The notifications process is stressful for health practitioners and can have a detrimental impact on their health, reputation and livelihood. This chapter examines these issues and the particular challenges posed by vexatious, anonymous and mandatory notifications. It also explores the adequacy of support for health practitioners subject to a notification, and the experience of notifiers going through a notifications process.
Impact on practitioners
Health practitioners described receiving a notification as ‘the worst experience of their life’, and that, regardless of whether there is a case to answer, practitioners experience high levels of shame and guilt.
The committee heard from peak bodies and individuals subject to notifications about the significant stress caused by notifications and the impact of the process on the mental and emotional wellbeing of practitioners.
Dr Penny Caldicott, President of the Australasian Integrative Medicine Association told the committee that the stress caused by the notifications process has broad ranging ramifications:
… marriage break-up, loss of homes, closure of practices and, again, patients being very distressed by these procedures, particularly because they are often either losing their doctor or having a doctor look after them who is literally impaired by the amount of stress that they're under.
Mental health and suicide risks
The committee heard that some health practitioners subject to the notifications process experience poor mental health and are at a high risk of suicide. Several inquiry participants reported health practitioners having suicided, or experienced suicidal ideation, during a notification process. According to Dr Adrian Sheen, Director of the Australian Doctors Federation:
The sad truth is the suicide rate for doctors is far higher than in the general community, and for every doctor suicide, I suggest to you, there may be 20, maybe more, doctors that are severely depressed.
The committee heard that the impact the notifications process has on the health and wellbeing of practitioners is disproportionate to the risk to public safety. Dr Antonio Di Dio, President of the Australian Medical Association ACT (AMA), encapsulated the testimony from many witnesses—especially doctors:
It would be fair to say that there's not a great deal of love for this scheme in many parts of our profession, particularly in how it impacts on the lives and mental health of so many of our colleagues and friends and through the fear it creates … I get many calls a week from distressed and/or suicidal doctors, and a great number of them are part of a process which they describe as Kafkaesque.
Uncertainty and reputational damage
The uncertainty resulting from the length of time it can take to finalise an investigation, without being given any reason for the delay, was regularly cited as a reason for the process being so distressing. Dr Kelly Nickels, Joint Acting General Manager Professional Conduct at Avant Mutual Group, told the committee:
Even a minor complaint hanging over a doctor's head for some weeks to a few months can be extraordinarily distressing. But, even more importantly, complex and serious matters can languish for months, even years, with little to no discernible progress.
The reputation damage caused by a notification was also highlighted to the committee. Dr Michael Wright of the Royal Australian College of General Practitioners explained:
… regardless of the eventual outcome, the processes can cause reputational damage and undue stress on the practitioner.
The Medical Consumers Association’s submission described the impact on a practitioner’s business: ‘[d]elays and appeals, even successful appeals … allows time for their reputation to be ruined and for competitors to capture their market niche’.
Addressing the stress of the notifications process
AHPRA told the committee that there has been an increased focus on acknowledging and mitigating the significant emotional and professional impact of a notification on a health practitioner.
A range of resources have been developed to help practitioners to understand the notifications process, including addressing common myths and misunderstandings that commonly cause practitioners stress with the process.
The committee also heard that AHPRA staff have been trained and provided resources and support to respond to people in distress and threatening self‑harm or suicide.
It was also acknowledged to the committee that improving timeliness would significantly reduce the stress of the notifications process. According to AHPRA:
We recognise that for registered health practitioners, having a concern raised about them is very stressful. Making sure that our regulatory processes are timely is an important part of addressing that stress.
However, as discussed further below, inquiry participants suggested that the existing supports available to health practitioners are lacking, and that more can be done to prevent harm.
Former AHPRA employee, Mr David Gardner, observed that a restriction or suspension of registration can result in ‘huge losses for a practitioner’ but that there is no compulsion or incentive for the national regulators to resolve matters quickly. He suggested there should be a compensation scheme for practitioners, as is provided for in the Queensland legislation.
The committee heard that vexatious complaints are some of the most distressing notifications received by health practitioners, as they are intended to bully or harass a practitioner, as a result of a commercial dispute, or for other inappropriate reasons.
In its submission, Australian Health Practitioners Advisory Solutions said:
AHPRA has allowed itself to become weaponized such that complainants, who are commonly other doctors, are able to further their own interests by using AHPRA to hurt, slow down or distract their competitors.
Impact on practitioners
The committee heard about the significant personal impact vexatious complaints have on practitioners. Dr Di Dio of the AMA told the committee these notifications can be devastating:
If you want to ruin a doctor's life, all you really have to do is make a complaint against them and walk away. There will be no consequences against you. Certainly 90 per cent of the time the doctor will be found to have done nothing wrong, but you will have ensured that that doctor has a year of utter misery.
In its submission, the Australian College of Midwives said vexatious complaints can lead to longstanding trauma, particularly as the notification process can take months or years to finalise.
APHRA’s 2017 report Reducing, identifying and managing vexatious complaints found vexatious complaints account for less than one per cent of notifications received, and said there is greater risk of people not reporting concerns than of people making truly vexatious complaints. The report noted:
Many stakeholders apply a loose definition in which ‘vexatious complaint’ means any complaint that does not result in substantive regulatory action (that is, defined by its outcome), or causes unpleasant experiences for the subject (that is, defined by its effect on the subject).
