12 January 2017

Pros and cons of mandatory reporting

AHPRA Medicolegal

 

Doctors have praised AHPRA’s mandatory reporting rule for helping them treat impaired colleagues and even saving some medical careers from ruin. 

But the first qualitative study of the controversial obligation points out fundamental flaws, starting with a lack of confidence in its procedural fairness.

On the positive side, treating practitioners said the rule gave them a “lever” to influence a practitioner-patient’s behaviour.  

Several clinicians interviewed for the research, led by Professor Marie Bismark of Melbourne University’s Centre for Health Policy, said they had successfully used the threat of a report to bring a practitioner-patient into line. 

“I think … to be able to say if you don’t take your antidepressants I will need to report you to the Medical Board – I don’t have any choice in the matter, here’s the law… That’s actually very powerful,” one interviewee said.

Practitioners who had lodged reports said the step could occasionally be of “great benefit” to patients who would “otherwise just keep going” … with self-destructive behaviour.

“We’ve had a couple of doctors that we’ve tried really hard to work with, and it’s not until … they really felt the heat of the Medical Board, that it actually dawned on them they had to – something had to change … I can bring to mind a couple of people, at least, where mandatory reporting has saved their careers.” 

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However, the study, based on interviews with 18 health practitioners and four medico-legal advisers, called for AHPRA to drop the reporting requirement in cases where the patient was undergoing approved treatment. 

The Australian law, in place since 2010, stipulates that any practitioner who has placed the public at risk of substantial harm because of an impairment must be notified, even if their condition is being managed effectively. 

“The reporting duty should be amended to explicitly assure access to confidential treatment (that is, no need to report) for practitioners who voluntarily participate in in an agreed treatment plan and take necessary steps to protect patients from harm, (for example, by limiting the nature or extent of their practice for a period of time)” the authors said. 

The study found most interviewees supported the intent of mandatory reporting as a “wake-up call” which meant health practitioners could not turn a blind eye to risky behaviour.

But they were divided over the rule’s effectiveness and troubled by the focus on past behaviour rather than future risk.

Further, their willingness to report impaired practitioner-patients was limited by considerations of professional loyalty and patient confidentiality. Some were also uneasy about the effect on their own reputations.

To date, debate in Australia about mandatory reporting had not been informed by the experience of practitioners involved in treating impaired colleagues, the authors said. 

Empirical research had established only that such reporting by treating doctors was very rare. 

Treating practitioners were responsible for only 10% of the 816 mandatory reports made to AHPRA over a 13-month period, according to the study. The rest were made by non-treating colleagues, employers or educators. 

 “When coupled with available data regarding the prevalence of impairment among health practitioners, these findings indicate that, even in the presence of a legal duty, treating practitioners remain unlikely to report their practitioner-patients,” the study said. 

The authors observed a “strong preference” among practitioners for managing such patients confidentially.

Several interviewees said if they felt a report was necessary it was “good practice” to discuss the need with the patient-practitioner and encourage them to self-report. 

Treating practitioners were worried about breaking patient confidentiality, a step that would likely destroy the therapeutic relationship and could dissuade other impaired practitioners from seeking care. 

Some said they offered patient-practitioners extra confidentiality – such as using a pseudonym for their medical records – to win their trust.  

A recent review of mandatory reports by treating doctors showed most had occurred where a patient lacked insight, was dishonest with the treating practitioner or showed reckless disregard for patient safety, the study said.

The finding that practitioners’ confidence in regulatory authorities influenced their reporting decisions was an “unanticipated” result of the research. 

The authors called on regulators and professional bodies to ensure a “fair, sensitive and timely response” to mandatory reports. 

They said practitioners needed to be better informed about the scope and function of the law, to avoid an “exaggerated sense of their reporting obligations”.

The Australian rule goes further than similar regulations in New Zealand and some US states, in that it applies to practitioners and students across 14 health professions. 

A second distinction is that it is triggered by the identification of a past risk of substantial harm to patients rather than future risk; a third is that reporting is required even when the patient is under approved treatment. 

“Even supporters of the law should accept that it has a flaw that is out of step with similar regimes in other places and should be rectified,” the authors wrote.

The AMA and the RACGP have long opposed treating practitioners being subjected to the mandatory reporting obligation.  Exemptions are in effect only in Queensland and Western Australia. 

BMJ Open; 19 December