The Health Practitioner Regulation National Law and Other Legislation Amendment Act: Changes to the National Law

The Health Practitioner Regulation National Law Act 2009 is the legislative framework of the National Scheme for the regulation of health practitioners. It is safe to say that the Scheme has its detractors. Over the years, several reviews of the National Scheme have been undertaken, including an independent review in 2014, a governance review in 2017, an accreditation systems review in 2018, as well as the Senate Inquiry of 2022. The recommendations arising from those reviews have been the basis of reforms to the National Law, which sets out the legal framework for the National Scheme.

The Health Practitioner Regulation National Law and Other Legislation Amendment Act 2022 (the Act), which was passed by the Queensland Parliament on 13 October 2022, contains the latest stage of reforms to the National Law.

The Act makes changes to the National Law which are designed to strengthen public protection and increase public confidence in health services provided by registered practitioners. The changes also implement reforms designed to improve the governance, and promote the efficient and effective operation of the National Scheme. Some of these changes will likely be welcomed by practitioners, others will not.

Testimonials remain prohibited

There has been considerable coverage about the possible removal of the ban on using testimonials. Although the ban was originally slated to be removed, this change was withdrawn during debate of the Act in Queensland Parliament. This was to ensure consistency with the recommendations of the independent review into the cosmetic surgery industry, which were to enforce the ban on testimonials in cosmetic surgery advertising.

Summary of Amendments

More than 30 areas of the National Law are affected by the amendments. This article provides a summary of the relevant changes.

New paramount principle

The Act introduces a new ‘main guiding principle’ that makes ‘protection of the public’, and ‘public confidence in the safety of services provided by registered health practitioners and students’, ‘paramount’.[1] It effectively moves public safety from one of several objectives to the first principle of the Act. While this is of course an admirable and appropriate principle for the Act, this change will likely have significant sequelae, as the Board will be compelled by the Act to place less emphasis on the other objectives, such as the efficient and fair operation of the scheme and the minimal use of restrictions on the practice of health professionals.

Higher penalties

The Act increases the maximum penalties able to be imposed for both advertising[2] and direct and incite offences[3] under the National Law. The maximum penalty for breaching advertising restrictions will be raised from $5,000 to $60,000 for an individual and from $10,000 to $120,000 for a body corporate. The maximum penalty for direct and incite offences will also be increased from $30,000 to $60,000 for an individual and from $60,000 to $120,000 for a body corporate. These underscore the focus on deterring unscrupulous practices.

Disciplinary action in relation to health practitioners while unregistered

The National Boards will be able to take disciplinary actions against practitioners who continue to practise or use a protected title after their registration has lapsed.[4] The changes also clarify that a practitioner who continues to practice or use a protected title while their registration has lapsed is engaging in unprofessional conduct.[5] This provides an alternative to prosecuting these matters under the National Law’s title and practice protection provisions or imposing conditions on a practitioner’s registration at the time of renewal.

Interim prohibition orders

AHPRA and the National Boards will be empowered to issue interim prohibition orders (IPOs) to unregistered practitioners, including practitioners whose registration has lapsed or been suspended.[6] IPOs can prohibit or restrict a person from providing a specified health service or all health services, and prohibit a person from using protected titles. This will allow regulators to take action to control a serious risk while other action is being finalised or a matter is handed over to another regulator better placed to undertake more comprehensive regulatory action.

Public statements

Any regulatory body will be empowered to issue public statements about persons, including registered practitioners, who are the subject of investigations or disciplinary proceedings and whose conduct poses a serious risk to public health and safety.[7] A public statement will allow regulators to warn the public about the risks posed by the practitioner, before the investigation is concluded and before the Board has made its decision in response.

The regulatory body will incur no liability for these statements, so long as they are made in good faith.

This change was the subject of rigorous debate and will likely remain contentious. To our mind, the existing powers granted to the Board to take immediate action are sufficient to protect the public. It appears that the new power has been granted to AHPRA in order to expedite action, removing the necessity of a Board’s consideration.

Reporting of scheduled medicine offences

Health practitioners and students will be required to report to the relevant National Board charges and convictions of offences related to regulated medicines and poisons.[8] Early reporting of these offences will allow National Boards to respond quickly to risks posed to the public by practitioners or students who misuse scheduled medicines.

