right place as quickly as possible.23
3.19 Similarly, the CEO of AHPRA, Mr Martin Fletcher, told the committee:
We've put a very big emphasis, when people first contact us, on talking to them about what they're looking for in raising a concern with us and then guiding them to the right place.24
Education and awareness 3.20 The AHPRA Community Reference Group noted that patients and carers need to understand their right to safe and competent health care and what steps
19 Mr Martin Fletcher, CEO, AHPRA, Committee Hansard, 22 September 2021, p. 39
20 AHPRA and the national boards, Submission 78, p. 5.
21 See, for example, Mr Andrew Brown, Health Ombudsman, OHO, Committee Hansard,
22 September 2021, p. 9.
22 Mr Andrew Brown, Health Ombudsman, OHO, Committee Hansard, 22 September 2021, p. 9.
23 Ms Sue Dawson, Commissioner, NSW Health Care Complaints Commission (HCCC), Committee
Hansard, 22 September 2021, p. 12; Mr Andrew Brown, Health Ombudsman, OHO, Committee Hansard, 22 September 2021, p. 9.
24 Mr Martin Fletcher, CEO, AHPRA, Committee Hansard, 22 September 2021, p. 39.
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they can take to pursue their concerns through the different complaints and notifications pathways.25
3.21 The committee heard that ‘more is required from a variety of sources’ to explain the role of AHPRA, the national boards, and health complaints entities respectively.26
3.22 The AHPRA Community Reference Group suggested that further education and awareness campaigns should be pursued at the ‘grass roots level’ in relation to AHPRA’s role and the role of other complaint bodies. It noted that:
… education must occur in a way that does not separate the National Scheme from other health complaints schemes (like state-based health complaints commissioners), but which provides patients and carers with a seamless entry and referral process.27
3.23 Mr Chris Leahy, Director of eHealth and Medication Safety at the Australian Commission on Safety and Quality in Health Care, told the inquiry his organisation is working with AHPRA to map out the existing pathways for consumer complaints, with the goal of simplifying the process.28
Issues with co-regulation 3.24 The committee heard there is added confusion and double-handling involved in notifications in the co-regulatory jurisdictions. Witnesses noted that the different processes of regulatory bodies are not well understood, cause
duplication in handling, and have resulted in delays.29
3.25 In Queensland, for example, all matters are referred to AHPRA unless they are considered sufficiently ‘serious’. In 2019-20, the OHO referred 2 707 complaints to AHPRA, most (70 per cent) in the first seven days after receipt. The Queensland Health Ombudsman, Mr Andrew Brown, told the committee:
We work as hard as we can to stop the duplication of effort, and we're quite successful in that space. But it does make it complicated and a bit confusing for practitioners and consumers as well when they complain to
25 AHPRA Community Reference Group, Submission 78, Attachment 2, p. 6.
26 MIGA, Submission 17, p. 7. See also discussion in AHPRA Community Reference Group,
Submission 78, Attachment 2, p. 6.
27 AHPRA Community Reference Group, Submission 78, Attachment 2, pp. 6-7.
28 Mr Chris Leahy, Director, eHealth and Medication Safety, Australian Commission on Safety and
Quality in Health Care, Committee Hansard, 22 September 2021, p. 20.
29 Dr John Quinn, Executive Director Surgical Affairs, Royal Australasian College of Surgeons
(RACS), Committee Hansard, 8 July 2021, p. 5; Associate Professor Vinay Lakra, President, Royal Australian and New Zealand College of Psychiatrists (RANZCP), Committee Hansard, 8 July 2021, p. 5; Dr Michael Wright, Chair, Expert Committee—Funding and Health System Reform, Royal Australian College of General Practitioners (RACGP), Committee Hansard, 8 July 2021, p. 6.
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us and then, within seven days, hear that we've referred the matter to another agency.30
3.26 Several inquiry participants suggested that there should be uniformity across all of the states, and that the handling of notifications should be entirely standardised and national.31 Associate Professor Vinay Lakra, President of the Royal Australian and New Zealand College of Psychiatrists (RANZCP) explained why:
… the person who has complained does not know where they need to go and the practitioner also does not understand what the obligation of the different systems are, so it does make sense to have one system across the nation. We also know that there is a small number of practitioners who work across different states, and it also makes sense for them to be aware of one system across the nation rather than having more than one regulatory system.32
3.27 The committee heard that in Queensland, in response to the recommendations of a state parliamentary inquiry, AHPRA and the OHO will be subject to a legislated joint consideration mechanism from December 2020, whereby both agencies will review each matter and agree on the best agency to deal with a notification.33
Role of health practice or service 3.28 The committee heard that there is greater scope for the resolution of concerns directly with health practices and services, before they reach AHPRA.34
3.29 According to AHPRA, health practices and services have a variable role in the management of complaints. It noted that in the coregulatory jurisdictions there is a requirement to attempt resolution with a health practitioner directly and this can be required by the local regulators.35
30 Mr Andrew Brown, Health Ombudsman, OHO, Committee Hansard, 22 September 2021, p. 9.
31 Dr Quinn, RACS, Committee Hansard, 8 July 2021, p. 5; Dr Antonio Di Dio, President, Australian
Medical Association (AMA), Committee Hansard, 8 July 2021, p. 5.
32 Associate Professor Lakra, RANZCP, Committee Hansard, 8 July 2021, p. 5.
33 AHPRA, answers to written questions on notice (received 20 September 2021), p. 6; Queensland
Parliament Health, Communities, Disability Services and Domestic and Family Violence Prevention Committee, Inquiry into the performance of the Health Ombudsman's functions pursuant to section 179 of the Health Ombudsman Act 2013, December 2016, p. 4.
34 Professor Merrilyn Walton, Faculty of Medicine and Health, University of Sydney, Committee
Hansard, 22 September 2021, p. 24; Ms Georgie Haysom, Head of Research, Education and Advocacy, Avant Mutual Group Committee Hansard, 8 July 2021, p. 51; Ms Annie Butler, Federal Secretary, Australian Nursing and Midwifery Federation (ANMF), Committee Hansard, 8 July 2021, p. 16.
35 AHPRA and the national boards, Submission 78, p. 5. The submission refers to Health Ombudsman
Act (Qld), s. 35A, and the Health Care Complaints Commission Act (NSW), s. 27(1)(e)).
39
3.30 It was suggested that notifications, particularly those that involve a single dissatisfying experience and result in no further action, should be directed to the health practice or service first for resolution.36 Ms Claire Bekema of the Pharmacy Guild of Australia told the committee:
… our members feel that they jump to this notification process rather than having a conversation to start with. If AHPRA, in receiving that notification, can ask the public: 'Have you had a conversation?', that might be a way of reducing the notifications and therefore the impact on practitioners.37
3.31 The committee heard that in the nursing profession, notifications are commonly employment related, and are more appropriately dealt with by the employing health practice or service and not by AHPRA.38
3.32 The Australian Commission on Safety and Quality in Health Care said simple, straightforward performance issues and ‘scope-of-practice’ issues should be dealt with locally:
We don't want to see them being fed off to AHPRA as a third-party independent and the hospitals not necessarily taking responsibility for that in the first instance.39
3.33 It was suggested that the Queensland model, which enables the OHO to decide not to accept a complaint unless the notifier has first tried to resolve the matter directly with the healthcare provider, should be considered nationally.40
3.34 It was also suggested that there should be an ability on the part of AHPRA and the national boards to make mandatory referrals of notifications back to health practices or services to manage.41
Ability to refer matters 3.35 The ability to refer matters, including to health complaints entities, is set out in the National Law.42 Currently, at the conclusion of an investigation, a national
36 Ms Haysom, Avant Mutual Group Committee Hansard, 8 July 2021, p. 51. See also AHPRA and the
national boards, Submission 78, p. 5. See also Professor Walton, University of Sydney, Committee Hansard, 22 September 2021, p. 23.
37 Ms Claire Bekema, Acting National Manager, Policy and Regulation, Pharmacy Guild of Australia,
Committee Hansard, 8 July 2021, p. 24.
38 Ms Butler, ANMF, Committee Hansard, 8 July 2021, p. 16.
39 Mr Leahy, Australian Commission on Safety and Quality in Health Care, Committee Hansard,
22 September 2021, p. 14.
40 MIGA, Submission 17, pp. 6-7.
41 Professor Walton, University of Sydney, Committee Hansard, 22 September 2021, p. 24.
42 AHPRA, Regulatory Guide, p. 15.
40
board can refer a matter to another entity, including a health complaints entity, for investigation or further action.43
3.36 AHPRA noted that the National Law was amended in 2017 to enable the national boards to make a decision that no further action is needed, and to close a matter, if it was referred to another entity—such as a state-based health complaints entity.44
3.37 In 2019-20, AHPRA reported the second most common outcome in a closed notification, after ‘no further action’, was where the matter was being retained by a health complaints entity.45
3.38 However, the committee heard concerns that matters are not routinely referred to health complaints entities unless AHPRA considers a regulatory response is necessary. In addition, that the process is cumbersome, because it requires consideration, seeking a response from the practitioner, and a determination before a referral is made.46
3.39 Among the Tranche 2 reforms to the National Law, it is proposed that the national boards be given the power to refer the subject matter of a notification to ‘another entity’ at the preliminary assessment stage. In addition, following any referral, it is proposed that the board is also empowered to ask the entity for information about how the matter was resolved.47
Timeliness
Protracted timeframes 3.40 The timeliness of the notification process was a common issue raised during the inquiry.48 This was also raised in the committee’s previous inquiries.49
43 National Law, s 167; see AHPRA, Regulatory Guide, p. 34.
44 AHPRA and the national boards, answers to written questions on notice (received 20 September
2021), p. 3.
45 AHPRA, Annual Report 2019-20, p. 79.
46 MIGA, Submission 17, p. 7.
47 See item 5.2 in COAG Health Council, Summary of National Registration and Accreditation Scheme
(Tranche 2) reform proposals, http://www.coaghealthcouncil.gov.au/Portals/0/Summary%20of%20ag reed%20Stage%202%20reforms%20to%20the%20National%20Law.pdf, [ p. 2] (accessed 25 October 2021).
48 See, for example, AMA, Submission 7, p. 8; Adjunct Professor Kylie Ward, Chief Executive Officer,
Australian College of Nursing, Committee Hansard, 8 July 2021, p. 13; Mr Stephen Mason, Chief Executive Officer, Australian Patients Association, Committee Hansard, 8 July 2021, p. 57; Ms Bekema, Pharmacy Guild of Australia, Committee Hansard, 8 July 2021, p. 23; Ms Renae Beardmore, National Vice President, Pharmaceutical Society of Australia, Committee Hansard, 8 July 2021, p. 23; ANMF, Submission 25, pp. 6-7. Australian Psychological Society, Submission 5, p. 7. Several confidential submissions also raised this issue, for example, submissions 42, 65, 83, 94, 100 and 105.
41
3.41 Submitters and witnesses acknowledged that timeliness has improved in recent years.50 However, the committee heard that unacceptable timeframes are still being experienced.51
3.42 According to the Australian Medical Association (AMA), the number of notifications taking longer than three to six months to close is concerning:
As more than 80% of notifications for medical practitioners result in no further action from the [Medical Board of Australia], the AMA would expect to see this timeframe falling … Ideally the AMA would support no investigation taking longer than 2 years other than in exceptional circumstances.52
3.43 The Australian College of Nursing said it was not uncommon for investigations to exceed six months, even where there was little substance to the allegations.53
3.44 It was noted that delays are particularly common in complex and serious matters, and that this is having a detrimental impact on patient care, and the wellbeing of the health practitioner subject to the notification.54 According to Dr Kelly Nickells, Avant Mutual Group:
… 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.55
3.45 The Royal Australian College of Surgeons (RACS) suggested to the committee that timeframes need to be reviewed and tightened.56
3.46 Dr Zena Burgess, CEO of the Australian Psychological Society, told the committee that the initial assessment in particular should be faster. 57
49 Senate Community Affairs References Committee, Complaints mechanism administered under the
Health Practitioner Regulation National Law, May 2017 (2017 Inquiry Report), p. 38.
50 See, for example, MIGA, Submission 17, p. 1; AMA, Submission 7, p. 9.
51 Dr Kelly Nickells, Avant Mutual Group, Committee Hansard, 8 July 2021, p. 52; Australian College
of Midwives, Submission 18, [p. 6].
52 AMA, Submission 7, p. 9.
53 Australian College of Nursing, Submission 12, p. 3.
54 Dr Nickells, Avant Mutual Group, Committee Hansard, 8 July 2021, p. 52. Further discussion of the
detrimental impact of the notifications process on health practitioners is set out in Chapter 4.
