The new AHPRA test will be the ‘public interest’, but what does that actually mean?
The recent decision to expand AHPRA powers has some doctors alarmed, fearing it will lead to more vexatious complaints and enable regulatory overreach.
Most controversial is the amendment which allows the regulator to take immediate action against a doctor or other health professional if it is in the “public interest”, rather than if they pose a “serious risk” to public health or safety which previously was the only justification for action.
“‘Public interest’ are always the weasel words used to go on these fishing trips,” former AMA president Dr Mukesh Haikerwal said.
Nobody wants someone who’s dangerous to be working, whether it’s because they are a danger to themselves or a danger to the public,” he said. But previous examples of bureaucratic, aggressive and inappropriate investigations had left him with little confidence in the regulator.
“So, to give them more power, unfettered, is even more troubling,” he said. “The basic problem is that you have got a judge, jury and hangman in one organisation.”
These sentiments were echoed by others on social media.
The amendment, which was passed in Queensland Parliament, is the first amendment to the law since the National Registration and Accreditation Scheme was introduced in 2010. It will apply nationally, except in Western Australia and South Australia which need to introduce their own laws to adopt the changes.
The regulator’s Chief Executive, Martin Fletcher, welcomed the changes, saying this would “address a number of safety concerns” and better protect patients.
“The changes will strengthen our management of notifications so we can better meet community expectations of regulation to ensure patient safety,” he said in a statement.
Dr Sara Bird, manager of MDA National’s medico-legal and advisory services, said that the broader remit of “public interest” was consistent with the regulatory system already in NSW.
One example of how it has been used was in the case of the Sydney GP Brian Crickitt, who was charged and later convicted of killing his wife with a lethal dose of insulin. Prior to being convicted, he was suspended on the grounds of “public interest”, despite there being no concerns about patient safety, she said.
“Public interest is about maintaining public confidence both in regulatory mechanisms – that they do the right thing – but also public confidence in the medical profession as well,” she explained.
To understand how “public interest” might be interpreted, Dr Bird said it was useful to look at the findings in Dr Crickitt’s case.
The Civil and Administrative Tribunal noted that “public interest” would factor in matters that “impact[ed] on the honour and integrity of the profession generally”, which included serious crimes, but also transgressions such as “failing to lodge taxation returns for an inordinate period”.
Dr Bird was surprised at that example, saying she thought it unlikely doctors would get suspended for not lodging their tax returns.
Under the new amendment, doctors and other health workers will also be required to provide information about everywhere they practise, regardless of the capacity in which they are engaged.
In addition, AHPRA now has stiffer penalties for individuals who continue to offer a type of health service, or use a protected or specified title after they have been instructed to stop, making it an offence with a penalty of up to $30,000.
AMA vice president Dr Tony Bartone understood why doctors were concerned about the changes.
“There’s nothing more stressful for a doctor to have a notification or a potential inquiry into their practice,” he said.
Dr Bartone said that AHPRA and the Board had improved their investigative processes over the years and he did not expect they would use this new remit unfairly, but added that the AMA would be watching closely to ensure that the powers are used judiciously.
A spokesperson for the regulator told The Medical Republic they did not believe the introduction would have any impact on the proportion of notifications referred for investigation.
“Any decision to use an immediate action power under the law is a serious step, subject to appeal,” she said.
“Over time, we expect that the use of the public interest test will be the subject of scrutiny by tribunals and higher courts. We will continue to adapt a judicious use of the new public interest immediate action test accordingly.”
