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Health Practitioner Regulation: Has the National Law Produced National Outcomes in Serious Disciplinary Matters?

Published online by Cambridge University Press:  01 January 2025

Jenni Millbank
Jenni Millbank*
Affiliation:
UTS
*
The author may be contacted at jenni.millbank@uts.edu.au.
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Abstract

Since 2010, a national scheme regulates the registration, accreditation and discipline of health professionals in Australia (the ‘National Law’). This research examines disciplinary cases from tribunals nationwide to address the question: Has the national regulation of health professionals produced consistency in outcomes in serious cases of professional misconduct? All publicly available Australian tribunal-level decisions concerning complaints of serious misconduct and/or impairment brought against the five most populous regulated health professions (nurses and midwives, doctors, psychologists, pharmacists and dentists) were analysed for the period from 1 July 2010 to 30 June 2017. Each case was coded by reference to a typology of misconduct, practitioner characteristics and outcome, allowing for comparisons to be drawn both as between the professions and as between jurisdictions. Major disparities were identified in outcomes across the professions, with doctors being subject to less severe outcomes than other professions, in particular in comparison with nurses, even when the same main head of misconduct was in issue. Marked disparities were also identified between outcomes in different states and territories, suggesting that the National Law is not being applied in a uniform manner. This article examines these disparities and explores possible contributing factors.

Type
Articles
Information
Federal Law Review , Volume 47 , Issue 4 , December 2019 , pp. 631 - 654
Copyright
Copyright © 2019 The Author(s)

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Footnotes

This research was funded by the UTS Law Health Justice Research Centre and UTS PEP scheme. Thanks to David Carter, Frances Taylor, Mary-Therese Daniel and Jenny Boland for comments on previous versions of this article, to research associate Eloise Chandler, Matej Marek for statistical analysis, and to Cindy Lam, Ruby Wawn and Ellen O’Brien for research assistance. The author has been a part-time member of the NSW Civil and Administrative Tribunal (NCAT), Occupational Division, since 2015. This role involves presiding in health disciplinary matters, including seven cases that ultimately comprised part of the dataset. To ensure integrity of the coding, the author did not undertake any coding of those seven cases nor discuss them with research assistants. The views expressed in this article are those of the author alone and do not represent NCAT. NCAT had no role in the design or conduct of this research.

References

Notes

1. For background, see Ian Freckelton, ‘Regulation of Health Practitioners: National Reform in Australia’ (2010) 18(2) Journal of Law and Medicine 207; for a comprehensive overview of how the different institutions fit together (including the ‘co-regulatory’ approach of NSW to discipline, which has now extended to Queensland), see Gabrielle Wolf, ‘Registration of Health Professionals’ in Anne-Maree Farrell et al (eds), Health Law: Frameworks and Context (Cambridge University Press, 2017) 78.

2. For background, see COAG Health Council, ‘The Independent Review of the National Registration and Accreditation Scheme for Health Professionals’ (Communique, 7 August 2015).

3. See Kerry Breen, ‘National Registration Scheme at 5 Years: Not What It Promised’ (2016) 40(6) Australian Health Review 674.

4. Productivity Commission, Australia’s Health Workforce (Research Report, 22 December 2005) <http://www.pc.gov.au/inquiries/completed/health-workforce>.

5. Council of Australian Governments, Intergovernmental Agreement for a National Registration and Accreditation Scheme for the Health Professions (2008) <http://www.ahpra.gov.au/About-AHPRA/Ministerial-Directives-and-Communiques.aspx>.

6. Enacted through: Health Practitioner Regulation National Law Act 2009 (Qld); Health Practitioner Regulation National Law Act 2009 (NSW); Health Practitioner Regulation National Law (Vic) Act 2009 (Vic); Health Practitioner Regulation National Law (South Australia) Act 2010 (SA); Health Practitioner Regulation National Law (WA) Act 2010 (WA); Health Practitioner Regulation National Law (ACT) Act 2010 (ACT); Health Practitioner Regulation National Law (Tasmania) Act 2010 (Tas); Health Practitioner Regulation (National Uniform Legislation) Act 2010 (NT).