55 Dr Nickells, Avant Mutual Group, Committee Hansard, 8 July 2021, p. 52.
56 RACS, Submission 30, p. 7.
57 Dr Zena Burgess, Chief Executive Officer, Australian Psychological Society, Committee Hansard,
8 July 2021, p. 30.
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Reasons for protracted timeframes and delays 3.47 Inquiry participants noted that the reasons for protracted timeframes and delays are not always clear.58
3.48 According to AHPRA, the fact that an investigation takes time does not mean that there have been delays. The duration depends on a range of issues including:
ï the complexity of the issues being considered; ï the response and submission timeframes on the part of the health practitioner, their insurer or legal representative; ï time needed to seek expert opinions; and ï delays in tribunals and courts.59
3.49 Investigator workloads and staffing changes are also impacting timeframes, the committee heard.60 As discussed below, AHPRA’s workforce has been impacted by a significant increase (66 per cent) in the number of notifications received over the past five years.61
3.50 In its submission, AHPRA said that there are some cases where ‘the time taken to investigate is beyond our control. Typically, these cases involve consideration by multiple agencies’.62
3.51 AHPRA also noted that some matters are put on hold due to external factors, such as concurrent criminal investigations or coronial inquiries. AHPRA noted that in 2020-21 there were 345 matters on hold for an average of 99 days for this reason.63
3.52 The National Health Practitioner Ombudsman (NHPO) told the committee that more work is needed to identify the root cause of delays, particularly in relation to notifications that proceed to investigation:
… we need to really focus on what those root causes of delay are. In the future, I think it would be really interesting to look at perhaps a model like
58 See, for example, Dr Burgess, Australian Psychological Society, Committee Hansard, 8 July 2021,
p. 30; Mr David Gardner, Submission 118, [p. 4].
59 AHPRA and the national boards, answer to written questions on notice, 3 September 2021
(received 20 September 2021), p. 1.
60 AHPRA and the national boards, answer to written questions on notice, 3 September 2021
(received 20 September 2021), p. 1.
61 See paragraph 3.44, below; Ms Gill Callister, PSM, Chair, Agency Management Committee,
AHPRA, Committee Hansard, 22 September 2021, p. 37; AHPRA and the national boards, Submission 78, p. 11.
62 AHPRA and the national boards, Submission 78, p. 11.
63 AHPRA and the national boards, answer to written questions on notice, 3 September 2021
(received 20 September 2021), p. 1.
43
the Office of the Health Ombudsman, where there are legislative time frames for dealing with matters.64
Volume 3.53 The volume of notifications received by AHPRA has increased by 66 per cent over the past five years from 6056 in 2015-16 to 10 147 in 2020-21.65 In its submission, AHPRA acknowledged that the growth in notifications has placed
pressure on its notifications staff and workloads.66
3.54 The increasing number of notifications was credited to growing awareness of complaints and notifications processes, and an increasing number of registered health practitioners.67
3.55 Inquiry participants suggested that AHPRA has been ‘inundated’ and that it needs to be better resourced to deal with the volume of notifications that it receives.68
3.56 The CEO of AHPRA told the committee that it does not receive Australian Government funding for its operations and that no additional funding to undertake its notifications role has been sought or received.69
3.57 In response to the committee’s 2017 inquiry, the Australian Government advised that any additional resourcing to improve timeliness should be addressed through the scheme and the management of registration fees.70
64 Ms Richelle McCausland, National Health Practitioner Ombudsman and National Health
Practitioner Privacy Commissioner (NHPO), Committee Hansard, 22 September 2021, p. 19.
65 AHPRA and the national boards, answer to written questions on notice (received 20 September
2021), p. 1; Ms Callister, AHPRA, Committee Hansard, 22 September 2021, p. 37; AHPRA and the national boards, Submission 78, p. 11. Similar increases in complaint numbers were noted in NSW. See NSW HCCC, answers to written questions on notice (received 20 September 2021), p. 1.
66 AHPRA and the national boards, Submission 78, p. 11.
67 Ms Richelle McCausland, NHPO, Committee Hansard, 22 September 2021, p. 15; Mr Martin Fletcher,
CEO, AHPRA, Committee Hansard, 22 September 2021, p. 39.
68 See, for example, Dr Quinn, RACS, Committee Hansard, 8 July 2021, p. 8; Dr Nickells, Avant Mutual
Group, Committee Hansard, 8 July 2021, p. 52; Mr Mason, Chief Executive Officer, Australian Patients Association, Committee Hansard, 8 July 2021, p. 57; Mr Mark Kinsela, Chief Executive Officer, Pharmaceutical Society of Australia, Committee Hansard, 8 July 2021, p. 27; Confidential Submission 55, [p. 1].
69 Mr Martin Fletcher, CEO, AHPRA, Committee Hansard, 22 September 2021, p. 39.
70 Australian Government, Response to the Senate Community Affairs References Committee report:
Complaints mechanism administered under the Health Practitioner Regulation National Law, August 2018, p. 4.
44
Efforts to improve timeframes 3.58 During its 2017 inquiry, the committee recommended that AHPRA improve the timeliness of its processes, and called on the Australian Government to ensure AHPRA has additional resources for this to occur.71
3.59 According to AHPRA, there has been steady reduction in the time taken to complete notifications over the past four years, with a decrease of 5.3 per cent in 2019-20. These improvements have occurred despite significant increases in the volume of notifications.72
3.60 AHPRA told the committee that there has been ongoing work in this area, with increased resourcing and a sharper focus on risk assessment, which has resulted in an overall improvement in timeliness.73
3.61 AHPRA reported in 2019-20 that the majority of notifications (71.6 per cent) were completed in less than six months.74 Of the notifications that had been open for more than 12 months as at 30 June 2020, 93.5 per cent (635) were under investigation.75
Table 3.1 Closed notifications by average time taken to complete the matter
Time taken to close 2018-19 (%) 2019-20 (%)
Less than three months 46.6 41.8
3 - 6 months 21.6 29.8
6 - 9 months 9.3 14.6
9 - 12 months 5.9 6.5
12 - 24 months 11.7 5.5
More than 24 months 4.9 1.8
Source: AHPRA, Annual Report 2019-20, p. 78.
3.62 AHPRA told the committee that its new risk-based approach, adopted in November 2020, deals more efficiently and effectively with low and medium risk notifications:
… lower risk matters can often be completed with additional early input from the relevant practitioner and the practitioner’s employer. Where we
71 See Recommendation 13, 2017 Inquiry Report.
72 AHPRA and the national boards, Submission 78, p. 11.
73 Ms Callister, AHPRA, Committee Hansard, 22 September 2021, p. 37; see also discussion in AHPRA
and the national boards, Submission 78, p. 11.
74 AHPRA, Annual Report 2019-20, p. 78.
75 AHPRA, Annual Report 2019-20, p. 80.
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have evidence of strong individual and organisational risk controls in response to an adverse event or example of unsatisfactory practice, longer, more intensive investigation activity can thus be avoided.76
3.63 However, AHPRA did acknowledge that the volume of notifications on hand, and the impact of the COVID pandemic on its operations, is still contributing to longer than desirable timeframes. According to Mr Matthew Hardy, National Director, Notifications at AHPRA:
That's unfortunate because, for four years successively, as we introduced these triaged changes, the time taken to assess notifications had been coming down... we are 100 per cent committed, to making those time frames return to pre-COVID levels.77
3.64 The NHPO said more could be done at a systems level to improve timeliness. For example, each national board has delegated some of their decision-making powers, to various degrees, to its national committees, state and territory boards and/or to AHPRA.78 The NHPO suggested the boards could delegate more of these powers ‘so that AHPRA staff could make efficient decisions about notifications without having to wait for a board meeting’.79
3.65 For cases that are currently referred to a tribunal for decision, it was also suggested there should be an intermediate decision-maker to reduce the burden on the tribunals and to improve timeliness.80
Assessing and prioritising notifications 3.66 Some inquiry participants suggested that the way notifications are assessed and prioritised could also be improved.81
76 AHPRA and the national boards, Submission 78, p. 11.
77 Mr Matthew Hardy, National Director, Notifications, AHPRA, Committee Hansard, 22 September
2021, p. 40.
78 AHPRA, National Boards, https://www.ahpra.gov.au/National-Boards.aspx, (accessed 8 November
2021).
79 Ms Richelle McCausland, NHPO, Committee Hansard, 22 September 2021, pp. 14-15.
80 Queensland Nurses and Midwives Union, Submission 8, p. 11; ANMF, Submission 25, p. 15. A
national board or a panel can refer a matter to a tribunal for hearing. This happens only for the most serious allegations. See AHPRA, Tribunal hearings,
https://www.ahpra.gov.au/Notifications/How-we-manage-concerns/Tribunal-hearing.aspx (accessed 4 November 2021).
81 See, for example, Ms Haysom, Avant Mutual Group, Committee Hansard, 8 July 2021, p. 51; Dr
Wright, RACGP, Committee Hansard, 8 July 2021, p. 3; Ms Butler, ANMF, Committee Hansard, 8 July 2021, p. 16; Christian Medical and Dental Fellowship of Australia, Submission 77, pp. 1-2.
46
Low risk notifications 3.67 The committee heard that low-risk notifications that are closed with no further action are taking up too much of AHPRA’s limited resources. The example was given of a notification that a doctor was eight minutes late to an
appointment.82 According to one witness:
The majority of complaints about medical practitioners—71.1 per cent in 2019-20—are closed with no further action. These are the lowest-risk notifications, but they consume significant resources. We would say that resources should be allocated to the matters that present the highest risk.83
3.68 The Royal Australian College of General Practitioners (RACGP) told the committee that a better triage system is needed to filter out ‘less significant’ complaints and to free up resources to support notifiers and practitioners through the process and take regulatory action where appropriate.84
Potential ‘meritless’ notifications 3.69 The committee heard that high numbers of ‘meritless’ or ‘frivolous’ claims made to APHRA are not being identified and closed early in the process.85 It was also suggested that some of the notifications that AHPRA receives and
progresses do not raise issues that legitimately risk public safety.86
3.70 The Australian Psychological Society gave an example of a complaint made about a practitioner who, in a professional meeting, said that COVID lockdowns ‘felt like being under house arrest’:
They were reported to AHPRA and it took 3½ months for that to be investigated and for them to be found not to have been in breach of professional practice. That is the kind of thing that should be thrown out straightaway. AHPRA investigates everything without a grid as to risk to patient, risk to breach of the act.87
3.71 The committee heard specific concerns about notifications relating to practitioners with ‘non-mainstream’ views or practices, including some who practice alternative therapies. It was suggested that these types of notifications
82 Dr Anne Tonkin, Chair, Medical Board of Australia, Committee Hansard, 22 September 2021, p. 46.
83 Ms Haysom, Avant Mutual Group, Committee Hansard, 8 July 2021, p. 51. See further discussion
under ‘Outcomes’ at paragraph 3.110.
84 Dr Wright, RACGP, Committee Hansard, 8 July 2021, p. 3.
85 Dr Quinn, RACS, Committee Hansard, 8 July 2021, p. 12.
86 Dr Di Dio, AMA, Committee Hansard, 8 July 2021, pp. 8-9.
87 Dr Burgess, Australian Psychological Society, Committee Hansard, 8 July 2021, p. 30.
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have been inappropriately progressed through the notifications process when they do not risk public safety.88
Reforms introduced by AHPRA 3.72 AHPRA told the committee that its risk-based approach to notifications ensures matters of significant risk progress to investigation, and lower risk matters are finalised more expeditiously. In addition, matters requiring
immediate action by a board to protect public safety are prioritised.89
3.73 According to AHPRA, the risk-based approach considers a practitioner’s overall regulatory history and practice setting, as well as the nature and context of the concerns raised by a notifier: 90
3.74 The committee heard positive feedback about the reforms, including from the NHPO.91 The AMA gave the example of a recent notification that was found to be unsubstantiated by AHPRA, and which was dealt with quickly, with the outcome communicated clearly, causing limited angst to the health practitioner.92
3.75 Avant Mutual Group commented that the reforms use an educative approach, which encourages health professionals to reflect on the concerns raised in a notification and learn from it.93
Clinical input 3.76 The committee made several recommendations relating to clinical input in the notifications process in its 2017 inquiry, specifically, that:
ï AHPRA and the national boards institute mechanisms to ensure appropriate clinical peer advice obtained at the earliest possible opportunity in the management of a notification;
88 See, for example, Dr Di Dio, President, AMA, Committee Hansard, 8 July 2021, pp. 8-9; Australasian
Integrative Medicine Association, Submission 31, p. 2; Australian Doctors Federation, Submission 2, p. 2; Australian Health Practitioners Advisory Solutions, Submission 23, p. 5.
89 AHPRA and the national boards, answer to written questions on notice (received 20 September
2021), p. 2.
90 AHPRA and the national boards, answer to written questions on notice (received 20 September
2021), p. 2.
91 NHPO, answers to written questions on notice (received 20 September 2021), p. 6. See also, for
example, Ms Bekema, Pharmacy Guild of Australia, Committee Hansard, 8 July 2021, p. 22; AMA, Submission 7, p. 7; Dr Nickels, Avant Mutual Group, Committee Hansard, 8 July 2021, p. 52; Dr Di Dio, AMA, Committee Hansard, 8 July 2021, pp. 6-7; Ms Haysom, Avant Mutual Group, Committee Hansard, 8 July 2021, pp. 55-56.
92 See evidence from Dr Di Dio, AMA, Committee Hansard, 8 July 2021, pp. 6-7; Ms Boase, Australian
College of Nurse Practitioners, Committee Hansard, 8 July 2021, p. 15.
