‘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.’ 
In 2021 the Senate Community Affairs References Committee conducted an inquiry into the Australian Health Practitioner Regulation Agency (AHPRA). The comment above was just one of many heard and tabled in the Committee’s report on 4 April 2022. The full report can be accessed here but this article provides a summary of the report and raises some questions about the Committee’s recommendations – whether they go far enough, or indeed, go too far.
The Committee’s Terms of Reference listed 12 matters for inquiry, broadly focusing on: the registration process; the handling and investigation of notifications; and the impact on health practitioners subject to notifications.
For a health practitioner to practise under a protected title, such as ‘dentist’ or ‘nurse’, they must be registered with AHPRA. Overall, the Committee was supportive of the registration standards and acknowledged their importance in ensuring that health practitioners are fully qualified and suitable to practice.
However the Committee had concerns with the use of the title ‘Cosmetic Surgeon’. There are currently no additional registration requirements for practitioners to use the title ‘Cosmetic Surgeon’. The Committee considered that this presented a substantial risk to public safety as it may mislead patients into believing that the practitioners performing cosmetic surgery are registered surgical specialists, when they may not have formal qualifications or sufficient experience in surgery. The Committee has therefore recommended reforms to the National Law to regulate the use of the title ‘surgeon’, but notes that this is only the beginning of a lengthy process. Given the current wave of media attention on cosmetic medicine and the consequent AHPRA review into cosmetic practitioners, we suspect that this recommendation will be the ‘first cab off the rank’ in terms of legislative response.
The Committee also heard of lengthy delays in the registration process, which may leave a practitioner without employment for a significant period of time. Another difficulty was the availability of supervisors and the lack of incentive for senior practitioners to take on that role.
The Committee also received evidence about the onerous nature of the re-registration process contributing to workplace shortages. As nearly all States are facing crises in workplace shortage, the Committee’s recommendations for a more flexible approach to re-registration is welcome, as is the recommendation to streamline the contact between supervisors and AHPRA.
Notifications are an important mechanism for identifying and addressing potential risks to the public. They are complaints relating to the conduct, health and performance of a health practitioner. All notifications are considered by the relevant National Board, who can take a range of regulatory action, including starting an investigation or suspending the practitioner’s registration. Notifications are also the cause of an extraordinary level of stress and anxiety for practitioners and the Committee noted that, while AHPRA had made improvements in the notifications process, there were still problems which are unacceptable. The Committee’s key concerns are outlined below.
Lack of education and awareness
The Committee heard that the public are confused about where to take their concerns, particularly in knowing whether to make a ‘notification’ as distinct from a ‘complaint’. The Queensland Health Ombudsman noted that 60% of the matters received each year do not relate to registered practitioners but rather other health services, including hospitals.
Furthermore, notifications are commonly related to employment, performance and ‘scope-of-practice’ issues, as opposed to relating to patient safety. Indeed, over 70% of all notifications conclude with no further action. This indicates that many notifications involve concerns raising no risk at all to the public and are better dealt with directly by health practices and services.
The Committee therefore recommended that notifications accepted by AHPRA be limited to those involving clinical issues relating to patient safety. We consider this to be one of the most important recommendations of the report. If it is implemented properly, it could result in not only significant benefit for practitioners, who are often invited (or compelled) to respond to notifications arising from events outside their control, but also in a significant improvement to the entire notifications system, reducing delays in the process.
Lengthy delays in the notification process
The Committee heard evidence that the timeliness of the notification process continued to be a problem. Dr Kelly Nickels of Avant Mutual Group commented:
“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.”
Even in cases where the allegations had little substance, it was still common for investigations to take more than six months to conclude.
A contributing factor to delays is that a high number of frivolous claims are not being identified and closed early. The Committee noted one example of a notification made about a practitioner who said that COVID lockdowns ‘felt like being under house arrest’. The practitioner was investigated, and after three and a half months, no further action was taken. Handling such claims takes up AHPRA’s already limited resources. As such, the Committee considered that maximum timeframes should be set on how long investigations take, such as three months, in order to minimise delays.
It is with some concern that we note that the Committee also recommended AHPRA and the National Boards undertake an analysis of the cause of protracted timeframes and identify ways to further improve timeliness. The Committee noted that consideration should be given to ‘what further decision-making powers of the national boards can be delegated to AHPRA’.
We consider that delegation of greater power to AHPRA, while possibly improving investigation timelines, would not assist transparency but instead result in greater opacity in decision-making. We note also that some decision-making power is already granted to AHPRA which does not seem to have expedited processes. We note that there is an existing framework for vexatious notifications which provides AHPRA with the power to determine a notification to be vexatious and take no further action, without the Board’s involvement. In our experience, however, this power is exercised infrequently. We consider that AHPRA should focus on exercising the powers it already has, with efficiency and transparency, before further powers are granted to it in place of the National Boards. The Boards must retain their decision-making powers when a matter involves clinical care or judgement. The Boards are composed, at least in part, of members with the requisite knowledge and experience to consider the performance and conduct of their peers. Moreover, should decision-making powers be divested to AHPRA, it is unclear how such decisions would be reported and justified. The National Law sets out the right of appeal to most of the Board’s decisions, but without written reasons for a decision made by AHPRA, the capacity to challenge or appeal a decision would be very limited. The utility of the appeal rights set out in the National Law is already limited by the fact that, in Victoria at least, appeals are unlikely to be decided by VCAT for well over six months.
