Introduction
The Health Practitioner Regulation National Law Act 2009 ('the national law') takes effect on 1 July 2010. The national law provides for the full operation of the national registration and accreditation scheme ('the scheme') for ten health professional groups.
The application of the national law
The health professions covered by the national law are chiropractors, dentists, doctors, nurses and midwives, optometrists, osteopaths, pharmacists, physiotherapists, podiatrists and psychologists.
Each of these health professions will now be regulated by a national profession-specific board, supported by state and territory committees and the Australian Health Practitioner Regulation Agency ('AHPRA'). The result will be one set of registration and professional standards, for each of these professions, Australia-wide. In addition to the implementation of national registration, the scheme provides for the management of complaints against, and health and performance arrangements for, registrants.
The scheme, whilst providing greater public protection, will result in a significant simplification of the regulation of health professionals and provide for a more flexible workforce.
New obligations for health professionals
New obligations apply to all health professionals registered under the national law, namely:
- All registrants (with the exception of non-practising registrants) must undertake continuing professional development as approved by the registrant's national board
- Each national board has developed recency of practice of requirements for its registrants
- All registrants must hold appropriate professional indemnity insurance, which insurance cover must comply with the standards developed by a registrant's board. Some of the professional indemnity insurance standards developed require run-off cover and retroactivity of cover. A number of the national boards are encouraging their registrants to seek brokerage advice about the appropriateness of current insurance arrangements
- All registrant's are required, at the time of annual renewal and at any time during the registration period, to advise the registrant's board of charges, convictions or findings of guilt for offences punishable by imprisonment
- Practitioners applying for initial registration must demonstrate minimum English language skills.
Mandatory reporting
Under the scheme all registered health practitioners, employers of registered health practitioners and educational institutions (in the case of registered students) are required to report any other registered health practitioner who has behaved in a manner that constitutes 'notifiable conduct'.
Notifiable conduct is defined in the national law as conduct where a practitioner has:
- Practised the profession whilst intoxicated by alcohol or drugs
- Engaged in sexual misconduct in connection with the practice of the practitioner's profession
- Placed the public at a risk of substantial harm in the practitioner's practice of the profession because the practitioner has an impairment
- 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.
The requirement to report arises where a registered practitioner forms a 'reasonable belief' that certain behaviour constitutes notifiable conduct. The threshold is, therefore, a high one, requiring something more than mere suspicion, speculation, rumour or innuendo.
Notably, the mandatory reporting obligations:
- Apply across registered health professional groups, with the result that for example a physiotherapist may be required to report a psychologist
- Apply to the treating practitioners of registered health practitioners
- Do not provide for relief from the reporting obligation on the basis of spousal privilege
- Do not apply to registered health practitioners:
- Employed by professional indemnity insurers
- Who are also legal practitioners providing legal services
- Who are members of a quality assurance committee, council or other body approved or authorised under legislation.
A registered practitioner who fails to make a mandatory notification when required may be subject to disciplinary action by their national board.
It remains to be seen whether these new mandatory reporting laws will result in a greater number of disciplinary and impairment investigations and a consequent increase in notifications to professional indemnity insurers providing policy coverage for inquiry costs.
Health, performance and conduct matters
The national law provides a framework for the investigation and management of both professional standard and conduct matters and impairment matters. Many of the states and territories will retain their professional standards and health programme staff, who will, from 1 July 2010, operate within the national law framework. In New South Wales, the Health Care Complaints Commission will continue to investigate complaints and manage disciplinary proceedings.
What next?
On 1 July 2012, Aboriginal and Torres Strait Islander health practitioners, Chinese medicine practitioners, medical radiation practitioners and occupational therapists will join the national scheme.
Conclusion
Whilst the national law significantly reforms the regulation of (participating) health professionals in Australia, it is anticipated that, in relation to the management of disciplinary and impairment matters, it will be 'business as usual'. Disciplinary and impairment matters will, by and large, continue to be investigated and managed locally, with hearings conducted within that jurisdiction's courts or tribunals.
The largest change, and that which has perhaps the most potential to impact on insurers, are the new mandatory reporting requirements.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