7. See ‘What We Do’, Australian Health Practitioner Regulation Agency (online), 31 August 2018, <http://www.ahpra.gov.au/About-AHPRA/What-We-Do.aspx> including infographics explaining the complex interrelation of National Boards with the Councils and Ombudsmen in co-regulatory jurisdictions.

8. See Freckelton (n 1) and more latterly: COAG Health Council, Final Report: A National Code of Conduct for Health Care Workers (17 April 2015).

9. See Belinda Bennett et al, ‘Australia’s National Registration and Accreditation Scheme for Health Practitioners: A National Approach to Polycentric Regulation?’ (2018) 40(2) Sydney Law Review 159.

10. Health Practitioner Regulation National Law 2009 (Qld) sch (‘Health Practitioner Regulation National Law’) cl 3(2).

11. See Katie Elkin, ‘Medical Practitioner Regulation: Is It All About Protecting the Public?’ (2014) 21(3) Journal of Law Medicine 682, and discussion below.

12. Regulatory Principles, Australian Health Practitioner Regulation Agency (online), 4 April 2019, < https://www.ahpra.gov.au/About-AHPRA/Regulatory-principles.aspx> Principle 3.

13. For a detailed discussion of how the pathways for complaints handling occur, before and after the National Law, see Claudette Satchell et al, ‘Approaches to Management of Complaints and Notifications about Health Practitioners in Australia’ (2016) 40(3) Australian Health Review 311.

14. Compare Health Practitioner Regulation National Law Act 2009 (Qld) sch cl 156 (‘Health Practitioner Regulation National Law’) (a Board may take action if necessary to protect public health and safety) with Health Practitioner Regulation National Law Act 2009 (NSW) s 150 (Council must take action if appropriate to protect health and safety).

15. For a comparison of the NSW and National provisions, see Mary Chiarella et al, ‘Survey of Quasi-Judicial Decision-Makers in NSW and the National Registration Scheme for Health Practitioners’ (2018) 25(2) Journal of Law and Medicine 357, Appendix A.

16. Health Practitioner Regulation National Law Act 2009 (Qld) s 193.

17. Victoria, Queensland and WA heard health matters within a generalist administrative tribunal before and after the advent of the National Law. In the ACT and NT, there was a specialist health practitioner tribunal at the time of the implementation of the National Law, but they later shifted to a generalist tribunal (in 2010 and 2015, respectively). SA and Tasmania introduced a specialist tribunal to coincide with the National Law. NSW amalgamated over a dozen profession-specific tribunals into a generalist tribunal in 2014.

18. See, eg, Health Care Complaints Commission v Litchfield (1997) 41 NSWLR 630, 637; Health Care Complaints Commission v Do [2014] NSWCA 307; Sudath v Health Care Complaints Commission (2012) 84 NSWLR 474; Craig v Medical Board of South Australia [2001] 79 SASR 545; Medical Board of Australia v Myers [2014] WASAT 137; Medical Board of Australia v Petrovic [2011] VCAT 795.

19. See Health Practitioner Regulation National Law (NSW) 2009 (NSW) s 149E.

20. See discussion in Laurie Warfe, ‘Determining the Risk of Recidivism in Previously De-Registered Health Practitioners’ (2013) 21(1) Journal of Law and Medicine 67.

21. Health Practitioner Regulation Act 2009 (Qld) sch cl 196(4)(b) (‘Health Practitioner Regulation National Law’).

22. Health Practitioner Regulation National Law (NSW) 2009 (NSW) s 149C(5), (5A).

23. While nurses and midwives are actually separate professions, they are regulated by the same Board and are often addressed together in research and policy literature and are grouped together in this analysis for that reason.

24. The data were organised per respondent, as opposed to organised by decision per se, so any procedural, or subsequent decisions flowing from the same matter was treated in the dataset as one case. Where on occasion proceedings against two or more respondents were heard together, separate entries were made for each respondent so as to record the complaints made against each professional and final outcome. After the dataset was closed four further decisions were provided by the ACT Tribunal but were not able to be included in the analysis. For completeness, those cases involved two doctors (one of whom relinquished registration following a prescription complaint, the other was deregistered following a finding of sexual misconduct) and two psychologists (one of whom was cautioned following treating multiple members of the same family, and the other received conditions following sexual misconduct).

