Australia: AHPRA Disciplinary Tribunal case notes

Last Updated: 27 May 2016
Article by Jennifer Davis and Hamish Broadbent

The Australian Health Practitioner Regulation Agency ("AHPRA") is the organisation responsible for the implementation of the National Registration and Accreditation Scheme across Australia. Each health profession that is part of the Scheme is represented by one of 14 National Boards. The primary role of the Boards is to protect the public and thus each Board is responsible for investigating complaints about service provision and, if necessary, initiating disciplinary action against their registrants before various tribunals.

A recent decision of the Northern Territory Health Professional Review Tribunal emphasises the need for medical practitioners to look to community expectations to guide the issues of consent and contact in the doctor-patient relationship.

The Tribunal found that a specialist general practitioner had engaged in unsatisfactory professional performance during pre-employment medicals of two female patients.

The Tribunal acknowledged the GP was not sexually motivated in his actions and had been following standard procedure for cardio-vascular examinations and inguinal hernia testing, which required them to disrobe to their underwear.

Nonetheless, it found the GP had acted in a cavalier and insensitive manner by not communicating properly what would be required in each of the examinations. Further he had not obtained their specific consent for close and intimate physical contact.

As a result the GP's registration was imposed with restrictions requiring education, mentoring for six months, and an approved chaperone to be present for intimate examinations of women until the mentoring was complete.

This case emphasises the need for medical practitioners to maintain clear lines of communication with patients during examinations of a personal nature.

The State Administrative Tribunal of Western Australia recently approved a settlement in a proceedings initiated by the Medical Board of Australia against a medical practitioner who had failed to declare his criminal history.

The practitioner had provided a statutory declaration which included a false statement, being conduct that was inconsistent with him being a fit and proper person to hold registration as a medical practitioner.

Since early 2015 AHPRA had been checking international criminal histories as well as Australian criminal history, on that basis that this provides greater public protection while being fair and reasonable for practitioners.

The Tribunal found that the practitioner's registration was improperly obtained and that he had behaved in a way that constitutes professional misconduct. The concealing of the criminal history occurred over a sustained period of time and in circumstances where he either knew, or ought to have known, the seriousness of the criminal history he was concealing.

The Tribunal order that the practitioners registration be cancelled, he be disqualified for applying for registration for a period of 2 years, and to pay the Board's costs.

In February 2016, the Queensland Civil and Administrative Tribunal (QCAT) found that a medical practitioner, a specialist general surgeon and paediatric surgeon, had engaged in unsatisfactory professional conduct for failing to appropriately clinically manage a patient prior to surgery in July 2008.

The Medical Board of Australia (the Board) commenced disciplinary proceedings against the medical practitioner following the death of a child, then aged 4 years, who died in July 2008, due to postoperative sepsis after the excision of a lesion from his neck performed by the practitioner.

An autopsy report stated that the cause of death was sepsis due to or as a consequence of streptococcus pyogenes soft tissue infection of the neck. The practitioner admitted to not taking a pre-operative swab of the neck legion to exclude the more serious infection caused by streptococcus pyogenes (as opposed to his pre-operative diagnosis of the cause of infection as mycobacterium avium intracellere).

The practitioner admitted that he should have administered antibiotics prior to surgery to prevent postoperative infection. Expert medical opinion indicated that these steps should have been taken. An agreement between the Board and the practitioner was reached regarding an appropriate sanction and reprimand.

The ACT Civil and Administrative Tribunal (ACAT) has recently reprimanded a doctor (who was the practice principal) and imposed conditions on his registration, for his failure to report another doctor's conduct at his practice who he knew had had a sexual relationship with a patient.

As practice principal, the doctor had become aware of the other doctors sexual relationship with a patient of the practice but had taken no action to report it to the Board or refer the patient to a medical practitioner in another practice or a psychologist for treatment. Instead he decided to see the patient himself.

The tribunal decided that the practice principal had engaged in professional misconduct by failing to refer the patient to another medical practitioner for treatment, failing to notify the Board of the notifiable conduct of another practitioner, and, as the offending doctor's employer, failing to take any action against him until the notifications were made.

The tribunal reprimanded the practice principal and ordered he be restricted from having any actual or perceived role as a supervisor for two years. He was also required to complete an intensive course on ethics and professional communications and have monthly meetings with a board appointed mentor to discuss issues, including cultural awareness.

The Victorian Civil and Administrative Tribunal (VCAT) has suspended the registration of a registered nurse and midwife for six months who failed to provide clinically appropriate midwifery care in the management of the home birth of a baby from a mother (Patient) who had previously undergone an emergency caesarean following obstructed labour.

The tribunal referenced a number of failures including failure to consult with a medical practitioner, failure to transfer the patient to hospital in an appropriate timeframe and not recommending that the patient was transferred to a hospital nearest to the patient's home.

After her admission, the Patient underwent an emergency caesarean, however, her baby was stillborn. A subsequent post-mortem of the baby confirmed the cause of death as severe bilateral congenital pneumonia in association with stage 2 Acute Placental Chorioamnionitis. Cord blood gases taken at birth showed a severe mixed acidosis with the worst features of both metabolic and respiratory acidosis.

The Patient also suffered complications as a result of the caesarean due to the presence of severe tissue oedema. This led to an extended hospital stay for the Patient with further hospital admission necessary for the treatment of sepsis and later surgery to reimplant her ureter.

The tribunal also reprimanded the midwife and imposed additional education requirements to be completed before she returns to practise as an independent or privately practising midwife. She will also be subject to specific conditions set out by the tribunal relating to her work practises, supervision and 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.

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Jennifer Davis
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