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AHPRA naming laws in place despite ongoing reservations
Critics say the new powers deny practitioners natural justice, while a clause protecting regulators against legal action has been labelled ‘indefensible’.
National health regulators say the new powers are designed to protect the public and will only be used in ‘exceptional’ circumstances.
This article was updated at 8:50 am on Thursday 18 May to include a response from AHPRA.
AHPRA and the National Boards can now issue statements about health practitioners who are the subject of investigations or disciplinary proceedings, provided there is a ‘reasonable belief’ of ‘serious risk’ to the public.
These statements will be posted on a dedicated webpage accessible from the AHPRA and National Boards websites, and in cases involving a registered practitioner, against that person’s registration on the national register.
Regulators may also increase public awareness of the statement via media release or by posting on social media, as well as through notices to known affected parties by targeted correspondence.
The new powers came into effect this week. They are the latest in a wide range of changes outlined in the Health Practitioner Regulation National Law and Other Legislation Amendment Act 2022, which passed into law last October.
According to AHPRA CEO Martin Fletcher, the measure is subject to a high legal threshold and will only be used in exceptional circumstances.
‘We will be able to warn the public about dangerous individuals and let them know what they need to do if they have been exposed to patient safety risks, such as a serious infection control issue,’ he said.
‘We will be using this power sparingly, but in exceptional cases it will help us better protect the public.’
Despite the assurances, medical organisations, including the RACGP, have consistently raised concerns about the powers, as well as the lack of detail explaining what constitutes a ‘reasonable belief’ or ‘serious risk’ to the public.
‘First and foremost, the lack of natural justice is really concerning,’ RACGP Vice President Dr Bruce Willett told newsGP after the powers came into effect.
‘The public deserves to be defended, but practitioners deserve to have their rights protected as well.’
Another major worry for Dr Willett is the apparent absence of a check or balance on the power, with the law stating that ‘no liability is incurred by the regulatory body for the making of, or for anything done for the purpose of making, a public statement under this section’, even if it is subsequently revoked.
He says this aspect of the newly adopted law is ‘unconscionable’.
‘They’re essentially saying, “the public need to be protected if there’s something really terrible going on, but we’re not willing to stand by that decision”, which I think is indefensible,’ he said.
‘Our system of government – in fact our whole society – is based on checks and balances, and the conviction that all the power shouldn’t rest in one place and that everyone should be responsible for their actions.
‘If they’re serious then they should be willing to take responsibility for the decisions that they make.’
A spokesperson for AHPRA and the National Boards told newsGP that they expect the power to issue a public statement will ‘in most cases’ be used to warn patients about dangerous unregistered practitioners posing a public health risk.
‘Australia’s health ministers put that power into the National Law to make sure regulatory decisions are made for the right reasons – to protect public safety – and are not influenced by threats or possibilities of legal action,’ they said.
‘We would be very, very surprised if a public statement was later revoked, given there is an incredibly high threshold before it is used.’
Under the law, the threshold for issuing a public statement requires AHPRA or a National Board to form a reasonable belief:
- that the person has contravened a relevant provision of the National Law; or is the subject of an assessment, investigation or other proceeding under Part 8 of the National Law; and
- that because of the conduct, performance or health, the person poses a serious risk to persons; and
- it is necessary to issue a public statement warning to protect public health or safety.
In the context of issuing a public statement, reasonable belief is defined as requiring ‘the existence of a factual matrix sufficient to induce the belief in a reasonable person’, with belief described as ‘an inclination of the mind toward assenting to, rather than rejecting, a proposition’.
‘In considering whether a person has contravened a relevant provision, there must be more than a suspicion that a contravention has occurred,’ AHPRA’s consultation report on the legislation states.
‘There must be sufficient factual information available to the decision maker which gives rise to a reasonable belief that one or more contraventions have occurred, but the decision maker is not required to make factual findings about any particular alleged contravention.’
Other safeguards built into the legislation include:
- a ‘show cause’ process, in which the practitioner receives a copy of the proposed public statement, the reasons why it is being issued, information on where it will be released, and an opportunity to make a submission to the decision maker
- that after the show cause process is completed, the regulator must then wait at least one business day before releasing the statement
- a decision to issue a public statement will be subject to appeal to a relevant tribunal
- the public statement may be revised or revoked.
However, given the potentially serious consequences associated with the issuing of a notification or public statement, Dr Willett remains unconvinced.
‘It costs lives. We know there has been
a number of suicides … by doctors who are being investigated by AHPRA,’ he said.
‘The law applies to all medical practitioners but the suicide rate amongst doctors is particularly high.
‘It’s actually higher than it is for veterans, which is not to diminish the trauma faced by veterans, but it puts the scale of the issue into perspective.’
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