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RACGP further responds to Ahpra criminal history standard
The college is calling for an individualised, non-discriminating approach that considers the length of time since any criminal offence.
Updates to how criminal history checks are handled are part of public safety reforms currently underway by Australia’s health regulatory bodies.
The RACGP has provided a submission to the Australian Health Practitioner Regulation Agency (Ahpra) on its Criminal history registration standard.
It comes following college feedback to the September 2023 National Boards’ current version of the criminal history standard, as part of a consultation on other work being undertaken for the Boards’ blueprint to improve public safety in health regulation.
This work included a range of reforms to better protect patients from serious misconduct by registered health practitioners, including sexual misconduct.
Ahpra has now considered this feedback and proposed changes to the criminal history standard and developed a draft registration standard and new supporting materials, of which the RACGP is generally supportive of.
Dr Emil Djakic is Deputy Chair of RACGP Expert Committee – Funding and Health System Reform (REC–FHSR) and was involved in the college feedback.
He told newsGP while the RACGP respects that Ahpra is charged with the responsibility of trying to act on behalf of and ensure patients are ‘as safe as they can be’, the impact on individuals needs to be considered.
‘Ahpra aren’t necessarily making up the laws, they’re trying to interpret the law to then use that as a way of assessing in good faith on behalf of the population, that this person is considered safe to be registered.
‘If you make too many absolute rules in this space … that introduces a whole lot of grey zone for us to have confidence, but a properly constituted Ahpra, Board and process can be equipped with the right tools to interpret the information that’s in front of them.
‘And we can be uncomfortable with that, or we could be respectful of the challenging job they must have to face.
‘It all comes down to trying to make sure there’s not an overly biased discrimination against someone with a criminal history.’
According to Ahpra, key changes to the standard include:
- more information about what the standard is for
- making it clearer what type of criminal history might mean that a person should not be a registered practitioner
- more information about what gets considered when decisions are made about someone’s criminal history
- a new Factor 10 consideration to make the standard fairer for Aboriginal and Torres Strait Islander people.
In its response, the RACGP welcomes the content, language and structure of the revised standard as generally ‘clearer and more relevant’ than the current version.
However, it says more concrete examples of what terms like ‘suitability’ and ‘fit and proper’ mean in practice would be helpful.
Dr Djakic said the registration standard explores the intersect between criminal history and criminal history disclosure and how that might influence the proposed terms of ‘suitability’ and ‘fit and proper’.
‘These phrases are really uncomfortable for a lot of people, but for the great majority they’ll be of no burden at all,’ he said.
‘We’re talking about a very small subset of the applicants who, for one reason or another, have some criminal history … but it’s more about the nature of how it’s tested in the system and what would have been happening in that person’s life at the time.
‘There’s clearly going to be some concerns about the extreme end of the criminal spectrum, but there’s always the potential to look at a different set of circumstances with a different set of supervision.
‘We have to have belief in human nature to an extent.’
Because a person’s criminal history is judged on individual merit and subjective factors, the RACGP believes a high-level statement and set of principles allows for ‘reasonable interpretation’ of the standard.
Not including an exhaustive list of disqualifying offences is also appropriate, as it allows the Board discretion to consider each matter on its merits. However, the college states that applicants must be clearly informed that certain offences are likely to mean they are not registerable, for example serious violent/sexual offences.
The RACGP welcomes the new Factor 10 on considering the systemic racism faced by Aboriginal and Torres Strait Islander people as a ‘crucial addition’.
It also emphasises that while there remain offences incompatible with registration, it is appropriate to assess an individual’s offending against the backdrop of systemic discrimination in the justice system.
The supporting material should recognise the over-representation of certain groups in the criminal justice system and the need for a nuanced, case-by-case approach to assessing their circumstances.
Broader framing to better capture the full context of Aboriginal and Torres Strait Islander practitioners’ experiences and help create a more culturally safe and accessible system are also suggested, and Dr Djakic adds that racism should always be addressed.
‘We’ve got to stamp out racism – clinicians with racist views need to be held to account,’ he said.
The RACGP also recommends that stage of life be considered alongside the length of time since an offence occurred, for example, whether the criminal charge occurred prior to becoming a medical student. This could be particularly important for those who enter the profession later in life.
‘When someone enters a student program or becomes registered, their obligations are much clearer than before embarking on study, especially if they did not know at that time that they may become a health professional,’ the submission states.
Dr Djakic said while criminal history is one part of Ahpra’s role of ensuring that the clinicians they attach registration to are fit for purpose, it needs to be reflected on individually.
‘There are lots of nuances to that, like the discussion about your history as a youth,’ he said.
‘But it may well and truly completely conflict with the nature of who you subsequently became as an adult.’
Consultation on Ahpra and the National Boards’ draft revised criminal history standard and supporting materials closes 30 July. Feedback will form part of the consideration in drafting the final version of the standard, which must be approved by Health Ministers before it takes effect.
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