93 Ms Haysom, Avant Mutual Group, Committee Hansard, 8 July 2021, p. 56.
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ï AHPRA develop a transparent independent method of determining when external advice is obtained and who provides that advice; and ï AHPRA consider providing greater remuneration to practitioners called upon to provide clinical peer advice.94
Efforts to improve clinical input 3.77 AHPRA told the committee it employs registered health practitioners across all professions to provide clinical input throughout the notifications process, including during the initial assessment stage:
These registered health practitioners work alongside our regulatory staff to identify concerns or issues, understand risks, interpret clinical matters, and reference profession-specific guides, standards and codes.95
3.78 In addition, all of the national boards and their delegated decision-making bodies include practitioner members.96 Where necessary, independent and expert opinion can also be sought by the boards in particular cases.97
3.79 The committee heard that AHPRA has recently increased the number of registered health practitioners it employs to provide clinical input in the preliminary stages of the notifications process:
Since 2018, we have introduced a number of changes to the way we manage the assessment process that are about front loading—that is, getting more clinical input from both clinical advisors who AHPRA employ and from board members who make the decisions about each individual notification front loaded and happening as soon as we can.98
3.80 The AMA noted positively the introduction of a clinical input team, which involves medical practitioners screening every notification to identify and stratify clinical risk. In their submission they noted this early clinical input has resulted in higher quality recommendations being made more quickly.99
Ongoing issues 3.81 Despite these improvements, some concerns were raised about the management of clinical input provided by independent experts.
3.82 It was suggested that there needs to be greater transparency of the material provided to AHPRA by independent experts, and that health practitioners
94 See Recommendations 4, 6 and 7, 2017 Inquiry Report.
95 AHPRA and the national boards, Submission 78, p. 13; AHPRA and the national boards,
correspondence dated 5 August 2020, p. 4.
96 AHPRA, Submission 78, p. 13.
97 AHPRA, Regulatory Guide, p. 30.
98 Mr Hardy, AHPRA, Committee Hansard, 22 September 2021, p. 45.
99 AMA, Submission 7, pp. 2, 6 and 7.
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need to be given sufficient time and the opportunity to obtain an expert opinion in response.100
3.83 RANZCP told the committee that AHPRA needs to work more closely with professions to identify appropriate expert opinions or conduct performance assessments. Associate Professor Vinay Lakra, RANZCP, explained that:
More often than not, we became aware through our members that the expert identified in dealing with some of these issues does not understand the nuances of those particular practices that particular specialty is dealing with or that practitioner deals with…101
3.84 In their submission, RACS suggested clinical input in relation to a notification should require the person to be in the same field of speciality as the person subject to the complaint:
If the person giving clinical input is not an expert as described then there is a real risk that any clinical opinion they provide may be incorrect or out of date.102
3.85 The NHPO suggested that AHPRA and the national boards need to consider further when and how independent clinical advice is used, as this step in the process can contribute to protracted timeframes.103
Transparency and communication
Lack of transparency 3.86 Concerns were raised about a lack of transparency in the notifications process.104 The committee heard that this has also been a key issue in complaints to the NHPO.105
3.87 For example, the Australian Psychological Society suggested the decision framework explaining how AHPRA deals with matters and the timeframes that can be expected is not clear and transparent. Other inquiry participants
100 Avant Mutual, Submission 33, p. 8. See discussion in ‘Procedural fairness’ below.
101 Associate Professor Lakra, RANZCP, Committee Hansard, 8 July 2021, p. 5. This issue was also
raised in Confidential Submission 49, [p. 3].
102 RACS, Submission 30, p. 8. RACS noted that the same approach should be taken at the
panel/tribunal stage.
103 Ms McCausland, NHPO, Committee Hansard, 22 September 2021, pp. 14-15.
104 Australian College of Midwives, Submission 18, [p. 5]; Australian Patients Association, Submission
72, p. 2; Pharmacy Guild of Australia, Submission 21, pp. 8 and 12. This issue was also raised in confidential submissions, for example, Confidential Submissions 48 and 112. Concerns were raised about transparency in the committee’s earlier inquiry. See 2017 inquiry report, p. 30.
105 NHPO, answers to written questions on notice, 3 September 2021 (received 20 September 2021),
p. 10.
50
noted there needs to be greater transparency in the likely outcomes of a notifications process and avenues for appeals.106
3.88 The RACGP said this was particularly important for overseas-trained doctors who are not as familiar with the Australian health system.107
Inadequate communication 3.89 The committee heard that AHPRA’s communication with notifiers and health practitioners during the notifications process is inadequate. Issues included difficulty contacting AHPRA, inconsistent information, and delays in
communication throughout the process.108
3.90 Complaints to the NHPO suggest there are systemic problems with AHPRA’s communication, with complainants commonly raising the following issues:
ï frustration with unanswered phone calls and written correspondence; and ï not receiving updates about a matter, particularly if it is delayed.109
3.91 There are currently no published service standards in relation to communication during the notification process. However, under the National Law, a written update is required at not less than three monthly intervals.110
Notifiers experience 3.92 The NHPO told the committee that, despite efforts to clearly communicate the parameters of the national scheme, there is an ongoing tension regarding notifiers and their understanding and expectations of the notifications
process.111
3.93 AHPRA acknowledged that notifiers experience with the notifications process can be unsatisfying because, as discussed earlier in this chapter, AHPRA is not able to provide the kinds of remedy that they might be seeking.112 The committee heard that more can be done to clarify the purpose to the
106 Dr Burgess, Australian Psychological Society, Committee Hansard, 8 July 2021, p. 30; RACS,
Submission 30, p. 6; Australian College of Nursing, Submission 12, p. 3; Australasian Integrative Medicine Association, Submission 31, p. 3.
107 Dr Wright, RACGP, Committee Hansard, 8 July 2021, p. 11.
108 Adjunct Professor Ward, Australian College of Nursing, Committee Hansard, 8 July 2021, p. 13;
Pharmacy Guild of Australia, Submission 21, p. 8; Confidential Submission 100, [p. 2].
109 NHPO, answers to written questions on notice, 3 September 2021 (received 20 September 2021),
p. 10.
110 National Law, s. 161. AHPRA, answers to written questions on notice, 3 September 2021 (received
20 September 2021), p. 4.
111 NHPO, answers to written questions on notice, 3 September (received 20 September 2021), p. 8.
112 See discussion above at paragraph 3.14 to 3.21.
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notifications process so that the right matters are raised with AHPRA in the first place.113
3.94 In addition, the NHPO told the committee that AHPRA does not always provide the notifier with enough information about why they decided to take no further action on a matter.114
Areas for improvement 3.95 AHPRA acknowledged that it is not currently meeting its statutory requirements for written updates and advised the committee that it is looking at ways to improve compliance including through automated written
updates.115
3.96 The committee’s 2017 inquiry recommended AHPRA review and amend how it engages with notifiers to ensure that they are aware of their rights and responsibilities and informed about the progress and status of the notification.116 It also recommended that AHPRA institute a practice of providing monthly updates to complainants and medical professionals who are the subject of complaints.117
3.97 The committee heard that there is still scope for AHPRA to improve how it communicates with notifiers about the notification process and how their matter was handled. According to the NHPO:
Often, the NHPO has found that when it becomes clear to complainants that their matter has been through a fair process, they are likely to accept the outcome they receive, even if it is not the outcome they were hoping for.118
3.98 The NHPO suggested setting a more comprehensive service standard to address concerns about communication and transparency in the notifications process:
From an organisational perspective, it would assist Ahpra to induct staff and ensure staff have a clear understanding of their role in
communication. From a complainant perspective, these standards also operate to set expectations about what level of communication they can
113 Ms McCausland, NHPO, Committee Hansard, 22 September 2021, p. 16.
114 NHPO, answers to written questions on notice, 3 September (received 20 September 2021), p. 8.
115 AHPRA and the national boards, answers to written questions on notice (received 20 September
2021), p. 4.
116 See Recommendation 1, 2017 inquiry report.
117 See Recommendation 14, 2017 inquiry report.
118 NHPO, answers to written questions on notice (received 20 September 2021), p. 8; Confidential
Submission 37, [p. 2].
52
look forward to, and therefore reduce unnecessary stress or anxiety associated with uncertainty.119
Procedural fairness 3.99 A lack of natural justice and procedural fairness in the notifications process was raised by a number of participants in the inquiry.120
Insufficient information 3.100 It was suggested that AHPRA do not always provide sufficient details in order for health practitioners to represent themselves fairly to AHPRA or the national boards. As discussed further in the next chapter, this was particularly
a concern in relation to anonymous notifications.121
3.101 The committee also heard that there is inadequate and sometimes inconsistent information being communicated to health practitioners to enable them to respond to notifications.122
Presumption of guilt 3.102 Many health practitioners reported feeling a presumption of guilt in the way they are notified of a complaint.123 One submitter referred to it as a ‘guilty until proven innocent approach’.124
3.103 The Australian College of Midwives submitted that midwives who are subject to an investigation believe their efforts to demonstrate sound practice and processes are in vain:
They discuss feelings of already having been found guilty before they have had the opportunity to share their story or version of events.125
119 NHPO, answers to written questions on notice (received 20 September 2021), p. 10.
120 See, for example, Association of Family and Conciliation Courts - Australian Chapter,
Submission 32, p. 4; Dr Gerrit Reimers, Submission 40, pp. 2-3; Confidential Submission 43, [p. 1]; Confidential Submission 60, [pp. 2-3]; Confidential Submission 81a, p. 3.
121 Dr Burgess, Australian Psychological Society, Committee Hansard, 8 July 2021, p. 30-31. On the
difficulty responding to anonymous notifications, see discussion in Chapter 4.
122 Australian Acupuncture and Chinese Medicine Association (AACMA), Submission 3, p. 6.
123 See, for example, Dr Burgess, Australian Psychological Society, Committee Hansard, 8 July 2021,
p. 34; Ms Anne Marie Collins, President, Australian Association of Psychologists Incorporated, Committee Hansard, 8 July 2021, p. 29; Australian College of Midwives, Submission 18, [p. 4]; Dr Kerry Breen, Submission 35, Appendix B, p. 7; Pharmacy Guild of Australia, Submission 21, p. 12; Confidential Submissions 48, 55, 100 110.
124 Australian and New Zealand Association of Oral and Maxillofacial Surgeons (ANZAOMS),
Submission 10, [p. 4].
125 Australian College of Midwives, Submission 18, [p. 4].
53
Insufficient opportunity to respond 3.104 In addition, a number of inquiry participants said health practitioners have insufficient time to provide responses.126 The Australian and New Zealand Association of Oral and Maxillofacial Surgeons commented that:
… practitioners are given very short timeframes to provide [counter] evidence, but then wait long periods of time to know what is happening within AHPRA.127
3.105 According to the RANZCP, the time practitioners are given to respond to a concern ‘may not allow enough time for practitioners to get legal advice and to consider all the options’.128
3.106 The committee heard that when immediate action is taken, the national boards need to consider the sometimes severe impacts on health consumers— including suicide—if practitioners are not even given time to make alternative arrangements for their patients.129
3.107 The Australian Association of Psychologists incorporated said another concern was that the process is entirely in writing and by email, which makes it difficult and time-consuming.130
3.108 The AHPRA Community Reference Group argued that notifiers also need further opportunities to be heard through the notifications process.131
Independent expert opinion 3.109 The NHPO noted that it has provided feedback to AHPRA on the need for practitioners to be formally invited to provide a response to an independent opinion report.132
3.110 Where a notification uses an independent expert, it was suggested that the health practitioner should be given a copy of their evidence, and the
126 ANZAOMS, Submission 10, [p. 4]; Avant Mutual, Submission 33, p. 8; MIGA, Submission 17, p. 10;
Australian Psychological Society Limited, Submission 5, p. 4; Ms Cressida Hall, General Manager, Australasian Integrative Medicine Association, Committee Hansard, 9 July 2021, p 14; Confidential Submission 43, [p. 1].
127 ANZAOMS, Submission 10, [p. 4]. See also Australian Association of Psychologists Incorporated,
Submission 73, [p. 11].
128 RANZCP, Submission 28, p. 5.
129 Confidential Submission 36, [p. 2.]; Confidential Submission 43, [p. 2.]
130 Ms Collins, Australian Association of Psychologists Incorporated, Committee Hansard, 8 July 2021,
p. 34.
131 AHPRA Community Reference Group, Submission 78, p. 7.
132 NHPO, Submission 79, [p. 45]
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opportunity to respond. It was also noted that there needs to be sufficient time to seek independent expert opinions in response.133
Regulatory approach 3.111 AHPRA told the committee that, through its processes, health practitioners are made fully aware of the nature of the concerns raised against them (either by giving a copy of the notification or a summary) and the information that
informs a board’s decision.134
3.112 In its regulatory guidance, AHPRA acknowledges that what is required for procedural fairness depends on the case and what regulatory action is being proposed:
… what is required in order to ensure procedural fairness is context-dependent. It is possible for procedural fairness requirements to differ between decisions of the same kind, having regard to the circumstances of a particular case.135
3.113 The NHPO noted that there are opportunities for health practitioners to give verbal evidence to a board, particularly if serious regulatory action is being considered.136 It was also noted that health practitioners with concerns about procedural fairness can seek a formal review of the decision, and also make a complaint to the NHPO about the process—which could recommend the board reconsider its process or decision-making.137
3.114 As a part of the Tranche 2 reforms, the National Law is to be amended to enable the boards to broaden the scope of their investigations where additional matters requiring investigation are identified. Where this occurs, certain procedural fairness requirements would be required.138
133 Avant Mutual, Submission 33, p. 8.
134 AHPRA and the national boards, answers to written questions on notice, 3 September (received 20
September 2021), p. 4. See also Mr Brown, Health Ombudsman, OHO, Committee Hansard, 22 September 2021, p. 11; Ms Dawson, Commissioner, NSW HCCC, Committee Hansard, 22 September 2021, p. 11; Mr Hardy, AHPRA, Committee Hansard, 22 September 2021, p. 49; AHPRA, Submission 78, pp. 12 and 16 - 17.