25. The investigator and research assistants crosschecked coding for consistency at several junctures throughout the research. The findings were analysed for statistical significance using SPSS version 25, and an alpha value of 0.05. Statistical significance was established for all key findings reported in this article with the exception of the differential rates of deregistration of the professions in sexual misconduct matters, which had too few cases to establish significance. The p value of key findings is noted in footnotes throughout.

26. See, eg, Anna Ryan, Lay San Too and Marie Bismark, ‘Complaints about Chiropractors, Osteopaths, and Physiotherapists: A Retrospective Cohort Study of Health, Performance, and Conduct Concerns’ (2018) 26(12) Chiropractic and Manual Therapies 1.

27. Katie Elkin, Matthew Spittal and David Studdert, ‘Risks of Complaints and Adverse Disciplinary Findings Against International Medical Graduates in Victoria and Western Australia’ (2012) 197(8) Medical Journal of Australia 448 but cf Marie Bismark, Matthew Spittal and David Studdert, ‘Prevalence and Characteristics of Complaint-Prone Doctors in Private Practice in Victoria’ (2011) 195(1) Medical Journal of Australia 25 finding overseas trained doctors had lower odds of being complaint-prone.

28. Marie Bismark et al, ‘Identification of Doctors at Risk of Recurrent Complaints: A National Study of Healthcare Complaints in Australia’ (2013) 22(7) BMJ Quality and Safety 532.

29. Ibid.

30. Katie Elkin et al, ‘Doctors Disciplined for Professional Misconduct in Australia and New Zealand, 2000–2009’ (2011) 194(9) Medical Journal of Australia 452.

31. Ibid 455.

32. Ibid.

33. Doctors comprised 39.9% of the misconduct cases, but only 18.4% of membership across the five registered professions. Dentists made up 6.5% of the dataset and 3.8% of the professions, pharmacists 9.4% of the dataset and 5.2% of the professions, psychologists 9.3% of the dataset and 5.9% of the professions and nurses and midwives 34.8% of the dataset but 66.7% of the population of the professions. The proportion of each of the five professions in the professional population was calculated by using data from each financial year 2010–17, averaged, drawn from APHRA Annual Reports. The reports record the numbers of registrants for each registered profession, with a gender breakdown provided for most years, see AHPRA, Annual Report 2010–11 (2011); AHPRA, Annual Report 2011–12 (2012); AHPRA, Annual Report 2012–13 (2013); AHPRA, Annual Report 2013–14 (2014); AHPRA, Annual Report 2014–15 (2015); AHPRA, Annual Report 2015–16 (2016); AHPRA, Annual Report 2016–17 (2017), all available at <https://www.ahpra.gov.au/Publications/Annual-reports.aspx>.

34. The relationship between gender and appearance in the misconduct dataset was established as statistically significant with a p value of 0.001.

35. 270 cases (34%) and 142 cases (18%), respectively.

36. See discussion in Jenni Millbank, ‘Serious Misconduct of Health Professionals in Disciplinary Tribunals under the National Law 2010–2017’ (2019) Australian Health Review (forthcoming). The same finding was made in a study of 371 UK medical disciplinary cases in 2009–10, see Paula Case, ‘The Good, the Bad and the Dishonest Doctor: the General Medical Council and the “Redemption Model” of Fitness to Practise’ (2011) 31 Legal Studies 591, and in Elkin’s study of Australian and New Zealand Tribunal decisions concerning doctors, discussed below.

37. Conditions were imposed on registration in just over half of proven cases (n = 395), and the majority (n = 218) involved multiple conditions. In order of prevalence, conditions involved education/mentoring (n = 237), restricted practice (n = 142), supervision (n = 120), counselling (n = 71) and health conditions (n = 47). As fines, cautions and reprimands could be issued in tandem with other orders, they were counted as ‘non-restrictive’ only when they were not imposed in tandem with a restrictive sanction such as deregistration: producing a rate of ‘non-restrictive’ reprimand (32.4%), caution (4.8%) and fine (9.2%).

