Fifteen new reforms to health practitioner regulation came into effect on 15 May 2023, focussed on strengthening public protection while maintaining fairness for practitioners.
The reforms include the power for Ahpra and National Boards to issue public statements to warn the public about a serious risk from an individual, and the ability to notify third parties of potential harm.
They are the latest in a wide range of changes outlined in the Health Practitioner Regulation National Law and Other Legislation Amendment Act 2022 (the Act), which came into law on 22 October 2022.
The Act will allow Ahpra and National Boards to warn the public about serious risks posed by individuals, including registered and un-registered practitioners, who are the subject of investigations or disciplinary proceedings.
Ahpra’s CEO, Mr Martin Fletcher, welcomed the reform while noting the significance of the new power.
‘From today, 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,” Mr Fletcher said.
‘We will be using this power sparingly, but in exceptional cases it will help us better protect the public.
“There is a very high legal threshold to cross before they can be called upon. Most often it will used to warn the community about dangerous unregistered individuals, rather than currently registered practitioners.
“Immediate action can include placing a suspension or conditions on a practitioner’s publicly visible registration. Only in exceptional circumstances when immediate action is not enough to ensure patient safety would we consider issuing a public statement about a registered health practitioner.”
A reassurance echoed by the Chair of the MBA, Dr Anne Tonkin, who acknowledged there had been some concern about “naming and shaming” of doctors, or other people being investigated before there was a formal outcome, in relation to the issuing of public statements.
“I would like to reassure the medical community that this power will only be used rarely, and only when there is a serious unmanaged risk to public health and safety,” Dr Tonkin said.
“We always have our eyes fixed on balancing public safety and fairness to all. These legal changes will help us manage complaints more efficiently and improve the regulatory experience of notifiers and practitioners.”
Ahpra and National Boards’ existing powers for registered practitioners – called immediate action powers – are almost always effective in preventing further harm, and the Bill notes that public statements “are not a form of disciplinary action, determination, sanction, or penalty – their purpose is to protect the public in cases when the decision maker considers it is necessary to do so.”
A decision maker – usually Ahpra – may only make a public statement if they reasonably believe that:
- the person has contravened a relevant provision, or the person is the subject of an assessment, investigation, or other proceeding under Part 8 of the National Law
- because of the person’s conduct, performance or health, the person poses a serious risk to other people
- it is necessary to issue a public statement to protect public health or safety.
A public statement may be made by Ahpra or by the National Board for the profession in which the person is or was registered, with any decision to propose a public statement or to issue a public statement made by the Ahpra CEO on advice from the Executive Director of Regulatory Operations and General Counsel.
There are also other safeguards built into the legislation:
- a ‘show cause’ process is part of the process before deciding to issue a public statement
- after the show cause process is completed and a decision is made to issue a public statement, Ahpra must then wait at least one business day to publish 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 where necessary.
However, the Bill also states that while there must be more than a suspicion, including information which supports a reasonable belief that a contravention has occurred, “the decision maker is not required to make factual findings about any particular alleged contravention.”
“In considering whether, because of a person’s conduct, performance or health, they pose a serious risk to the public, the decision maker is not required to make factual findings about the person’s actions or health,” the section on serious risk reads.
“Further, the decision maker is not required to form a reasonable belief that the person has engaged in any particular identified action before it can make a public statement. Often the fact of, and serious nature of, allegations about a person will be sufficient to support a reasonable belief as to the existence of the serious risk.”
Other updates relate to the assessment and investigation process, including being able to compel practitioners to provide information earlier in the complaints process, and broadening the ability of National Boards to share information following a notification to alert third parties to potential harm.
From 15 May 2023, National Boards were also empowered to disclose information to an entity that has a current ‘practice arrangement’ with a registered practitioner or unregistered person, notify former employers and associates of action being taken against a registered practitioner, and disclose information to employers about unregistered practitioners.
Much like the threshold for issuing public statements, this information sharing will only happen in the most extreme cases where the public is at urgent risk, and the changes are being rolled out in phases, so implementation is smooth.
The moves were based on a new paramount principle introduced in October 2022 which made public protection, and public confidence in the safety of services provided by registered health practitioners and students, the primary considerations in all decision-making under the National Scheme.
Ahpra Board Chair, Ms Gill Callister PSM, explained the reforms responded to recommendations from various independent reviews into the National Scheme over recent years, including the:
- Independent review of the National Registration and Accreditation Scheme for health professions
- review of governance of the National Registration and Accreditation Scheme, and
- Independent review of accreditation systems within the National Registration and Accreditation Scheme for health professions.
“The National Scheme is a vital part of a system of safeguards for Australia’s health workforce,” Ms Gill said.
“After more than 12 years of operation and responding to recommendations from several reviews, these practical amendments will ensure the scheme remains fit to meet the challenge of regulating Australia’s health practitioners.”
The Bill progresses amendments to the National Law that were agreed by Australian Health Ministers on 18 February 2022, and was debated and passed by QLD Parliament on 13 October 2022 – the host jurisdiction for the National Law – with the changes automatically applied in most states and territories.
A corresponding amendment Bill was passed by the WA parliamentary process on 14 December 2022, the Health Practitioner Regulation National Law Amendment Regulation 2022 under the Health Practitioner Regulation National Law Act 2009, which came into effect on 2 February 2023.