135 AHPRA, Regulatory Guidance, pp. 102-105.
136 Ms McCausland, NHPO, Committee Hansard, 22 September 2021, p. 17.
137 See AHPRA, Submission 78, p. 16-17; Ms McCausland, NHPO, Committee Hansard, 22 September
2021, p. 17. See further discussion under ‘Appealing a decision’ below.
138 See item 5.4.1 in COAG Health Council, Summary of National Registration and Accreditation Scheme
(Tranche 2) reform proposals, http://www.coaghealthcouncil.gov.au/Portals/0/Summary%20of%20ag reed%20Stage%202%20reforms%20to%20the%20National%20Law.pdf, [p . 2] (accessed 25 October 2021). The reforms would require the board to provide a show cause process (by removing an exemption that currently applies) where it proposes to act for reasons related to a health practitioners’ health, conduct or performance; and any variation in a show cause process or decision under a different part of the law must allow a practitioner to respond to specific new matters, as often and with as much notice and time to respond as is reasonable.
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Bias and conflicts of interest 3.115 Inquiry participants, including a number of confidential submitters, raised concerns about conflicts of interest affecting the notifications process.139
3.116 Concerns about bias were also raised, mostly in the context of board memberships, and the suggestion that, in some professions, membership was not representative, and this has resulted in biased notification outcomes.140
3.117 For example, the Australian Association of Psychologist incorporated submitted that the national and state boards do not reflect the diversity of the profession, which leads to bias regarding what is ‘reasonable’ in practice when doing an investigation.141
3.118 In the previous inquiry, the committee recommended that AHPRA immediately strengthen its policy for members of boards. It also recommended the Chair of the board make active inquiries of other decision makers about actual or potential conflicts of interest prior to the consideration of any notification.142
3.119 AHPRA told the committee that since the last inquiry it has reviewed and updated its policies.143 AHPRA noted a range of measures exist to manage conflicts of interest that may arise in assessing a notification about a practitioner including:
ï conducting checks before engaging clinical experts to identify reasons that may preclude the provision of impartial advice; ï engaging additional independent and expert opinion to supplement the advice of AHPRA’s clinical advisors, where early clinical advice indicates an
issue of clinical performance; and ï internal procedures for managing actual or perceived conflicts of interest for AHPRA staff and board members, or delegated committee members with
the power to make decisions.144
3.120 The committee heard some support for the policies and approach that AHPRA has taken.145 For example, MIGA suggested that increased employment of
139 For example, Confidential Submissions 39, 41, 46, 51, 52, 61, 62, 66, 69 and 73.
140 See, for example, discussion about the makeup of the Australian Medical Board in Australasian
Integrative Medicine Association, Submission 31, p. 4; Lyme Disease Association of Australia, Submission 75, p. 10.
141 Australian Association of Psychologists incorporated, Submission 73, pp. 7 and 12.
142 Recommendation 5, 2017 Inquiry Report.
143 AHPRA and the national boards, correspondence dated 5 August 2020, p. 4.
144 AHPRA and the national boards, Submission 78, pp. 12-13.
145 See, for example, AHPRA Community Reference Group, Submission 78, Attachment 2, pp. 4-5;
MIGA, Submission 17, p. 10.
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health practitioners as clinical advisors has mitigated some of the risks of conflicts of interest.146
3.121 The NHPO noted that AHPRA has also recently addressed a gap in its conflict of interest policy and practices in relation to independent practitioner’s opinions commissioned by third parties (not AHPRA).147
Outcomes
No further action 3.122 As discussed above, the high proportion of notifications that end with ‘no further action’ (over 70 per cent) was cause for concern for some inquiry participants.148
3.123 The Medical Board of Australia acknowledged that within the 70 per cent of notifications that are closed with no action, there are a proportion that are low level concerns raising no risk at all to the public.149
3.124 AHPRA commented that although most notifications do not result in the need for regulatory action, it does not mean they lacked merit, and that they may raise valid concerns about the care a person has received:
Around 50% of the notifications we receive are made by a patient, their families and friends or other members of the public. We rely on patients and the public to raise their concerns with relevant agencies. It is important that we have access to those concerns to inform risk assessments and future policy settings.150
3.125 Dr Anne Tonkin, Chair of the Medical Board of Australia, noted that many low risk notifications are closed with no further action because the practitioner proactively takes steps to reduce to the risk to the public and there is no need to take regulatory action. Dr Tonkin told the committee:
So it's not that nothing's happened; something has happened, but it hasn't had to be through regulatory action… [this is] a beneficial outcome for the public because the risk is lower going forward, and it is a beneficial outcome for the practitioner because they are at much lower risk of having another notification about that particular issue.151
146 MIGA, Submission 17, p. 10.
147 NHPO, Submission 79, [p. 46].
148 See above at paragraph 3.58.
149 Dr Tonkin, Medical Board of Australia, Committee Hansard, 22 September 2021, p. 46; AHPRA and
the national boards, answer to written questions on notice (received 20 September 2021), pp. 2-3.
150 AHPRA and the national boards, answer to written questions on notice (received 20 September
2021), pp. 2-3.
151 Dr Tonkin, Medical Board of Australia, Committee Hansard, 22 September 2021, p. 46.
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3.126 AHPRA noted that amendments to the National Law in 2017 enables the national boards to make a decision that no further action is needed if the matter a health practitioner subject to a notification has taken appropriate steps to remedy the issues identified and the board is reasonably satisfied no further action is required.152
3.127 The AHPRA Community Reference Group suggested that more needs to be done to educate the public, and health practitioners, about the outcomes of notifications and the purpose and structure of the national scheme. It noted:
… there appears to be a tendency for practitioners to take that to mean that most of the complaints made against them are vexatious. On the other hand, health consumers can interpret that result as meaning that boards are letting too many practitioners “off-the-hook.” Greater understanding of the structure and purpose of the national scheme and actions taken under it would assist in reducing both perceptions.153
Conditions 3.128 Under the National Law, conditions can be placed on a health practitioner’s registration as a result of the notifications process.154
3.129 Where conditions are placed on practitioners with immediate effect, witnesses told the committee that this can have unintended negative consequences for patient outcomes and continuity of care in rural and regional areas.155
3.130 As noted in Chapter 2, the Australian Nursing and Midwifery Federation reported an increasing number of education conditions that members find challenging, if not impossible, to comply with. In their submission they noted:
A commonly required condition is that a member completes a refresher or re-entry program, even though there are very few programs available in Australia for nursing or midwifery refresher or re-entry.156
Supervision 3.131 A common type of condition that might be imposed on a health practitioner is that they be subject to a period of supervised practice.157
3.132 As discussed in Chapter 2, the committee heard that the supervised practice requirements pose specific challenges in some professions.158 Several
152 AHPRA and the national boards, answers to written questions on notice (received 20 September
2021), p. 3.
153 See AHPRA, Submission 78, Community Reference Group Submission, p. 4.
154 See for example, AHPRA, Regulatory Guide, pp. 35-37.
155 Ms Claire Bekema, Pharmacy Guild of Australia, Committee Hansard, 8 July 2021, p. 23.
156 ANMF, Submission 25, p. 8.
157 See for example, AHPRA, Regulatory Guide, pp. 36 and 42.
158 See discussion in Chapter 2, from paragraph 2.33.
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submitters noted that it is hard to find supervisors that are appropriately qualified, and that this can result in a practitioner not being able to practice.159 Furthermore, that the timeframes to find a practitioner are also unrealistic and that supervision can be costly.160
3.133 In addition to the above concerns, several submissions commented on the time that it takes for nominated supervisors to be approved by AHPRA.161 According to one submitter:
… in many circumstances, practitioners cannot practise until they have an approved supervisor … In our experience it can often take months for a supervisor to be approved.162
3.134 Commenting on the time it takes for nominated supervisors to be approved, and communication with AHPRA, Optometry Australia submitted that:
... the time between submitting an initial supervised practice application and receiving the Board’s verdict can be lengthy, in some cases extending over months. Whilst the practitioner is undertaking supervised practice, interim communication with the Board can also be delayed by many weeks. This inefficiency can be stressful for practitioners and impacts the practitioner’s future employment relationships and career.163
3.135 Optometry Australia told the committee that although there have been efforts to clarify the process for supervisors, it remains ‘complex, confusing and inefficient’ and that although guidance materials are provided ‘they often leave practitioners unclear on what supervision will be required’.164
3.136 The committee heard through confidential submissions and in camera evidence of particular instances where AHPRA has delayed approving a nominating supervisor, and not communicated clearly the supervisor’s responsibilities. The committee was told that the process engaged by AHPRA lacked natural justice and demonstrated failures within AHPRA’s internal communications, which resulted in the supervisor themselves being pursued by AHPRA for failing to provide adequate supervision.165
159 Australian Psychological Society, Submission 5, p. 5; Australasian Integrative Medicine Association,
Submission 31, p. 2.
160 Australian Psychological Society, Submission 5, p. 5.
161 Optometry Australia, Submission 20, [p. 2]; Confidential Submission 131; Avant Mutual, Submission
33, p. 6.
162 Avant Mutual, Submission 33, p. 6.
163 Optometry Australia, Submission 20, [p. 2]
164 Optometry Australia, Submission 20, [p. 2]
165 Confidential Submission 131.
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Regulatory approach 3.137 AHPRA advised that as at 30 June 2021, it was monitoring 4650 cases relating to a registered health practitioner, of which, there were 1691 cases requiring supervision.166
3.138 AHPRA told the committee that there are rigorous ‘show cause’ requirements around conditions. In addition, that there are appeal and complaint mechanisms available to practitioners. This includes the ability to make a complaint to AHPRA, or the NHPO, and to seek a review of a condition, if they believe there has been a material change in circumstances.167
3.139 Evidence from AHPRA also outlined the strong focus on public protection in the national scheme, underpinning all regulatory action, including conditions.168 In their submission AHPRA notes several policy directions issued by Health Ministers which reinforce that AHPRA and the national boards are to prioritise public protection in regulatory decision-making.169 Dr Anne Tonkin, Chair of the Medical Board of Australia added:
… from our perspective, with the paramountcy of public protection, if we don't feel that somebody is safe to practice independently, there is really no alternative, from our perspective, other than to put supervision in place while the person increases their expertise and improves their skills to the point where they can safely practice independently.170
3.140 The NHPO commented that AHPRA and the national boards’ need to be able to impose conditions for public safety but they must be justifiable:
… as an overarching principle, I think it is open to the boards to set standards that practitioners need to meet to ensure safe practice. As long as they are able to articulate what those requirements are and why they are in place, I think that is reasonable.171
3.141 On 9 November 2021, AHPRA announced that a Supervised practice framework had been developed and that 12 national boards had approved and published the framework which took effect from 1 February 2022.172 The core components of the framework includes that the levels of the supervised practice requirements are proportionate to the risk and that the roles responsibilities of
166 AHPRA, answer to questions on notice taken 11 November 2021 (received 17 November 2021),
p. 2.
167 AHPRA and the national boards, Submission 78, pp. 7-8.
168 AHPRA and the national boards, Submission 78, pp. 17-18.
169 AHPRA and the national boards, Submission 78, p. 18.
170 Dr Tonkin, Medical Board of Australia, Committee Hansard, 22 September 2021, p. 50.
171 Ms McCausland, NHPO, Committee Hansard, 22 September 2021, p. 17.
172 Advanced copy of supervised practice framework published, https://www.ahpra.gov.au/News/2021-11-09-advance-supervised-practice-framework.aspx ( accessed 13 January 2022).
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the supervisee, supervisor and employers are clearly explained.173 The framework contains information for supervisees, supervisors and employers.
Appeals 3.142 Submissions argued the current avenues for appeal are inadequate, difficult, expensive and time-consuming.174
3.143 Only health practitioners who have been the subject of a decision by a national board can appeal that decision, and there are limits on the types of decisions that can be appealed.175
3.144 Appealable decisions include those by a national board to suspend a practitioner’s registration, or impose or change a condition on a practitioner’s registration.176
3.145 AHPRA submitted that beyond the appeal rights set out in the National Law, practitioners can seek an informal review of a decision from the relevant board. According to AHPRA:
While there is no legislative imperative in doing so, a Board (or its delegate) will consider such an application to ensure that the decision is operating as intended and is not causing unnecessary prejudice to the practitioner.177
3.146 Complaints about how AHPRA and the national boards have handled a notification or registration matter can be made to the NHPO. However, the NHPO asks respondents to make a formal complaint to AHPRA’s complaints team before contacting the NHPO if possible.178
173 AHPRA and the national boards, Supervised Practice Framework, 1 February 2022, p. 3.
174 See, for example, RACS, Submission 30, pp. 8-9; Australasian Integrative Medicine Association,
Submission 31, p. 4; Pharmacy Guild of Australia, Submission 21, p. 9; and Occupational Therapy Australia, Submission 27, p. 3; and Australian Psychological Society, Submission 5, p. 8; Confidential Submission 37, [p. 4]; Confidential Submission 110, [p. 4].
175 AHPRA, Appealing a decision, https://www.ahpra.gov.au/Notifications/Has-a-concern-been-raised-about-you/Appealing-a-decision.aspx ( accessed 4 November 2021); AHPRA and the national boards, Submission 78, pp. 16-17.
176 AHPRA, Appealing a decision, https://www.ahpra.gov.au/Notifications/Has-a-concern-been-raised-about-you/Appealing-a-decision.aspx ( accessed 4 November 2021); AHPRA and the national boards, Submission 78, pp. 16-17.
177 AHPRA and the national boards, Submission 78, p. 17.
178 NHPO, Make a complaint, https://www.nhpo.gov.au/make-a-complaint#toc-step-1, (accessed 9
November 2021).
