Mandatory Notification of Colleagues Notifiable Conduct

The National Registration and Accreditation Scheme for health practitioners (the Scheme) was introduced on 1 July 2010. As part of the Scheme, all registered health practitioners are now legally required to report any other registered health practitioner who has behaved in a manner that constitutes "notifiable conduct".

Making a mandatory notification is a serious step to prevent the public from being placed at risk of harm and should only be taken on sufficient grounds.

What is "notifiable conduct"?

Notifiable conduct is defined in the Health Practitioner Regulation National Law Act 2009 (the National Law) and means the practitioner has:

• practised the practitioner's profession while intoxicated by alcohol or drugs; or
• engaged in sexual misconduct in connection with the practice of the practitioner's profession; or
• placed the public at risk of substantial harm in the practitioner's practice of the profession because the practitioner has an impairment; or
• placed the public at risk of harm because the practitioner has practised the profession in a way that constitutes a significant departure from accepted professional standards.

"Impairment" is defined in the National Law as a person who has "a physical or mental impairment, disability, condition or disorder (including substance abuse or dependence) that detrimentally affects or is likely to detrimentally affect the person's capacity to practice the profession". It should be noted that the practitioner's impairment must place the public at risk of substantial harm for the threshold for mandatory notification to be met.

Who is required to report "notifiable conduct"?

The Scheme imposes a duty on all registered health practitioners and employers to report notifiable conduct. This means that there is a legal obligation to report a registered health practitioner who the notifier, in the course of practising their profession, has formed a "reasonable belief" (see below) that the practitioner has behaved in a way that constitutes notifiable conduct.

The 14 health professions which are currently covered by the Scheme are:

• Aboriginal and Torres Strait Islander health practitioners
• Chinese medicine practitioners
• chiropractors
• dental care practitioners
• medical practitioners
• medical radiation therapists
• nurses and midwives
• occupational therapists
• optometrists
• osteopaths
• pharmacists
• physiotherapists
• podiatrists
• psychologists.

The obligation to make a mandatory notification applies to the conduct or impairment of all registered practitioners, and not just those in the same health profession as the practitioner who is making the notification.

Education providers also have an obligation to make a mandatory notification in relation to students, if the provider reasonably believes a student who is enrolled with the provider, or who is undertaking clinical training with the provider, has an impairment that in the course of the student undertaking clinical training, may place the public at substantial risk of harm.

Are there any exceptions to the requirement to make a mandatory notification?

There are particular exceptions which relate to the circumstances in which the practitioner forms the reasonable belief about notifiable conduct. Exceptions to the requirement of practitioners to make a mandatory notification include where the practitioner:

• Is employed or otherwise engaged by a professional indemnity insurer. That is, medical practitioners who are employed or engaged by MDA National are exempted from the obligation to make a mandatory notification.
• Is exercising functions as a member of a quality assurance committee, council or other body which prohibits the disclosure of the information.
• Reasonably believes that someone else has already made a notification.

Also, in Western Australia only, practitioners are exempted from the reporting requirements in the course of providing health services to other health practitioners or students.

What is "reasonable belief"?

The threshold to trigger the requirement to report notifiable conduct in relation to a practitioner is high, and the practitioner or employer must have first formed a "reasonable belief" that the behaviour constitutes notifiable conduct. For practitioners reporting notifiable conduct, a reasonable belief must be formed in the course of practising the profession.

A reasonable belief requires a stronger level of knowledge than mere suspicion. Generally it would involve direct knowledge or observation of the behaviour which gave rise to the notification. Mere speculation, rumours, gossip or innuendo are not enough to form a reasonable belief. However, conclusive proof is not needed. A report should be based on personal knowledge of facts or circumstances that are reasonably trustworthy and that would justify a person of average caution, acting in good faith, to believe that notifiable conduct has occurred or that a notifiable impairment exists.

How do I make a notification?

The National Law provides for notifications to be made to the Australian Health Practitioner Regulation Agency (AHPRA), which receives notifications and refers them to the relevant Board. The notification should be made as soon as practicable and include the basis and the reasons for the notification; that is, practitioners, employers and education providers must say what the notification is about.