38. It is also notable that major legal inquiries into complaint mechanisms are frequently triggered by media attention concerning a repeat offender, most recently Andrew Churchyard and Emil Gayad: see Ron Paterson, Independent Review of the Use of Chaperones to Protect Patients in Australia (2017), see below n 80, and Gail Furness, Review of Processes Undertaken by the Medical Council of New South Wales Pursuant to Part 8 of the Health Practitioner Regulation National Law (NWS) with respect to Dr Emil Gayed (AHPRA, 2018) <https://www.mcnsw.org.au/medical-council-releases-final-report-gail-furness-sc-its-processes-respect-dr-emil-gayed> respectively.

39. Helen Kiel, ‘Regulating Impaired Doctors: A Snapshot from New South Wales’ (2013) 21 Journal of Law and Medicine 429.

40. Danuta Mendelson, ‘Disciplinary Proceedings for Inappropriate Prescription of Opioid Medications by Medical Practitioners in Australia (2010–2014)’ (2014) 22 Journal of Law and Medicine 255; Danuta Mendelson, ‘Disciplinary Proceedings Against Doctors Who Abuse Controlled Substances’ (2015) 23 Journal of Law and Medicine 24.

41. Freckelton (n 1); Eleanor Dawson, ‘Professional Misconduct in Psychiatry: Sexual Behaviour with Patients: A Report of Recent New South Wales Findings’ (2004) 28 Australian and New Zealand Journal of Psychiatry 197.

42. See, eg, Ryan, San Too and Bismark (n 26); Jenni Millbank et al, ‘Complementary Health Practitioners Disciplined for Misconduct in Australia 2010–2016’ (2017) 24 Journal of Law and Medicine 788.

43. Elkin et al, ‘Doctors Disciplined for Professional Misconduct’ (n 30); Katie Elkin et al, ‘Removal of Doctors from Practice for Professional Misconduct in Australia and New Zealand’ (2012) 21 BMJ Quality and Safety 1027 (‘Removal of Doctors from Practice’).

44. Elkin et al, ‘Doctors Disciplined for Professional Misconduct’ (n 30); Elkin et al, ‘Removal of Doctors from Practice’ (n 43) 1027.

45. Elkin et al, ‘Doctors Disciplined for Professional Misconduct’ (n 30) 454.

46. Elkin et al, ‘Removal of Doctors from Practice’ (n 43) 1030.

47. Ibid.

48. A limitation of the study was that the inclusion of New Zealand (which has had a unitary system with one Tribunal covering 21 different health professions since 2004) was not well explained in terms of whether the cases were genuinely comparable with the Australian cases. Another limitation was that 138 cases, representing a quarter of the entire pool of cases gathered, were excluded from analysis because the authors classified cases as ‘non-disciplinary’ if the issue was ‘exclusively impairment’. Impairment may include physical or mental illness, cognitive decline or injury, substance addiction, or a combination, often contributing to competence and performance issues, see discussion in Kiel (n 39). While a finding of impairment alone cannot lead to removal from practice under the National Law, it may lead to a related finding that the professional is not fit to practice, in which case removal is almost certain.

49. Lois Surgenor et al, ‘New Zealand’s Health Practitioners Disciplinary Tribunal: An Analysis of Decisions 2004–2014’ (2016) 24 Journal of Law and Medicine 239.

50. Some of these orders appear to be in combination: ibid 247.

51. The authors note the theory that ‘low status’ health professions many be punished more severely, but also suggest that another explanation could be found in the kind of misconduct in issue (which was not coded for)—for instance if nurses had been involved in serial misconduct: ibid 249, 250.