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3.147 The committee heard concerns about a lack of visibility and awareness of the NHPO’s complaint handling role, as well as the requirement to first take the complaint to AHPRA.179
Broadening appeal rights 3.148 The committee’s previous inquiry made several recommendations to broaden appeal rights in the National Law, including making a caution an appellable decision.180 The committee heard that the decision not to progress this reform
should be reconsidered ‘given the potentially serious impact of a caution on the practice, health and well-being of practitioners’.181
3.149 The need for improved review rights for notifiers was raised. This issue was also addressed in the committee’s previous inquiry. Maurice Blackburn lawyers submitted that notifiers should be able to seek a merits review in certain cases to ‘alleviate some of the power imbalance that exists between notifiers and health practitioners’.
Systemic issues 3.150 It was suggested that there needs to be improved responses to systemic factors underpinning the significant numbers of notifications.182 According to one witness:
… the model of professional regulation we have under our national law focuses on the individual and what they should have done. It misses the chance to look holistically at improving patient care and workplace culture. Blaming an individual is neither fair nor helpful to them. To ensure patient safety, professional wellbeing and good healthcare culture, we say there needs to be a better approach.183
3.151 For example, Avant Mutual told the committee that high numbers of notifications about international medical graduates suggest systemic issues with supervision, and a lack of understanding of the Australian system, which could be addressed through support and training.184
3.152 The committee heard that AHPRA needs to work more closely with professional associations to identify and address systemic issues.185
179 See, for example, Avant Mutual, Submission 33, p.7; Dr Kerry Breen, Submission 35, p. 4;
Confidential Submission 36, [p. 4.]
180 See Recommendation 11, 2017 Inquiry Report.
181 MIGA, Submission 17, p. 10; Maurice Blackburn, Submission 74, p. 4.
182 MIGA, Submission 17, p. 1; Mr David Gardner, Submission 118, [p. 2].
183 Mr Timothy Bowen, Manager, Advocacy and Legal Services, Medical Insurance Group Australia
Committee Hansard, 8 July 2021, p. 50.
184 Avant Mutual, Submission 33, p. 6.
185 Mr Kinsela, Pharmaceutical Society of Australia, Committee Hansard, 8 July 2021, p. 27.
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Committee view 3.153 At the outset, the committee acknowledges the ongoing maturation of the notifications function and the evolution of AHPRA’s policies and processes since the committee’s last inquiry. It is heartening that some of the key areas of
concern—around timeliness, clinical input, and managing conflicts of interest for example—have been a key focus for AHPRA since the committee’s last inquiry.
3.154 The committee acknowledges the growing volume of notifications made each year, and the pressure this places on AHPRA, the national boards and co-regulatory bodies. Although increasing notifications indicates a growing awareness and accessibility of notifications processes, the committee is concerned about the number of notifications received by AHPRA and the co-regulatory bodies which fall outside their remit, and which are more appropriately dealt with by other complaint bodies.
3.155 The committee recognises that the regulatory framework for health complaints is inherently complex, and this poses challenges for the regulators trying to explain to the community where to take their concerns. However, there is a clear need to do more to support people to understand and navigate the different complaints and notification pathways and potential outcomes.
3.156 More also needs to be done to ensure that supervisors are provided with adequate information and that they are appropriately supported to fulfil their role. Evidence to the committee suggests that this has not been the lived experience of a number of supervisors. The committee is concerned that action by AHPRA against supervisors could suggest an absence of natural justice; failures of internal communication; and a lack of engagement with the professional community.
3.157 While the recently released Supervised Practice Framework provides an important resource for supervisees, supervisors and employees, the committee is of the view that AHPRA needs to take a proactive role in ensuring that supervisors clearly understand their role, responsibilities, and obligations.
3.158 Specifically, the committee considers that all supervisors should have a direct contact within AHPRA to discuss any concerns, or raise any questions, they may have. Importantly, this point of contact should be made available prior to the supervisor signing any contract, as well as continuously throughout the supervisory period. The committee is of the strong view that it is inappropriate for AHPRA to have no contact with a supervisor after a contract is signed.
Recommendation 4
3.159 The committee recommends that AHPRA undertakes urgent and immediate action in relation to supervisory failures and ensure that individual cases are not indicative of a systemic failure.
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Recommendation 5
3.160 The committee recommends that all supervisors should have a direct point of contact within AHPRA and that this point of contact should be made available prior to any contractual arrangements being made, as well as throughout the entire supervisory period.
3.161 The available information on notifications and complaints should be clear, simple, and consistently described by regulators and health complaints entities. There is also opportunity for greater collaboration between regulators and complaints entities in efforts to educate the community and engage with consumers at health practices and services, where the concerns arise in the first place.
3.162 From the evidence provided to the committee, it is clear that health practices and services have a much greater role to play in dealing with the concerns in many low risk notifications in the first instance. More needs to be done to identify and redirect appropriate matters to health practices and services for handling, before they reach AHPRA. The committee considers that health practices and services and peak bodies should play a central role in this task.
3.163 The committee notes that proposed legislative reforms will give the national boards the power to refer the subject matter of a notification to ‘another entity’ at the preliminary assessment stage rather than at the end of an investigation. While this is an opportunity to improve early referrals of notifications more broadly, it should be used by AHPRA and the national boards to refer appropriate matters to health practices and services to respond to in the first instance.
Recommendation 6
3.164 The committee recommends AHPRA reviews and simplifies its published information about notifications and other complaint pathways.
Recommendation 7
3.165 The committee recommends that AHPRA and the national boards undertake education and awareness activities, explaining notifications and other complaints pathways, with health practices and services.
3.166 In addition to simplifying complaint pathways, the committee is of the view that health practices and services should have a much greater role to play in dealing with the concerns in many low risk notifications in the first instance. In respect of notifications concerning professional disputes that do not relate to the safety of a specific patient, the committee is of the view that such notifications be referred to the relevant professional body in the first instance.
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Recommendation 8
3.167 The committee recommends that the Ministerial Council considers reforms to the National Law to enable health practices and services to be referred low risk notifications to be dealt with in the first instance, and that AHPRA and the national boards have discretion to refuse these matters on that ground.
Recommendation 9
3.168 The committee recommends that notifications accepted by AHPRA be limited to clinical issues relating to patient safety.
3.169 The committee would like to acknowledge the significant progress that has been made by AHPRA and the national boards to improve the handling of low and medium risk notifications. The committee is pleased to see an improvement in some of the notifications timeframes, and hear positive feedback on the risk-based reforms from inquiry participants and the National Health Practitioner Ombudsman.
3.170 However, the committee is concerned that some notifications are still subject to unacceptably long timeframes, and as discussed further in the next chapter, this continues to cause significant distress to those going through the notifications process. The reasons for these protracted timeframes needs to be better understood before it can be properly addressed through targeted measures, which could include further delegation of decision-making to AHPRA by the national boards.
Recommendation 10
3.171 The committee recommends that AHPRA and the national boards consider improving the notifications data it collects and publishes to better understand where protracted timeframes are experienced and the reasons for any delays.
3.172 Although recognising that preliminary assessments must be finalised within 60 days, the committee considers that, where a national board decides to investigate a health practitioner, it should set maximum timeframes, for example three months, for the conclusion of its investigations. The timeframes should only take into account the periods of time which AHPRA is in control of, and not the time when AHPRA is waiting for information to be provided.
3.173 The committee recognises that a flexible approach is necessary due to the complexities involved in compiling evidence, commonly from multiple parties, during an investigation. Notwithstanding this, the committee considers that it should be incumbent upon the investigator to proactively follow-up any non-compliance with requests for information where the elapsed time exceeds 12 months from the date of the notification.
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Recommendation 11
3.174 The committee recommends that AHPRA and the national boards undertake an analysis of the cause of protracted notifications timeframes and identify ways to further improve timeliness. Consideration should be given to:
ï what further decision-making powers of the national boards can be delegated to AHPRA; ï the allocation of resources to deal with increasing volumes of notifications; and ï establishing timeframes for aspects of the notifications process.
3.175 The committee considers that a failure to meet the statutory timeframes around written updates, and ongoing poor feedback about AHPRA’s communication with parties, including from the National Health Practitioner Ombudsman (NHPO), is unacceptable. The NHPO’s suggestion for a service standard should be progressed as a priority, outlining when and how updates will be provided to parties during the notifications process.
3.176 Finally, the committee notes that the reforms implemented by AHPRA suggest there is greater scope for practitioners to address the issues raised in notifications themselves without regulatory action. The committee maintains, however, that further effort is needed to use the information from notifications to prevent patient safety issues arising in the first place.
Recommendation 12
3.177 The committee recommends that AHPRA and the national boards develop and publish a strategy for identifying systemic issues and working with stakeholders to proactively address areas of concern.
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Chapter 4
The impact of notifications
4.1 The notifications process is stressful for health practitioners and can have a detrimental impact on their health, reputation and livelihood. This chapter examines these issues and the particular challenges posed by vexatious, anonymous and mandatory notifications. It also explores the adequacy of support for health practitioners subject to a notification, and the experience of notifiers going through a notifications process.
Impact on practitioners 4.2 Health practitioners described receiving a notification as ‘the worst experience of their life’, and that, regardless of whether there is a case to answer, practitioners experience high levels of shame and guilt.1
4.3 The committee heard from peak bodies and individuals subject to notifications about the significant stress caused by notifications and the impact of the process on the mental and emotional wellbeing of practitioners.2
4.4 Dr Penny Caldicott, President of the Australasian Integrative Medicine Association told the committee that the stress caused by the notifications process has broad ranging ramifications:
… 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.3
Mental health and suicide risks 4.5 The committee heard that some health practitioners subject to the notifications process experience poor mental health and are at a high risk of suicide. Several inquiry participants reported health practitioners having suicided, or
1 Dr Antonio Di Dio, President, Australian Medical Association - ACT (AMA), Committee Hansard,
8 July 2021, p. 2; Associate Professor Vinay Lakra, President, Royal Australian and New Zealand College of Psychiatrists (RANZCP), Committee Hansard, 8 July 2021, p. 10.
2 See, for example, Queensland Nurses and Midwives’ Union, Submission 8, p. 10; Australian
Acupuncture and Chinese Medicine Association, Submission 3, p. 7; Confidential Submissions 42 and 46.
3 Dr Penny Caldicott, President, Australasian Integrative Medicine Association (AIMA), Committee
Hansard, 9 July 2021, p. 11.
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experienced suicidal ideation, during a notification process.4 According to Dr Adrian Sheen, Director of the Australian Doctors Federation:
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.5
4.6 The committee heard that the impact the notifications process has on the health and wellbeing of practitioners is disproportionate to the risk to public safety. Dr Antonio Di Dio, President of the Australian Medical Association ACT (AMA), encapsulated the testimony from many witnesses—especially doctors:
It would be fair to say that there's not a great deal of love for this scheme in many parts of our profession, particularly in how it impacts on the lives and mental health of so many of our colleagues and friends and through the fear it creates … I get many calls a week from distressed and/or suicidal doctors, and a great number of them are part of a process which they describe as Kafkaesque.6
Uncertainty and reputational damage 4.7 The uncertainty resulting from the length of time it can take to finalise an investigation, without being given any reason for the delay, was regularly cited as a reason for the process being so distressing. Dr Kelly Nickels,
Joint Acting General Manager Professional Conduct at Avant Mutual Group, told the committee:
Even a minor complaint hanging over a doctor's head for some weeks to a few months can be extraordinarily distressing. But, even more importantly, complex and serious matters can languish for months, even years, with little to no discernible progress.7
4.8 The reputation damage caused by a notification was also highlighted to the committee. Dr Michael Wright of the Royal Australian College of General Practitioners explained:
… regardless of the eventual outcome, the processes can cause reputational damage and undue stress on the practitioner.8
4 Australian College of Midwives, Submission 18, p. 8; Dr Penny Caldicott, President, Australasian
Integrative Medicine Association, Committee Hansard, 9 July 2021, p. 11; Dr Antonio Di Dio, AMA, Committee Hansard, 8 July 2021, p. 1; Confidential Submission 49.
5 Dr Adrian Sheen, Director, Australian Doctors Federation, Committee Hansard, 9 July 2021, p. 4. See
also evidence from Dr Anchita Karmakar, Chief Executive Officer, Australian Health Practitioners Advisory Solutions, Committee Hansard, 9 July 2021, p. 6.
6 Dr Antonio Di Dio, AMA, Committee Hansard, 8 July 2021, p. 1.
7 Dr Kelly Nickels, Joint Acting General Manager, Professional Conduct, Avant Mutual Group,
Committee Hansard, 8 July 2021, p. 52.
8 Dr Michael Wright, Chair, Expert Committee—Funding and Health System Reform, Royal
Australian College of General Practitioners (RACGP), Committee Hansard, 8 July 2021, p. 3.