Lack of transparency and communication
The Committee heard that there are systemic problems with AHPRA’s communication, including unanswered phone calls and written correspondence, and not providing updates about a matter. Under section 161 of the National Law, AHPRA is required to provide written updates at intervals of no more than three months. AHPRA’s failure to meet the statutory timeframes for written updates was considered unacceptable, and the Committee believed the implementation of a service standard should be a priority. There are currently no consequences for non-compliance with the statutory timeframes so we welcome the Committee’s recommendation. However, as the written updates provided every three months are almost invariably without detail or any indication of the likely duration of an investigation, we do not consider this recommendation will result in any improvements in genuine resolution of investigations. We consider the emphasis should be on the speedy resolution of investigations, not on ensuring that pro-forma letters are dispatched regularly throughout the investigation process. More meaningful updates would be helpful, with a likely timeline for any remaining investigation required.
The Committee further heard that AHPRA does not always provide sufficient information in order for practitioners to represent themselves fairly. On some occasions, practitioners have only become aware of documents or interviews by way of reference within the Board’s reasons. This failure to provide all information considered by the Board to the practitioner represents a serious failure to afford the practitioner with due process. Such lack of transparency does not assist in maintaining practitioners’ trust in the regulatory system.
The impact of notifications
The Committee was ‘deeply concerned’ by the impact of notifications. Not only did practitioners describe receiving a notification as ‘the worst experience of their life’, causing significant stress, shame and guilt; the notification process also had devastating consequences:
‘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.’
The Committee heard of cases where some practitioners have even suicided or experienced suicidal ideation during a notification process. Dr Adrian Sheen commented:
‘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.’
The Committee considered the impact of vexatious complaints, hearing that they can lead to longstanding trauma, especially given notifications can take months or years to resolve. We refer to our comments above about AHPRA’s apparent failure to utilise the framework given its power to resolve these matters quickly.
The Committee also heard concerns about anonymous notifications. Dr Anchita Karmakar noted investigations into anonymous complaints can have deadly consequences:
‘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.’
Finally, the Committee heard that mandatory reporting requirements and the fear of being reported prevent practitioners from seeking help and treatment. As Dr Di Dio comments:
‘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.’
Significantly, the Committee has recommended the Ministerial Council agree to remove the current mandatory reporting requirements and align the approach with the Western Australian model. We consider this recommendation should be adopted urgently. Practitioners are often, understandably, reticent to seek help for certain medical conditions for fear of being the subject of a mandatory notification by their own treating practitioner. In our experience, these notifications arise more often from mental health presentations in practitioners than they do from physical illness. Amendment to mandatory reporting requirements would represent a significant improvement for practitioners’ health and welfare, in turn resulting in better retention rates in the health system as whole. Practitioners who can safely discuss their stress and anxiety with their own treaters at an early stage, before they are dangerously unwell, will be safer practitioners who can also remain practising in the health care system at this time of intense need.
The Committee strongly encouraged AHPRA to continue prioritising reforms that will improve practitioners’ and notifiers’ experience with the notification process. This appears to be reflected in the recommendation that AHPRA and the National Boards develop and fund a comprehensive strategy for providing tailored support during the notifications process to practitioners in all regulated professions. We note that if the Committee’s other recommendations were adopted quickly, the need to provide support to practitioners would be immediately reduced. Moreover, it is not clear what support AHPRA and the Boards would, or indeed, could provide. In our experience, practitioners subject to notifications, under investigation or facing regulatory action are unlikely to confide in the very institution that is conducting the investigation or imposing regulatory action on them; one is minded of the old saying about foxes and henhouses. Rather, practitioners rely on the support and advice provided by their medical defence organisations.
While the report is a satisfying summary of the many issues practitioners face when dealing with the regulatory system, it essentially serves to highlight the extent of the problems underlying the regulatory system.
The report also details the history of previous inquiries into the operation of AHPRA and the National Law; in 2011, 2014 (the Snowball Review), 2016 and 2017. Legislative changes that arose from the 2017 review were implemented in 2017 and further changes are still waiting to be introduced in Queensland (as host jurisdiction). Thus, recommendations of the 2021 review are being added to the list of changes already recommended but awaiting implementation. We consider that instead of these recommendations being added to this list, previous recommendations should be re-examined and consolidated where possible, in order to ensure legislative change occurs expeditiously.
Overall, we welcome the Committee’s recommendations. However, without detailed legislative drafting it is difficult to predict the real impact such recommendations will have on practitioners. Health practitioners and their representative groups should monitor any proposed legislative changes arising from the recommendations carefully, to ensure that any changes proposed have the effect the Committee intended rather than further entrenching AHPRA’s current powers and practices.
In the meantime, we are hopeful that the concerns raised will cause AHPRA to exercise its functions more carefully and efficiently, in order to reassure all practitioners that the regulatory system can protect the public without, as was submitted to the Committee, ruining lives and causing misery.
This article was co-authored by Jimmy Zhang, Paralegal.
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