52. See, eg, Marie Bismark et al, ‘Identification of Doctors at Risk of Recurrent Complaints’ (n 28) 532; Matthew Spittal et al, ‘Outcomes of Notification to Health Practitioner Boards: A Retrospective Cohort Study’ (2016) 14 BMC Medicine 198; Ryan, San Too and Bismark (n 26); Bismark, Spittal and Studdert, ‘Prevalence and Characteristics of Complaint-Prone Doctors in Private Practice in Victoria’ (n 27).

53. Spittal et al (n 52).

54. See Table 2 for details of outcomes for doctors, in which the removal from practice rate is 3% higher than in Elkin’s study, but the deregistration rate is identical.

55. See, eg, Australian Medical Association, Submission No 117 to Standing Committee on Community Affairs, Inquiry into the Complaints Mechanism Administered under the Health Practitioner Regulation National Law, February 2017, <https://ama.com.au/system/tdf/documents/AMA%20Submission%20to%20the%20Senate%20Inquiry%20into%20the%20complaints%20mechanism%20march%202017.pdf?file=1&type=node&id=46478>.

56. See, eg, Australian Medical Association, Submission to Council of Australian Governments Health Council, Review of Mandatory Reporting Provisions, 29 September 2017, <https://ama.com.au/system/tdf/documents/AMA%20Mandatory%20Reporting%20Submission%20-%202018%20Final%20Submission.pdf?file=1&type=node&id=49613>.

57. And see a similar finding following a period of extensive review and reform of medical disciplinary institutions in the UK: John Chamberlain, ‘Malpractice, Criminality, and Medical Regulation: Reforming the Role of the GMC in Fitness to Practise Panels’ (2016) 25 Medical Law Review 1.

58. Statistical significance between profession and removal from practice was established with a p value of 0.0001.

59. Only three pharmacists had matters proved under this head and five psychologists (no pharmacists were removed from practice; four psychologists were deregistered).

60. The p value was 0.2052.

61. The relationship between nursing and deregistration, as opposed to suspension, in the context of proved sexual misconduct was established as statistically significant with a p value of 0.001.

62. Surgenor et al (n 49).

63. The relationship between profession and legal representation was tested for statistical significance, which was established with a p value of 0.001.

64. Statistical significance of the relationship between deregistration and legal representation was established with a p value of 0.001.

65. See Kiel (n 39) 81. Cf Mendelson, ‘Disciplinary Proceedings for Inappropriate Prescription of Opioid Medications by Medical Practitioners in Australia (2010–2014)’ (n 40) arguing, based on her analysis of 32 prescription cases concerning doctors determined in Victorian and NSW tribunals and courts in the first four years of the National Law, that there is an undue focus on ‘deterrence’.

66. Ron Paterson, The Good Doctor: What Patients Want (Auckland University Press, 2012) 81.

67. Kiel (n 39) 83.

68. Giele v General Medical Council [2006] 1 WLR 942, discussed in Elkin, ‘Medical Practitioner Regulation’ (n 11) 694. See also making available the ‘special skills’ of the doctor as one of the 12 factors considered regarding orders in WA jurisprudence: Medical Board of Australia v Veettil [2015] WASAT 124 and one of five factors considered in NSW: Health Care Complaints Commission v King [2013] NSWMT 9.

69. Elkin, ‘Medical Practitioner Regulation’ (n 11) 698.

70. See ibid.

71. See, eg, Health Workforce Australia, Australia’s Future Health Workforce—Nurses (Report, 2014); Kathleen Calderwood and Greg Miskelly, ‘NSW Needs Nurses as “Catastrophic” Shortage Predicted to Affect Patient Care’, ABC News (online), 12 January 2018, <https://www.abc.net.au/news/2018-01-12/nsw-set-for-major-shortage-of-nurses-and-midwives/9321464>.

72. Medical Board of Australia v Smith [2016] VCAT 243, [27]. See also, eg, HCCC v Small [2012] NSWMT 18 [30].

73. See below n 81 and accompanying text.

74. The relationship between jurisdiction and deregistration was established as statistically significant with a p value of 0.0001.

75. Health Practitioner Regulation National Law Act 2009 (Qld) s 3A; Health Practitioner Regulation National Law (NSW) 2009 (NSW) s 3A.