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4.9 The Medical Consumers Association’s submission described the impact on a practitioner’s business: ‘[d]elays and appeals, even successful appeals … allows time for their reputation to be ruined and for competitors to capture their market niche’.9
Addressing the stress of the notifications process 4.10 AHPRA told the committee that there has been an increased focus on acknowledging and mitigating the significant emotional and professional impact of a notification on a health practitioner.10
4.11 A range of resources have been developed to help practitioners to understand the notifications process, including addressing common myths and misunderstandings that commonly cause practitioners stress with the process.11
4.12 The committee also heard that AHPRA staff have been trained and provided resources and support to respond to people in distress and threatening self-harm or suicide. 12
4.13 It was also acknowledged to the committee that improving timeliness would significantly reduce the stress of the notifications process. According to AHPRA:
We recognise that for registered health practitioners, having a concern raised about them is very stressful. Making sure that our regulatory processes are timely is an important part of addressing that stress.13
4.14 However, as discussed further below, inquiry participants suggested that the existing supports available to health practitioners are lacking, and that more can be done to prevent harm.14
4.15 Former AHPRA employee, Mr David Gardner, observed that a restriction or suspension of registration can result in ‘huge losses for a practitioner’ but that there is no compulsion or incentive for the national regulators to resolve matters quickly. He suggested there should be a compensation scheme for practitioners, as is provided for in the Queensland legislation.15
9 Medical Consumers Association, Submission 115, p. 8.
10 Australian Health Practitioner Regulation Agency (AHPRA), correspondence received 5 August
2020, p. 2.
11 AHPRA, correspondence received 5 August 2020, p. 2.
12 AHPRA, correspondence received 5 August 2020, p. 2.
13 AHPRA and the national boards, Submission 78, p. 11.
14 See discussion below under ‘Support and prevention’.
15 Mr David Gardner, Submission 118, [p. 2].
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Vexatious complaints 4.16 The committee heard that vexatious complaints are some of the most distressing notifications received by health practitioners, as they are intended to bully or harass a practitioner, as a result of a commercial dispute, or for
other inappropriate reasons.16
4.17 In its submission, Australian Health Practitioners Advisory Solutions said:
AHPRA has allowed itself to become weaponized such that complainants, who are commonly other doctors, are able to further their own interests by using AHPRA to hurt, slow down or distract their competitors.17
Impact on practitioners 4.18 The committee heard about the significant personal impact vexatious complaints have on practitioners.18 Dr Di Dio of the AMA told the committee these notifications can be devastating:
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.19
4.19 In its submission, the Australian College of Midwives said vexatious complaints can lead to longstanding trauma, particularly as the notification process can take months or years to finalise.20
Prevalence 4.20 APHRA’s 2017 report Reducing, identifying and managing vexatious complaints found vexatious complaints account for less than one per cent of notifications received, and said there is greater risk of people not reporting concerns than of
people making truly vexatious complaints. The report noted:
Many stakeholders apply a loose definition in which ‘vexatious complaint’ means any complaint that does not result in substantive regulatory action
16 See, for example, AMA, Submission 7, p. 11; Australian College of Nursing, Submission 12, p. 4;
Confidential Submission 47.
17 Australian Health Practitioners Advisory Solutions, Submission 23, p. 4.
18 See, for example, Dr Di Dio, AMA, Committee Hansard, 8 July 2021, p.6; Adjunct Professor Kylie
Ward, Chief Executive Officer, Australian College of Nursing, Committee Hansard, 8 July 2021, p. 16; Australian Health Practitioners Advisory Solutions, Submission 23, p. 4; Confidential Submission 90.
19 Dr Di Dio, AMA ACT, Committee Hansard, 8 July 2021, p.6.
20 Australian College of Midwives, Submission 18, p. 4.
71
(that is, defined by its outcome), or causes unpleasant experiences for the subject (that is, defined by its effect on the subject).21
4.21 Ms Leanne Boase, President of the Australian College of Nurse Practitioners, told the committee that this proportion may not be accurate, and in her experience the number of vexatious notifications is much higher.22 Dr Di Dio of the AMA agreed:
I think it is higher than AHPRA claim. I don't think that they're being misleading in any way. Anecdotally, I feel that, across the hundreds of doctors that I know, the number is higher than that. Furthermore, even one per cent of 13,000 notifications is 130 people last year alone.23
4.22 The Australian College of Midwives observed that the notifications process has difficulties separating ‘negligence and malpractice from personal grievances’.24
Actions taken by AHPRA 4.23 The committee’s previous inquiry raised concerns about how vexatious notifications are handled, and recommended AHPRA and the national boards develop a framework for identifying and dealing with these complaints.25
4.24 In December 2020, AHPRA published a guide for staff to assist them in identifying and dealing with vexatious notifications.26 In addition, the code of conduct for doctors was revised by the Medical Board of Australia to clarify what constitutes a vexatious complaint, and to explicitly require practitioners to not make these types of notifications about other practitioners.27
4.25 The new framework was welcomed by some inquiry participants, although it was suggested AHPRA needs more resources to make it work efficiently.28
4.26 However, AHPRA’s Community Reference Group said the new framework does not sufficiently clarify the definition of ‘vexatious’. It also suggested the framework may inadvertently act as a disincentive to consumers from making
21 Jennifer Morris, Dr Rachel Canaway, A/Prof Marie Bismark, University of Melbourne, Reducing,
identifying and managing vexatious complaints: summary report of a literature review prepared for the Australian Health Practitioner Regulation, November 2017, p. 4.
22 Ms Boase, Australian College of Nurse Practitioners, Committee Hansard, 8 July 2021, p. 16.
23 Dr Di Dio, AMA, Committee Hansard, 8 July 2021, p. 12.
24 Australian College of Midwives, Submission 18, p. 4.
25 See Recommendation 2, Senate Community Affairs References Committee, Complaints mechanism
administered under the Health Practitioner Regulation National Law, May 2017 (2017 Inquiry Report).
26 AHPRA and the national boards, Submission 78, Appendix C, p. 2; AHPRA, A framework for
identifying and dealing with vexatious notifications, December 2020.
27 AHPRA and the national boards, Submission 78, Appendix C, p. 2; AHPRA, A framework for
identifying and dealing with vexatious notifications, December 2020, p. 2.
28 Dr Antonio Di Dio, AMA, Committee Hansard, 8 July 2021, pp. 7-8; Dr Michael Wright, RACGP,
Committee Hansard, 8 July 2021, p. 3.
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complaints instead of deterring practitioners, who are the people most likely to make vexatious complaints:
Without a more considered and clear definition of what a ‘vexatious’ complaint is, any efforts to curb or prevent them run the risk of failing to achieve their stated aims, while also putting the public at risk by casting an unduly broad net that falsely or inappropriately labels (or threatens to label) legitimate concerns as ‘vexatious’.29
4.27 AHPRA acknowledged that identifying a vexatious complaint is inherently difficult because it demands an assessment of the motivations of the notifier. It noted that since the new framework was introduced, AHPRA staff has been trained to identify potential indicators of vexatiousness and question notifiers and practitioners about vexatious motivations. It told the committee:
The framework is being applied by Ahpra staff when triaging notifications and since its introduction very few notifications have been identified as vexatious. However, it is relatively early to have data trends since the publication of the framework.30
4.28 The National Health Practitioner Ombudsman, Ms Richelle McCausland, advised the committee that she would formally review the new framework for its effectiveness in December 2021.31
Penalties and compensation 4.29 A number of submitters called for compensation for the ‘emotional, psychological, social, professional and financial strain and stress as a consequence of such ill-founded investigations’. They also said notifiers who
make vexatious complaints should be made to sign a statutory declaration or penalised to create a significant deterrent.32
4.30 One of the recommendations from the committee’s previous inquiry was to consider making compensation available to health practitioners the subject of vexatious complaints. The Australian Government responded that it ‘does not
29 AHPRA Community Reference Group, Submission 78, Attachment 2, pp. 4-5, 12.
30 AHPRA and the national boards, answers to written questions on notice (received 20 September
2021), p. 3.
31 Ms Richelle McCausland, National Health Practitioner Ombudsman and National Health
Practitioner Privacy Commissioner (NHPO), Committee Hansard, 22 September 2021, p. 14; NHPO, Submission 79, pp. 52-53.
32 Australian College of Midwives, Submission 18, p. 9. See also Australia and New Zealand
Association of Oral and Maxillofacial Surgeons, Submission 10, p. 4; Australian Association of Psychologists, Submission 73, p. 9; Australian Health Practitioners Advisory Solutions, Submission 23, p. 4; Confidential Submission 43.
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support actions that could discourage people from raising their concerns with AHPRA’.33
Anonymous notifications 4.31 Concerns were also raised by witnesses about notifications that are made anonymously. Witnesses reported that anonymous complaints are difficult to deal with because the practitioner has little or no context for their response.
They also said that natural justice implies the respondent has a right to know who the complainant is.34
4.32 Dr Zena Burgess, Chief Executive Officer of the Australian Psychological Society, said anonymous complaints are a ‘huge concern’ and called for AHPRA to screen out these notifications more effectively.35
4.33 Dr Anchita Karmakar, Chief Executive Officer of Australian Health Practitioners Advisory Solutions went further, and told the committee that anonymous complaints should not be permitted because the subsequent investigation can have devastating effects:
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.36
The role of anonymous complaints 4.34 Ms Sue Dawson, the Health Care Complaints Commissioner for New South Wales, told the committee that there are good reasons why a notifier may wish to remain anonymous, such as fear of retribution.37
4.35 Mr Stephen Mason, Chief Executive Officer of the Australian Patients Association, agreed and said anonymous complaints often come from within the healthcare sector:
33 2017 Inquiry Report, pp. ix-x; Australian Government, Response to the Senate Community Affairs
References Committee report: Complaints mechanism administered under the Health Practitioner Regulation National Law, August 2018, pp. 4-5.
34 Ms Georgie Haysom, Head of Research, Education and Advocacy, Avant Mutual Group,
Committee Hansard, 8 July 2021, p. 54; Dr Zena Burgess, Chief Executive Officer, Australian Psychological Society (APS), Committee Hansard, 8 July 2021, p. 30; Dr Anchita Karmakar, Chief Executive Officer, Australian Health Practitioners Advisory Solutions (AHPAS), Committee Hansard, 9 July 2021, p. 7.
35 Dr Zena Burgess, APS, Committee Hansard, 8 July 2021, pp. 30-31.
36 Dr Anchita Karmakar, AHPAS, Committee Hansard, 9 July 2021, p. 7.
37 Ms Sue Dawson, Commissioner, NSW Health Care Complaints Commission, Committee Hansard,
22 September 2021, p. 10.
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… they could be a nurse or someone at a clinic—and they fear for their job. They know what happens to whistle-blowers; they often end up getting persecuted or lose their job.38
4.36 A review of AHPRA’s confidentiality safeguards by the National Health Practitioner Ombudsman concluded that ‘while it is ideal if the notifier’s identity is disclosed to the practitioner’ there are circumstances where it is appropriate not to do so:
ï where there is a risk the notifier may be intimidated or harassed; ï to protect an ongoing relationship between the parties - for example, if they are colleagues; and ï to remove any perceived barriers to reporting concerns.39
Regulatory approach 4.37 Mr Matthew Hardy, National Director of Notifications at AHPRA, told the committee that under the current laws anyone can make a notification— including anonymously. He noted that it is up to AHPRA to determine
whether the anonymous notification is serious enough to warrant action.40
4.38 The committee heard that in NSW, the HCCC also investigates anonymous complaints if a serious concern about potential harm has been raised.41 However, notifiers are cautioned that if they chose to make an anonymous complaint, it may be difficult to investigate, and the inability to clarify information may mean an investigation needs to be discontinued.42
4.39 The committee also heard that in NSW, there are penalties for making false allegations in notifications, which can act as a deterrent to frivolous or vexatious notifications.43
4.40 The National Health Practitioner Ombudsman, in its review of AHPRA’s confidentiality safeguards, noted that in other jurisdictions it is an offence to
38 Mr Stephen Mason, Chief Executive Officer, Australian Patients Association, Committee Hansard,
8 July 2021, p. 59.
39 NHPO, Review of confidentiality safeguards for people making notifications about health practitioners,
December 2019, p. 4.
40 Mr Matthew Hardy, National Director, Notifications, AHPRA, Committee Hansard, 22 September
2021, p. 46.
41 Ms Sue Dawson, Commissioner, NSW Health Care Complaints Commission, Committee Hansard,
22 September 2021, p. 10.
42 Health Care Complaints Commission, Frequently Asked Questions - Health Consumers,
https://www.hccc.nsw.gov.au/health-consumers/frequently-asked-questions-health-consumers, (accessed 3 November 2021).
43 Ms Sue Dawson, Commissioner, NSW Health Care Complaints Commission, Committee Hansard,
22 September 2021, p. 10.
75
harm or intimidate a person who has made a complaint about a practitioner however there is no such offence under the National Law.44
Mandatory reporting 4.41 Under the National Law, registered health practitioners, employers and health education providers are required to make a mandatory notification to AHPRA about a health professional’s conduct if it poses a risk to the public.
4.42 This includes concerns about a practitioner’s physical or mental impairment, intoxication while practising, any significant departure from accepted professional standards and sexual misconduct.45
4.43 The committee heard that the mandatory reporting requirements are preventing health professionals who might be unwell from seeking help and treatment.46
4.44 For example, Dr John Quinn of the Royal Australasian College of Surgeons, told the committee his organisation is ‘concerned that doctors may delay seeking help, or not seek help at all for treatable mental health issues, which further endangers the doctor and also puts patients at risk’.47
4.45 Evidence from the AMA added that the fear of consequences remains a ‘palpable barrier’ to doctors seeking help. According to Dr Di Dio:
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.48
Western Australian model 4.46 In Western Australia, health professionals are exempt from mandatory reporting obligations for practitioners and students in their care, but they may choose to make a voluntary notification to protect public safety.49
4.47 In 2011, an inquiry by the Senate Standing References Committee on Finance and Public Administration recommended:
44 NHPO, Review of confidentiality safeguards for people making notifications about health practitioners,
December 2019, p. 4.