Practitioners should document the reasons for the notification including the date and time that they noticed the conduct or impairment.

Am I protected if I make a notification?

The National Law protects practitioners, employers and education providers who make notifications in good faith (well-intentioned or without malice). Protection is provided from civil, criminal and administrative liability, including defamation, for practitioners making notifications in good faith.

Making a notification is not a breach of professional etiquette or ethics, or a departure from accepted standards of professional conduct.

The National Law also provides for voluntary notifications for behaviour that presents a risk but does not meet the threshold for notifiable conduct, and similar protections apply for voluntary notifications.

What if I fail to make a notification?

There are no penalties prescribed under the National Law for a practitioner who fails to make a mandatory notification; however, a practitioner who fails to make a mandatory notification when required to do so may be subject to disciplinary action by their registration Board.

There are consequences for an employer who fails to notify AHPRA of notifiable conduct. If AHPRA becomes aware of such a failure, they must give a written report about the failure to the responsible Minister for the participating jurisdiction in which the notifiable conduct occurred. The Minister must report the employer's failure to notify to a health complaints entity, the employer's licensing authority or another appropriate entity in that participating jurisdiction.

Current experience with mandatory reporting

In 2010 -2011 AHPRA received 428 mandatory notifications relating to registered health practitioners, representing 8% of the total notifications¹. Nurses comprised 58% and medical practitioners comprised 34% of these mandatory notifications. Pharmacists, psychologists, physiotherapists, midwives and dentists were the subject of a smaller number of notifications and there were no mandatory notifications in relation to chiropractors, optometrists, osteopaths and podiatrists.

Medical practitioners had the highest rate of mandatory notifications, at 16 per 10,000 medical practitioners. In comparison, there were seven per 10,000 nursing mandatory notifications and six per 10,000 mandatory notifications related to pharmacists.

Approximately 60% of the notifications were made by employers and 40% by other health professionals. There was considerable variation in the rate of mandatory notifications across the states and territories. Mandatory notification rates were highest in South Australia with 27 notifications per 10,000 practitioners, compared with a national rate of eight per 10,000 practitioners.

The basis for nearly 60% of the mandatory notifications was that the practitioner was placing the public at risk of harm due to practice that constituted a significant departure from accepted professional standards. Impairment accounted for nearly 30% of notifications, sexual misconduct comprised approximately 7% of notifications and intoxication was involved in 4% of cases.

Of the mandatory notifications assessed during 2010-2011, 57.7% were referred for investigation. In 6% of cases immediate action was taken. The relevant Board took no further action in 16.8% of cases.

In 2011-2012, the overall number of mandatory notifications increased by about 40% compared to 2010 -2011². Nurses accounted for 54% of notifications and medical practitioners for 28%.

South Australia continued to have the highest rate of mandatory notifications, while Victoria had the lowest rate.

The medical profession had the highest notification rate at 22.3 per 10,000 practitioners on a national basis.

The source of mandatory notifications about registered practitioners was evenly divided between employers (49%) and practitioners (51%).

The reason for the mandatory notifications involving medical practitioners was:

• 89/149 placed the public at risk of harm due to practice that constituted a significant departure from accepted professional standards
• 35/149 impairment that placed the public at risk of substantial harm
• 9/149 practised under the influence of drugs or alcohol
• 8/149 sexual misconduct in connection with practice (Note: 8 cases were not classified).

In about 60% of the mandatory notification cases closed in 2011-2012, the relevant Board determined that no further action was required.

Further reading

Medical Board of Australia. Guidelines for mandatory notifications.

1 The Australian Health Practitioner Regulation Agency and the National Boards, reporting on the National Registration and Accreditation Scheme, Annual Report 2010-11. Available at: ahpra.gov.au/Legislation-and-Publications/AHPRA-Publications.aspx.
2 The Australian Health Practitioner Regulation Agency and the National Boards, reporting on the National Registration and Accreditation Scheme, Annual Report 2011-12. Available at: ahpra.gov.au/Legislation-and-Publications/AHPRA-Publications.aspx.