76. See discussion in Wolf (n 1).

77. See Office of Health Ombudsman, Queensland: <https://www.oho.qld.gov.au/about-us/office-of-the-health-ombudsman/>; See also ‘What We Do’ (n 7).

78. One division head noted that in that jurisdiction, the National Board briefs external solicitors to pursue tribunal complaints and those solicitors are sometimes new to the health jurisdiction, compared to NSW where in-house lawyers are, in effect, repeat players with deep institutional knowledge.

79. Chiarella et al (n 15).

80. Both groups had similar rates of response favouring conditions and reprimands: ibid 372.

81. Ibid 376.

82. Marie Bismark et al, ‘Mandatory Reports of Concerns About the Health, Performance and Conduct of Health Practitioners’ (2014) 201 Medical Journal of Australia 399, 402.

83. Ibid.

84. Paterson, Independent Review (n 38) 77.

85. Ibid (emphasis added). For cases in which tribunals ordered conditions involving ‘chaperones’ following findings of sexual misconduct against doctors, see, eg, Medical Board of Australia v Veettill [2015] WASAT 124; Medical Board of Australia v Blomeley [2014] QCAT 160; HCCC v Vastrad [2011] NSWMT 1. See also Medical Board of Australia v Young [2010] VCAT 1542 in which the doctor was practising under a condition imposed by the Medical Board in 2003 that he not have sex with any patient; a condition strongly suggestive that such an event had occurred previously. This condition was subsequently breached.

86. Health Practitioner Regulation National Law Act 2009 (Qld) s 196(2)(c).

87. SA was 24.6%, WA was 36.4%. The ACT, NT and Tasmania combined were 5.4%.

88. Health Practitioner Regulation National Law 2009 (NSW) s 149B.

89. Health Practitioner Regulation National Law Act 2009 (Qld) s 195.

90. The Queensland, South Australian and Victorian tribunals on occasion reduce or remove entirely periods of suspension based upon a ‘time served’ approach, crediting the period of time passed in which some practitioners had been unable to practice prior to the hearing by reason of immediate action taken at Board level: see, eg, Medical Board of Australia v Leggett [2015] QCAT 240; Medical Board of Australia v Gale [2015] SAHPT 3; Psychology Board of Australia v Huson [2013] VCAT 145. While these variations of practice merit further exploration, they can only explain differences in the length of suspensions ordered across jurisdictions (which were not compared in this research), not differential rates of deregistration. The Queensland Tribunal also appears to have unique practices concerning suspension orders; for some years it ordered suspension and then ‘suspended’ part or all of that order as long as conditions were complied with: see, eg, Medical Board of Australia v Yasin [2011] QCAT 300. This was later determined to be a form of order not authorised by the National Law: see, eg, Psychology Board of Australia v Cook [2014] QCAT 162.

91. This practice would contribute to both the high number of finalised cases and the low rate of removal from practice in WA.

92. See discussion of the deference of the Tribunal to such ‘suggested determinations’ in Medical Board of Australia v McGrath [2014] VCAT 641 [18]–[21].

93. Kim Snowball, Independent Review of the National Registration and Accreditation Scheme for Health Professions (Final Report, December 2014) 68 <http://www.coaghealthcouncil.gov.au/Publications/Reports/ArtMID/514/ArticleID/68/The-Independent-Review-of-the-National-Registration-and-Accreditation-Scheme-for-health-professionals>. The reviewer consulted with the tribunals and determined that the publication of decisions, annual meeting of the heads of the jurisdictions, and internal training processes comprised ‘adequate processes in place to minimise the risk of different decisions between the jurisdictions on the same or similar matters’: 69.

94. Ibid 69.

95. General Medical Council, ‘Sanctions Guidance: For Members of Medical Practitioner Tribunals and for the General Medical Council’s Decision Makers’, Medical Practitioners Tribunal Service (Online Document, 2018) <https://www.mpts-uk.org/-/media/mpts-documents/DC4198_Sanctions_Guidance_Feb_2018_23008260.pdf>.