45 AHPRA website, Making a mandatory notification,
https://www.ahpra.gov.au/Notifications/mandatorynotifications/Mandatory-notifications.aspx, (accessed 21 October 2021).
46 Dr Michael Wright, RACGP, Committee Hansard, 8 July 2021, p. 8; Associate Professor Lakra,
College of Psychiatrists, Committee Hansard, 8 July 2021, p. 8; Dr Antonio Di Dio, AMA, Committee Hansard, 8 July 2021, p. 2.
47 Dr Quinn, Royal Australasian College of Surgeons, Committee Hansard, 8 July 2021, p. 4.
48 Dr Antonio Di Dio, AMA, Committee Hansard, 8 July 2021, p. 2.
49 AHPRA, Guidelines: Mandatory notifications about registered health practitioners, March 2020, p. 2.
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… the Commonwealth Government seek the support of the Australian Health Workforce Ministerial Council to implement a review of the mandatory notifications requirements and in particular take into account the Western Australia model of mandatory reporting.50
4.48 Then in 2014, the Council of Australian Governments (COAG) Health Council commissioned an independent review of the National Scheme, which also recommended the National Law be amended to ‘reflect the same mandatory notification exemptions for treating practitioners established in the Western Australian law.’51
4.49 In response, the National Law was amended in 2019 to raise the threshold for health professionals to make a mandatory notification about a practitioner under their care. The amendments changed the reporting obligations for treating practitioners by establishing a higher risk threshold for treating practitioners to report impairment, intoxication or practice that significantly departs from accepted professional standards.52
Further reforms needed 4.50 The committee heard that the 2019 reforms are welcome but do not go far enough. Inquiry participants called for the Western Australian model to be adopted in its entirety.53 Avant Mutual told the committee the reforms would:
… reduce real and perceived barriers to treatment, so that doctors can obtain the treatment they need without the fear of being reported, and the potential impacts on their personal and professional lives.54
4.51 The Royal Australasian College of Surgeons’ submission argued the Western Australian model would further protect the public from risk, as doctors who seek treatment will ‘in fact be more likely to provide safe care for the community’.55
50 Senate Standing References Committee on Finance and Public Administration, The administration of
health practitioner registration by the Australian Health Practitioner Regulation Agency (AHPRA), 3 June 2011, p. xii.
51 Mr Kim Snowball, Independent Review of the National Registration and Accreditation Scheme for health
professions - final report, December 2014, p. 6.
52 AHPRA, Revised guidelines on mandatory notifications released,
https://www.ahpra.gov.au/News/2020-02-07-revised-guidelines-mandatory-notifications.aspx, (accessed 21 October 2021).
53 Dr Michael Wright, Chair, Expert Committee—Funding and Health System Reform, Royal
Australian College of General Practitioners and Associate Professor Lakra, College of Psychiatrists, Committee Hansard, 8 July 2021, p. 8.
54 Avant Mutual, Submission 3, page 9.
55 Royal Australasian College of Surgeons, Submission 30, p. 6.
77
4.52 The AMA explained the Western Australian model would also reduce the impacts on doctors’ personal lives, as their families suffer when a practitioner is unwell and does not seek treatment. The submission concluded:
With no evidence that the WA model is doing anything other than improving practitioner health, and therefore, improving consumer protection, the AMA believes that Australia should choose to implement the tried and tested WA model. There appears to be no reason not to adopt the WA model as a first choice. It has the benefit of not only being simple, but having been proven to work, with no downsides, and supported by most peak groups.56
4.53 The National Health Practitioner Ombudsman, Ms Richelle McCausland, told the committee that it is ‘critical that barriers to health practitioners seeking treatment are eliminated or reduced wherever possible’.57
Support and prevention 4.54 A number of participants in the inquiry said that because the impact the notifications process can have on a practitioner is so significant, more extensive support mechanisms are required.58
4.55 For example, Optometry Australia submitted that the support services offered by AHPRA are too generic, and questioned whether health practitioners would pursue these avenues for support in the context of a notification.59
4.56 The Pharmacy Guild of Australia suggested that information and support for pharmacists is falling to professional indemnity insurances and the Pharmacist Support Services, and that AHPRA’s approach lacks ‘human contact’.60
Existing supports 4.57 Currently, the national boards fund specific support services for medical practitioners, dentists, pharmacists, nurses and midwives who are the subject of a notification, but not for the other professions.61
4.58 Dr Anne Tonkin, Chair of the Medical Board of Australia, told the committee:
56 Australian Medical Association, Submission 7, pp. 7-8.
57 Ms Richelle McCausland, National Health Practitioner Ombudsman, Committee Hansard,
22 September 2021, p. 19.
58 See, for example, AMA, Submission 7, p. 7; Australian College of Nurses, Submission 12, [p. 4];
Australian College of Nurse Practitioners, Submission 13,[ p. 3]Australian College of Midwives, Submission 18, [p. 7]; Optometry Australia, Submission 20, [p. 2]; Pharmacy Guild of Australia, Submission 21, p. 7.
59 Optometry Australia, Submission 20, [p. 2].
60 Pharmacy Guild of Australia, Submission 21, p. 7.
61 AHPRA and the national boards, Submission 78, p. 10.
78
We spend about $2 million every year to fund independent doctors' health services, and we have established an expert advisory group to identify and minimise the risk of suicide in practitioners subject to regulatory action.62
4.59 When making initial contact with a practitioner about a notification, AHPRA provides information about these services (if relevant), and also advises the practitioner to seek help from their insurer, legal advisor or professional association.63
4.60 The national regulators also conduct campaigns to encourage practitioners to seek help for their health and wellbeing during the notification process.64
Improving supports 4.61 Ms Annie Butler, Federal Secretary of the Australian Nursing and Midwifery Federation, said a greater level of support is needed than is currently provided. She cited the Nursing and Midwifery Health Program in Victoria as
a good example, which has more comprehensive mental health support as well as services for employers and managers.65
4.62 The Australian College of Nurse Practitioners submitted that having peer support would assist greatly through the process, along with an independent and confidential counselling services for health professionals following notification and during any investigation.66
4.63 Several peak bodies suggested the regulators could alert the relevant professional association when a practitioner receives a notification, as well as after an investigation has been finalised, so it can assist the respondent with support, education and supervision if required. They acknowledged the respondent’s agreement would be needed for this to occur.67
62 Dr Anne Tonkin, Chair, Medical Board of Australia, Committee Hansard, 22 September 2021, p. 39.
63 AHPRA and the national boards, Submission 78, p. 10.
64 AHPRA and the national boards, Submission 78, pp. 2, 10.
65 Ms Annie Butler, Federal Secretary, Australian Nursing and Midwifery Federation, Committee
Hansard, 8 July 2021, p. 17; and the Nursing and Midwifery Health Program Victoria’s website, Our Service, https://www.nmhp.org.au/about-our-service.html, (accessed 22 October 2021).
66 Australian College of Nurse Practitioners, Submission 13,[ p. 3].
67 Royal Australasian College of Surgeons, Submission 30, p. 4; Australian Physiotherapy Association,
Submission 29, pp. 3-4; and Associate Professor Lakra, College of Psychiatrists, Committee Hansard, 8 July 2021, p. 9.
79
Proactive education 4.64 The committee heard AHPRA and the national boards should be taking a more active role in preventing patient harm, rather than only acting after a concern has been raised with them.68
4.65 Ms Patricia Hall, a member of the AHPRA Community Reference Group, told the committee that even though the primary role of AHPRA is to protect the public, its work is ‘completely reactionary’.69
4.66 Associate Professor Lakra, of the College of Psychiatrists, said if AHPRA took a more proactive and educative approach the incidence of notifications would be reduced, which would benefit both practitioners and regulators. He noted that:
I think there is more that a regulatory scheme can do to prevent people from being in situations where their conduct is notified to AHPRA.70
4.67 Witnesses suggested this could be achieved by working more closely with the professional associations, for example by sharing data about the most prevalent types of notifications so the associations could develop targeted information and education for their members.71
4.68 The Australian Commission on Safety and Quality in Health Care’s submission said it is collaborating with the national regulators on raising awareness of the clinical governance responsibilities of practitioners, and encouraging compliance with the National Safety and Quality Health Service Standards.72
4.69 In its submission, AHPRA said it has developed a wide range of resources and communication products to support registration standards, codes and guidelines. It said, ‘[w]e have an increased focus on our work in this area as a key mechanism by which we can support safe and professional practice by registered health practitioners.’73
68 See, for example, Australian Healthcare and Hospitals Association, Submission 1, p. 3;
Associate Professor Lakra, College of Psychiatrists, Committee Hansard, 8 July 2021, p. 10; Ms Patricia Hall, Member, Community Reference Group, Australian Health Practitioner Regulation Agency, Committee Hansard, 22 September 2021, p. 53.
69 Ms Hall, AHPRA Community Reference Group, Committee Hansard, 22 September 2021, p. 53.
70 Associate Professor Lakra, College of Psychiatrists, Committee Hansard, 8 July 2021, p. 10.
71 Associate Professor Lakra, College of Psychiatrists, Committee Hansard, 8 July 2021, p. 9; Ms Renae
Beardmore, National Vice President, Pharmaceutical Society of Australia, p. 23; and Mr Ian Cooper, Chair, National Professional Standards Panel, Australian Physiotherapy Association, p. 38.
72 Australian Commission on Safety and Quality in Health Care, Submission 24, pp. 2-3.
73 AHPRA and the national boards, Submission 78, p. 3.
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Notifiers experience 4.70 As discussed in Chapter 3, notifiers can experience disappointment with the process, because the focus is on health practitioners’ conduct and behaviour, and not on providing a remedy to the notifier.74
4.71 In its submission, Maurice Blackburn said the National Scheme is not consumer-focused, which has led to a perception that the national regulators ‘look after their own,’ and that ‘[n]otifiers have reported feeling more like by-standers than someone directly involved in such a process’.75
4.72 Mr Stephen Mason, Chief Executive Officer of the Australian Patients Association, provided similar evidence noting that consumers feel there is an ‘inherent bias against the patient. They feel the whole system is geared in favour of the healthcare professional’.76
4.73 The Australian Healthcare and Hospitals Association’s submission said that even deciding to come forward with a concern can be difficult for a consumer:
… the current system relies on individuals to bring a complaint which can be intimidating and time-consuming. Individuals can pay a significant personal cost when they challenge large institutions.77
4.74 Ms Patricia Hall of the AHPRA Community Reference Group said that if a notifier wants to challenge a decision they are at a further disadvantage because they lack supports:
Many consumers do not have the articulation, the resilience and the assistance to navigate the steps and time frames of a formal complaint, nor is there the array of support for consumers that there is for health practitioners. At the same time, the consumer notifier may actually be a victim of unsafe or unprofessional actions of health practitioners.78
4.75 It was suggested to the committee that because the complainant does not have the opportunity to refute or challenge what has been said about them, the regulator only receives part of the story. This results in a lack of trust in the process.79
74 See discussion in Chapter 3, paragraph 3.13 to 3.16.
75 Maurice Blackburn, Submission 74, p. 2.
76 Mr Stephen Mason, Chief Executive Officer, Australian Patients Association, Committee Hansard,
8 July 2021, p. 57.
77 Australian Healthcare and Hospitals Association, Submission 1, p. 2.
78 Ms Hall, AHPRA Community Reference Group, Committee Hansard, 22 September 2021, p. 38.
79 Mr Mason, Australian Patients Association, Committee Hansard, 8 July 2021, p. 60.
81
4.76 The AHPRA Community Reference Group noted that consumers regularly raise concerns that the information they have given to the national boards was not properly understood or considered.80
4.77 AHPRA and the national boards said the service they provide to notifiers has improved since 2018, with changes to the National Law enabling AHPRA to provide more information to a notifier once the notification is closed.81
4.78 In its submission, AHPRA said it has also adopted the practice of calling notifiers (and practitioners) before sending a final outcomes letter to explain the reasons for the decision.82
Committee view 4.79 The committee was deeply concerned and moved by the stories it has heard regarding the devastating impact of a notification on some health practitioners.
4.80 The committee acknowledges that there is a significant amount of stress involved in the notifications process for practitioners. This is unduly exacerbated by a range of issues with the process, including how regulators communicate with parties, a lack of understanding and transparency about the process, and of course, because of protracted timeframes and delays.
4.81 As discussed in the previous chapter, the committee is concerned with persistent issues with delay, communication and transparency in the notifications process. The committee is strongly of the view that AHPRA and the national boards must continue to prioritise reforms that will improve health practitioners’ and notifiers experience with the process.
4.82 To facilitate this improvement, the committee believes all registered health practitioners subject to a notification should have the right to request to meet in-person with any official undertaking a preliminary assessment or subsequent investigation.
4.83 Vexatious notifications pose significant challenges for health practitioners, and the committee recognises that the prevalence of these types of matters is of ongoing concern within many professions. The committee is pleased that AHPRA has revised and implemented a new vexatious complaints policy, however it is early in its operation, and will need to be closely monitored and reviewed with the assistance of the National Health Practitioner Ombudsman.
4.84 The committee was alarmed to hear about the detrimental impact of the mandatory reporting regime in the National Scheme. The evidence provided to the committee on the mental health risks within the medical profession, and
80 Ms Hall, AHPRA Community Reference Group, Committee Hansard, 22 September 2021, p. 38.
81 AHPRA and national boards, Submission 78, pp. 10-11.
82 AHPRA and national boards, Submission 78, pp. 10-11.
82
the need to encourage and support practitioners to seek out help when they are unwell, was particularly compelling.
