The regulator now has the power to identify practitioners under investigation. When should it be allowed to use it?
The RACGP, ACRRM and AMA failed to stop AHPRA’s bid to change national law last year, but there’s one key battleground left.
Late last year, the National Law governing health practitioners was changed to allow the regulator to warn the public about serious risks posed by registered clinicians who are the subject of an investigation or disciplinary proceedings.
This move was not popular among doctors, with fears that individual clinicians could have their reputation damaged on the basis of an accusation alone.
AHPRA maintains that the changes do not represent “a broad power to enable AHPRA or the National Boards to ‘name and shame’ registered health practitioners or other people being investigated before there is a formal outcome”.
The only jurisdiction in which the power will not apply is NSW, where the Health Complaints Commission is responsible for handling complaints.
The commission already has the ability to make a statement about health practitioners, and can warn the public about specific treatments or health services where there is a risk to public safety.
Over the coming weeks, the regulator will come up with a guideline laying out the circumstances in which it will be able to issue public statements.
Under the proposed guidelines, the criteria for issuing a statement will require AHPRA or one of the boards to form a “reasonable belief” that 1) the clinician has contravened some part of the National Law or is the subject of an investigation under Part 8 of the National Law, and 2) that their health, performance or conduct poses a serious risk to other people, and 3) that it is necessary to issue a public statement.
“We anticipate this new power would more likely be used for serious matters involving unregistered people as opposed to currently registered practitioners,” AHPRA said.
“This new power … [is expected to only] be used judiciously and will only need to be used in a small number of cases where the public would be left at serious risk unless a public statement was made.”
A public statement will not come out of the blue, either – a “show cause” process will be in place, and once a decision to make a statement is made, AHPRA will have to wait one business day before it published.
The statement is considered “made” when AHPRA or one of the boards posts it to its website, and it will be able to publicise the fact that a statement has been made via social media or a press release.
Affected practitioners will be notified via email and have that one day to appeal and file a stay application to AHPRA or the board that was investigating them.
A stay application has to be submitted with an appeal request in order to delay publication, and even then the board or AHPRA will go ahead with publishing if it believes the matter is urgent.
Otherwise, it will delay publication until a tribunal can discuss whether a stay is warranted.
If the agency or board decides to revoke its own announcement, it will have to announce that, too.
In its feedback submission, the AMA wrote that the new powers were an “abrogation of the principles of natural justice” and was particularly outraged about the 24-hour window to file an appeal.
“The use of these powers will potentially ruin the professional standing of a practitioner and seriously injure their mental health,” the submission read.
“This justifies a longer timeframe to ensure proper consideration can be given to how these proposals will work in practice and to minimise the possibility of permanent damage being done to practitioners where a more thorough investigative process ultimately determines that the issuing of a statement was not justified.”
ACRRM, in its submission, focused on the vague language.
“It is an essential feature of the rule of law that legislation be clear and be able to be understood by those who are bound by it,” it said. “The college has previously raised concerns that in several places the legislation is too broad in scope, lacking in the necessary detail and prone to ‘catch-all’ phraseology.”
The rural college specifically called out the wording of the section on who would be responsible for the final decision to make a statement or not.
The RACGP, meanwhile, raised concerns over the potential for social media “pile-ons”, especially in an instance where the practitioner is later cleared of any wrongdoing.
“As information published on social media platforms is enduring, and social media platforms are often reluctant to edit or remove content, it is imperative that further detail regarding how social media statements will be managed is provided,” the college said.
The RACGP wants more detail around how AHPRA will ensure that any corrections to a statement are as prominent as the original statement; removing the statement from AHPRA’s website, for example, will not do.
The onus for this task should rest with the regulator, not the affected individual, the RACGP said.
“AHPRA has an obligation to provide support to practitioners to minimise the mental health impacts of a public statement, including referral to appropriate support services and resources,” the college submission read.
“The proposed approach provides limited clarification around areas of significant concern for practitioners, particularly threshold tests and the making, revision or revoking of public statements.”
