Sex, drugs, impairment and dodgy work – reporting risky colleagues is now compulsory

The National Registration and Accreditation system includes a regulatory obligation to notify AHPRA where you consider a registered health practitioner may pose a risk to the public. Since its introduction in 2010 there have been numerous calls to advisory staff at all branches about interpretation of this obligation. The broad definition of public risk can and has been difficult to define, both by the DBA itself and by legal advisors to the profession. Section 140 of the Health Practitioner Regulation National Law Act (2009) (The National Law) states:

Notifiable conduct 

In relation to a registered health practitioner, means the practitioner has

(a) Practised the practitioner’s profession while intoxicated by alcohol or drugs; or

(b) Engaged in sexual misconduct in connection with the practice of the practitioner’s profession; or

(c) Placed the public at risk of substantial harm in the practitioner’s practice of the profession because the practitioner has an impairment; or

(d) Placed the public at risk of harm because the practitioner has practised the profession in a way that constitutes a significant departure from accepted professional standards.

AHPRA makes it clear that “Registered practitioners and students who fail to report notifiable conduct may face disciplinary action by their National Board”. However, this in itself is hard to interpret except that the law allows for a fine to be imposed. There has not been, to my knowledge at the time of writing this, an instance where a health professional has been so fined. After nearly 3 years sense seems to have prevailed in that aspect, but there is still general confusion amongst dental professionals about the scope of that obligation.

The obligation to make a mandatory notification applies to the conduct or impairment of all practitioners, not just those within the practitioner’s own health profession. This means that doctors, pharmacists, nurses, physiotherapists, optometrists, psychologists and other registered persons could notify AHPRA if concerned about a dentist, and dentists in turn may have an obligation to notify AHPRA in relation to the risk posed by members of those other professions.

The notification process

Different arrangements apply with regard to notifications in NSW, where a notification about the conduct, health or performance of a practitioner, must be made to the NSW Health Care Complaints Commission.

For other States and Territories, the notification process is the same as would apply for a member of the public lodging a complaint (notification) with AHPRA. A notification form is downloadable from:

Notification outcomes

Depending on the circumstances of the case, outcomes may be determined with or without a hearing. Outcomes can range from revoking the practicing certificate, placement of conditions on clinical practice, cautions and undertakings.

Sufficient grounds

The Dental Guidelines for Mandatory Notification published by the DBA state:

Making a mandatory notification is a serious step to prevent the public from being placed at risk of harm and should only be taken on sufficient grounds. The guidelines explain when these grounds are likely to arise.”

Clear cut evidence for mandatory notification may include evidence of a practitioner’s sexual misconduct, working under the influence of alcohol or drugs, or while psychologically disturbed the obligations are relatively straightforward.

Pattern of behaviour

Problems of interpretation arise when trying to judge whether a colleague’s quality of work may be notifiable, where a different set of problems arises. The belief that a practitioner “has practised the profession in a way that constitutes a significant departure from accepted professional standards” is interpreted to mean that a pattern of poor work has been identified, and that this could be independently substantiated.

To illustrate the difference we can refer to cases where different decisions applied. The first involved a specialist discovering that over 25% of patients treated by an ex-employee suffered serious complications. The employer obtained legal advice on referral by the relevant ADA Branch regarding implications for notification of AHPRA, notification of the PI insurer and the duty to advise patients. The notification proceeded but as the practitioner was no longer resident in Australia there was no disciplinary action taken. However, the pertinent point in this notification was based on a pattern of behaviour.

The second case highlights ‘philosophical differences’ between a general practitioner dentist and a specialist treating the same patient. The specialist was concerned when a child who had seen a general practitioner for orthodontic care presented with six teeth with frank caries. Contact was made with the general practitioner but no agreement was reached about what was in the best interests of the child. The legal obligation to notify AHPRA was not clear in this case, and on balance it appears the situation did not offer sufficient grounds, especially as no evidence was available about a pattern of behaviour. Despite the case showing a departure from accepted practice standards which could be, on individual merit, judged to constitute unprofessional conduct if brought before the DBA there was no repetitive litany of cases and could have been defended on clinical judgement (or patient management) grounds. In this case the patient (or parent) would have to be encouraged to notify AHPRA.

A recent case notified and dismissed by the Board involved a practitioner who had mental health issues which were being appropriately managed. The practitioner had voluntarily limited his clinical delivery to accommodate his competency. The member was praised by the DBA for this judicious and responsible approach. It has to be said that the colleague who made the notification did so after much soul searching and counselling so the stress of complying with these new regulations falls on all parties.

If in doubt about whether to notify AHPRA, we recommend that in the first instance you contact your ADA Branch for discussion of the circumstances. Where appropriate you may be referred on to legal advisors.

For more details on the obligations of registered dental practitioners, see the Guidelines for Mandatory Notification in the Policies, Codes and Guidelines section of the DBA website

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