4.85 The arguments for a move away from the current mandatory reporting model to the Western Australian model were equally compelling. The committee notes that in addition to broad support amongst peak bodies, the Western Australian model was recommended to be adopted nationally by an independent review of the national scheme.
Recommendation 13
4.86 The committee recommends that the Ministerial Council agrees to remove the current mandatory reporting requirements and align the approach with the Western Australian model.
4.87 The committee is strongly of the view that the approach to providing support and preventing issues that result in notifications must be prioritised by AHPRA and the national boards.
4.88 The strong message coming through this inquiry is that dealing with notifications is stressful, and although improvements to the process will make a significant difference to practitioners’ experience, there must be greater accessibility to appropriate supports.
4.89 The committee notes that the approach differs between professions, and that the national boards fund support services for some of professions and not others. The committee encourages AHPRA and the national boards to consult broadly with professions about what is needed and address gaps in supports services as a matter of urgency.
Recommendation 14
4.90 The committee recommends that AHPRA and the national boards develop and fund a comprehensive strategy for providing tailored support for the notifications process to practitioners in all regulated professions.
Senator Janet Rice Chair
83
Appendix 1
Submissions and additional information
Submissions 1 Australian Healthcare and Hospitals Association 2 Australian Doctors’ Federation ï 1 Attachment
3 Australian Acupuncture and Chinese Medicine Association 4 Health Chief Executives Forum 5 Australian Psychological Society 6 Australian Association of Social Workers 7 Australian Medical Association 8 Queensland Nurses and Midwives’ Union 9 Office of the Health Ombudsman 10 Australian and New Zealand Association of Oral and Maxillofacial Surgeons 11 Royal Australian and New Zealand College of Radiologists 12 Australian College of Nursing 13 Australian College of Nurse Practitioners 14 Pharmaceutical Society of Australia 15 Amnesty International
ï 15.1 Confidential
16 Australian Council of Deans of Health Science 17 MIGA
18 Australian College of Midwives 19 Royal Australian College of General Practitioners 20 Optometry Australia 21 Pharmacy Guild of Australia 22 RISE: Refugees, Survivors and Ex-Detainees 23 Australian Health Practitioners Advisory Solutions 24 Australian Commission on Safety and Quality in Health Care 25 Australian Nursing and Midwifery Federation 26 Universities Australia 27 Occupational Therapy Australia 28 Royal Australian and New Zealand College of Psychiatrists 29 Australian Physiotherapy Association 30 Royal Australasian College of Surgeons 31 Australasian Integrative Medicine Association
ï 31.1 Supplementary submission
32 Association of Family and Conciliation Courts, Australian Chapter 33 Avant Mutual
84
34 Australian and New Zealand College of Anaesthetists 35 Dr Kerry Breen ï 6 Attachments
36 Confidential 37 Confidential 38 Confidential 39 Confidential 40 Dr Gerrit Reimers 41 Confidential 42 Confidential 43 Confidential 44 Confidential 45 Name Withheld 46 Confidential 47 Confidential 48 Confidential 49 Confidential 50 Name Withheld 51 Confidential 52 Confidential 53 Confidential 54 Name Withheld 55 Confidential 56 Confidential 57 Confidential 58 Dr Mandy Truong 59 Confidential 60 Confidential 61 Confidential 62 Confidential 63 Confidential 64 Confidential 65 Confidential 66 Confidential 67 Confidential 68 Confidential 69 Confidential 70 Health Professionals Australia Reform Association 71 Australasian Society of Aesthetic Plastic Surgeons
ï 71.1 Supplementary submission
72 Australian Patients Association ï 72.1 Supplementary submission
85
73 Australian Association of Psychologists incorporated 74 Maurice Blackburn 75 Lyme Disease Association of Australia and Sarcoidosis Lyme Australia 76 Operation Redress 77 Christian Medical and Dental Fellowship of Australia 78 Australian Health Practitioner Regulation Agency and the National Boards 79 National Health Practitioner Ombudsman 80 Type 1 Voice 81 Human Rights Law Alliance
ï 81.1 Confidential
82 Dr Peter Goss ï 3 Attachments
83 Confidential 84 Confidential 85 Confidential 86 Dr Jeremy Rourke 87 Confidential 88 Confidential 89 Confidential 90 Confidential 91 Confidential 92 Confidential 93 Confidential 94 Confidential 95 Confidential 96 Confidential 97 Confidential 98 Confidential 99 Confidential 100 Confidential 101 Confidential 102 Confidential 103 Mr Steve Marshall 104 Confidential 105 Confidential 106 Confidential 107 Confidential 108 Confidential 109 Confidential 110 Confidential 111 Confidential 112 Confidential
86
113 Healthcare Excellent Institute Australia: AHPRA-Change Working Party ï 3 Attachments
114 Confidential 115 Medical Consumers Association ï 6 Attachments
116 Confidential 117 Confidential 118 Mr David Gardner 119 Confidential 120 Confidential 121 Confidential 122 Confidential 123 Confidential 124 Confidential 125 Mr Graham Beaumont 126 Australasian College of Cosmetic Surgery and Medicine
ï 126.1 Supplementary submission
127 Confidential 128 Confidential 129 Name Withheld 130 Confidential 131 Confidential 132 Mr Justin Nixon 133 Ms Lauren Hewish 134 Dr Margaret Faux 135 Confidential 136 Name Withheld 137 Confidential 138 Confidential
ï 1 Attachment
139 Confidential 140 Confidential 141 Confidential 142 Confidential 143 Confidential
ï 4 Attachments 144 Australian Medical Association Victoria
87
Additional information 1 Australian Health Practitioner Regulation Agency and National Boards, correspondence, 5 August 2020 2 Medical Boards of Australia, Good Medical Practice: a Code of Conduct for
Doctors in Australia, 1 October 2020 3 Additional information from the Australasian College of Cosmetic Surgery and Medicine in response to evidence given at the public hearing on 9 July 2021,
received 11 October 2021
Answers to question on notice 1 Answer to question taken on notice during 9 July public hearing, received from Australian Doctors Federation, 9 July 2021 2 Answer to question taken on notice during 8 July public hearing, received from
Pharmacy Guild of Australia, 30 July 2021 3 Answer to question taken on notice during 8 July public hearing, received from Royal College of General Practitioners, 2 August 2021 4 Answer to question taken on notice during 8 July public hearing, received from
Australian Medical Association, 10 August 2021 5 Answer to written question taken on notice, received from Australian Health Practitioner Regulation Agency, 20 September 2021. 6 Answer to written question taken on notice, received from Health Care
Complaints Commission NSW, 16 September 2021 7 Answer to written question taken on notice, received from National Health Practitioner Ombudsman, 20 September 2021 8 Answer to written question taken on notice, received from Office of the Health
Ombudsman Queensland, 20 September 2021 9 Answers to questions taken on notice asked during 22 September hearing, received from the National Health Practitioner Ombudsman, 11 October 2021 10 Answers to questions taken on notice asked during 22 September hearing,
received from the NSW Health Care Complaints Commission, 11 October 2021 11 Answers to written questions on notice, received from the Australasian Society of Aesthetic Plastic Surgeons, 11 October 2021 12 Answers to questions taken on notice asked during 22 September hearing,
received from the Australian Health Practitioner Regulation Agency, 11 October 2021 13 Answers to written questions on notice, received from the Australasian College of Cosmetic Surgery and Medicine, 11 October 2021 14 Answers to written questions on notice, received from the NSW Health Care
Complaints Commission, 19 October 2021 15 Answers to questions taken on notice asked during 22 September hearing, received from the Department of Defence, 25 October 2021 16 Answers to questions taken on notice, received from the Australian Health
Practitioner Regulation Agency,18 November 2021
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17 Answers to questions taken on notice, received from the Australian Health Practitioner Regulation Agency, 17 December 2021
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Appendix 2 Public hearings
Thursday, 8 July 2021 Committee Room 2S1 Parliament House Canberra
Australian Medical Association ï Dr Antonio Di Dio, Board Member
Royal Australian College of General Practitioners ï Dr Michael Wright, Chair, Expert Committee, Funding and Health System Reform
Royal Australasian College of Surgeons ï Dr John Quinn, Executive Director Surgical Affairs
Royal Australian and New Zealand College of Psychiatrists ï Associate Professor Vinay Lakra, President
Australian College of Nursing ï Adjunct Professor Kylie Ward, Chief Executive Officer
Australian College of Nurse Practitioners ï Ms Leanne Boase, President
Australian Nursing and Midwifery Federation ï Ms Annie Butler, Federal Secretary ï Ms Julie Reeves, Professional Officer
Pharmacy Guild of Australia ï Dr Philip Chindamo, Chief Economist ï Ms Claire Bekema, Australian National Manager, Policy and Regulation
Pharmaceutical Society of Australia ï Ms Renae Beardmore, Vice President ï Mr Mark Kinsela, Chief Executive Officer
Australian Psychological Society ï Dr Zena Burgess, Chief Executive Officer
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Australian Association of Psychologists ï Ms Anne Marie Collins, President ï Ms Tegan Carrison, Executive Director
Occupational Therapy Australia ï Dr Carol McKinstry, President
Australian Physiotherapy Association ï Mr Scott Willis, National President ï Mr Ian Cooper, Chair, APA National Professional Standards Panel
Australian Association of Social Workers ï Ms Cindy Smith, Chief Executive Officer
Amnesty International ï Mrs Kyinzom Dhongdue, Strategic Campaigns Associate ï Mr Shankar Kasynathan
RISE: Refugees, Survivors and Ex-Detainees ï Ms Madhuni Kumarakulasinghe, Advocacy casework coordinator ï Mr Abdul Baig, Ex-detainee RISE member and director
MIGA ï Mr Timothy Bowen, Manager, Advocacy and Legal Services
Avant Mutual Group ï Ms Georgie Haysom, Head of Research, Education and Advocacy ï Dr Kelly Nickels, Joint Acting General Manager, Professional Conduct
Maurice Blackburn Lawyers ï Mr Tom Ballantyne, Principal Lawyer
Australian Patients Association ï Mr Stephen Mason, Chief Executive Officer
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Friday, 9 July 2021 Committee Room 2S1 Parliament House Canberra
Health Professionals Australia Reform Association ï Mr Russell Broadbent, Chair
Australian Doctors Federation ï Dr Chris Davis, Physician, Director, ADF ï Dr Adrian Sheen, GP, Director, ADF ï Mr Stephen Milgate, Chief Executive Officer
Australian Health Practitioners Advisory Solutions ï Dr Anchita Karmakar, Chief Executive Officer
Australasian Integrative Medicine Association ï Dr Penny Caldicott, President ï Ms Cressida Hall, General Manager
Lyme Disease Association of Australia ï Ms Sharon Whiteman, Chief Executive Officer and President
Sarcoidosis and Lyme Disease Support Australia ï Ms Elaine Kelly, Secretary
Christian Medical and Dental Fellowship ï Professor John Whitehall, National Chair
Human Rights Law Alliance ï Mr John Steenhof, Principle Lawyer
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Wednesday, 22 September 2021 Committee Room 2S1 Parliament House Canberra
Australasian Society of Aesthetic Plastic Surgeons ï Dr Robert Sheen, President ï Dr Amira Sanki, Vice President ï Dr Naveen Somia, Immediate Past President ï Dr Leana Teston, Member
Australasian College of Cosmetic Surgery ï Mr Patrick Tansley, President ï Dr Daniel Flemming, Past President
Health Care Complaints Commission New South Wales ï Ms Sue Dawson, Commissioner
Office of the Health Ombudsman Queensland ï Mr Andrew Brown, Ombudsman
National Health Practitioner Ombudsman ï Ms Richelle McCausland, Ombudsman and National Health Practitioner Privacy Commissioner ï Mr Chris Jensen, Manager, Complaints and Freedom of Information
Australian Commission on Safety and Quality in Health Care ï Ms Naomi Poole, Director, Strategy and Innovation ï Mr Christopher Leahy, Director, eHealth and Medication Safety ï Professor Anne Duggan, Chief Medical Officer
Professor Merrilyn Walton AM ï Professor of Medical Education, Faculty of Medicine and Health, University of Sydney
Professor Emerita Mary Chiarella AM ï Professor of Nursing, Susan Wakil School of Nursing and Midwifery, University of Sydney
Department of Defence ï Mr Tony Fraser, Deputy Secretary, Capability Acquisition and Sustainment Group ï Ms Kylie Scholten, First Assistant Secretary Integration, Capability
Acquisition and Sustainment Group
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ï Ms Francesca Rush, Assistant Secretary Commercial General Counsel, Capability Acquisition and Sustainment Group ï Major General Andrew Bottrell, Head Land Systems Divisions, Capability Acquisition and Sustainment Group ï Mr Grey Lynch, Director Smart Buyer and Independent Assurance,
Capability Acquisition and Sustainment Group
Australian Health Practitioner Regulation Agency and the National Boards ï Mr Martin Fletcher, Chief Executive Officer ï Ms Kym Ayscough, Executive Director, Regulatory Operations ï Mr Matthew Hardy, National Director, Notifications
AHPRA Agency Management Committee ï Ms Gill Callister PSM, Chair
AHPRA Community Reference Group & Forum of National Regulation and Accreditation Scheme Chairs ï Ms Patricia Hall, Member
Medical Board of Australia ï Dr Anne Tonkin, Chair
Psychological Board of Australia ï Ms Rachel Phillips, Chair