Disclosure of information

Changes to the National Law provide discretion to National Boards to notify former employers and associates of action being taken against a practitioner; and enable National Boards to disclose information about unregistered persons and registered practitioners to employers and those who have a practice arrangement with them in certain circumstances.[9]

The power to notify former employers and associates is discretionary and available only if the National Board reasonably believes the practitioner’s conduct posed a risk of harm at the time of the prior employment, practice arrangement, or sharing of premises. This amendment will capture those circumstances in which practitioners have caused harm to patients through successive workplaces.

The changes will also permit, or in some cases require, National Boards to disclose serious risks posed by a registered practitioner prior to taking disciplinary action, or by unregistered persons who are being investigated or prosecuted.

Withdrawal of practitioner’s registration

Previously, only a tribunal could withdraw a practitioner’s registration where it was based on false or misleading information. The National Board will now be empowered to withdraw a practitioner’s registration if it reasonably believes the registration was improperly obtained because of the provision of false or misleading information.[10]

Increasing the use of undertakings

The amendment will allow National Boards to accept an undertaking from a practitioner when they apply for registration, endorsement of registration, and/or renewal of registration.[11] A National Board will also be allowed to refuse to renew a practitioner’s registration if the practitioner has contravened an undertaking they have given. The amendment will increase the use of undertakings as they will no longer be solely a disciplinary measure. Practitioners may be more willing to provide an undertaking than have a condition imposed on their registration because this will avoid delays in registration and increase their involvement in the process.

Allowing National Boards to require records at preliminary assessment

Currently, when conducting a preliminary assessment of a notification, a National Board has no ability to compel practitioners to disclose information that may be relevant and enable the efficient resolution of the notification. Instead, a National Board may need to commence an investigation to obtain the information required to determine whether any regulatory action is needed. This amendment will empower National Boards to require practitioners to provide information or documents, including patient and practitioner records, during the preliminary assessment of a notification.[12] However, practitioners will not need to provide the information if it might incriminate them.

Allowing National Boards to refer matters to other entities at preliminary assessment

During preliminary assessment of a notification, a National Board is currently only able to refer a notification in limited circumstances, and only either to another Board or the jurisdiction’s health complaints entity. This amendment will allow National Boards to refer notifications to another entity following preliminary assessment.[13] There is no limit to the entities to which a National Board may refer a notification. Entities may include the police, courts, jurisdictional health complaints entities, other health regulators such as state-based medicines and poisons regulators, or health services or employers.

Increasing the responsiveness of show cause processes

The changes will allow a National Board to take appropriate action against a registered health practitioner under the health, conduct and performance provisions in part 8 of the National Law, even if the Board initially proposed to take a different regulatory action.[14] By allowing a National Board to change its proposed disciplinary action after the completion of the show cause process, this will ensure that the most appropriate regulatory action is taken based on all relevant information available at any time. However, this does appear to negate the show cause process somewhat because the practitioner may be subject to action about which they did not have an opportunity to respond.

Giving regulators limited discretion not to refer matters to a tribunal

Under the existing law, National Boards must refer all matters to a tribunal if the Board reasonably believes that the practitioner has behaved in a way that constitutes professional misconduct. Tribunal proceedings are time consuming and expensive for all parties and many tribunals are unable to list matters for hearing within a year.

This amendment provides National Boards with a limited discretion to decide not to refer professional misconduct cases to a tribunal.[15] To protect the integrity of the National Scheme and the public, National Boards will only be able to exercise such discretion if they conclude that there is no public interest in referring the matter to a tribunal.

Other changes

Other changes to the National Law include:

• Updating AHPRA’s functions;
• Allowing flexibility in the timeframes for starting registration;
• Removing endorsement of registration for midwife practitioners; and
• Minor and technical corrections.

What to look out for

It should be noted that not all of the amendments have come into immediate effect. Some of the changes are yet to start (public statements, for example), in order to give the relevant National Law entities time to update their policies and procedures. The remaining changes are expected to come into effect in the first half of 2023.

The new powers granted to make public statements before a Board has made a decision about performance or conduct appear unnecessarily broad and may cause significant reputational harm to practitioners who are later found to have acted in accordance with the standard expected. We can only hope that these new powers are used carefully and sparingly.

We do look forward to a reduction, however small, in referrals to tribunals. Referrals made about unregistered and retired practitioners are the source of stress and anxiety for those practitioners and serve little purpose in terms of public protection.

This article was co-authored by Jimmy Zhang, Paralegal, and originally published in AMA Victoria's blog, Stethoscope.

Read other items in the Australian Healthcare Brief - March 2023