Ms Leanne Boase, President of the Australian College of Nurse Practitioners, told the committee that this proportion may not be accurate, and in her experience the number of vexatious notifications is much higher. Dr Di Dio of the AMA agreed:
I think it is higher than AHPRA claim. I don't think that they're being misleading in any way. Anecdotally, I feel that, across the hundreds of doctors that I know, the number is higher than that. Furthermore, even one per cent of 13,000 notifications is 130 people last year alone.
The Australian College of Midwives observed that the notifications process has difficulties separating ‘negligence and malpractice from personal grievances’.
Actions taken by AHPRA
The committee’s previous inquiry raised concerns about how vexatious notifications are handled, and recommended AHPRA and the national boards develop a framework for identifying and dealing with these complaints.
In December 2020, AHPRA published a guide for staff to assist them in identifying and dealing with vexatious notifications. In addition, the code of conduct for doctors was revised by the Medical Board of Australia to clarify what constitutes a vexatious complaint, and to explicitly require practitioners to not make these types of notifications about other practitioners.
The new framework was welcomed by some inquiry participants, although it was suggested AHPRA needs more resources to make it work efficiently.
However, AHPRA’s Community Reference Group said the new framework does not sufficiently clarify the definition of ‘vexatious’. It also suggested the framework may inadvertently act as a disincentive to consumers from making complaints instead of deterring practitioners, who are the people most likely to make vexatious complaints:
Without a more considered and clear definition of what a ‘vexatious’ complaint is, any efforts to curb or prevent them run the risk of failing to achieve their stated aims, while also putting the public at risk by casting an unduly broad net that falsely or inappropriately labels (or threatens to label) legitimate concerns as ‘vexatious’.
AHPRA acknowledged that identifying a vexatious complaint is inherently difficult because it demands an assessment of the motivations of the notifier. It noted that since the new framework was introduced, AHPRA staff has been trained to identify potential indicators of vexatiousness and question notifiers and practitioners about vexatious motivations. It told the committee:
The framework is being applied by Ahpra staff when triaging notifications and since its introduction very few notifications have been identified as vexatious. However, it is relatively early to have data trends since the publication of the framework.
The National Health Practitioner Ombudsman, Ms Richelle McCausland, advised the committee that she would formally review the new framework for its effectiveness in December 2021.
Penalties and compensation
A number of submitters called for compensation for the ‘emotional, psychological, social, professional and financial strain and stress as a consequence of such ill-founded investigations’. They also said notifiers who make vexatious complaints should be made to sign a statutory declaration or penalised to create a significant deterrent.
One of the recommendations from the committee’s previous inquiry was to consider making compensation available to health practitioners the subject of vexatious complaints. The Australian Government responded that it ‘does not support actions that could discourage people from raising their concerns with AHPRA’.
Concerns were also raised by witnesses about notifications that are made anonymously. Witnesses reported that anonymous complaints are difficult to deal with because the practitioner has little or no context for their response. They also said that natural justice implies the respondent has a right to know who the complainant is.
Dr Zena Burgess, Chief Executive Officer of the Australian Psychological Society, said anonymous complaints are a ‘huge concern’ and called for AHPRA to screen out these notifications more effectively.
Dr Anchita Karmakar, Chief Executive Officer of Australian Health Practitioners Advisory Solutions went further, and told the committee that anonymous complaints should not be permitted because the subsequent investigation can have devastating effects:
I can say that I've lost a colleague of mine who was literally two weeks off getting a phone call from AHPRA to say, 'You've been completely exonerated,' when she took her life. That was because of the fact that it was obviously frivolous. It was obviously vexatious, but she was not given the contextual information.
The role of anonymous complaints
Ms Sue Dawson, the Health Care Complaints Commissioner for New South Wales, told the committee that there are good reasons why a notifier may wish to remain anonymous, such as fear of retribution.
Mr Stephen Mason, Chief Executive Officer of the Australian Patients Association, agreed and said anonymous complaints often come from within the healthcare sector:
… they could be a nurse or someone at a clinic—and they fear for their job. They know what happens to whistle-blowers; they often end up getting persecuted or lose their job.
A review of AHPRA’s confidentiality safeguards by the National Health Practitioner Ombudsman concluded that ‘while it is ideal if the notifier’s identity is disclosed to the practitioner’ there are circumstances where it is appropriate not to do so:
where there is a risk the notifier may be intimidated or harassed;
to protect an ongoing relationship between the parties – for example, if they are colleagues; and
to remove any perceived barriers to reporting concerns.
Mr Matthew Hardy, National Director of Notifications at AHPRA, told the committee that under the current laws anyone can make a notification—including anonymously. He noted that it is up to AHPRA to determine whether the anonymous notification is serious enough to warrant action.
The committee heard that in NSW, the HCCC also investigates anonymous complaints if a serious concern about potential harm has been raised. However, notifiers are cautioned that if they chose to make an anonymous complaint, it may be difficult to investigate, and the inability to clarify information may mean an investigation needs to be discontinued.
The committee also heard that in NSW, there are penalties for making false allegations in notifications, which can act as a deterrent to frivolous or vexatious notifications.
The National Health Practitioner Ombudsman, in its review of AHPRA’s confidentiality safeguards, noted that in other jurisdictions it is an offence to harm or intimidate a person who has made a complaint about a practitioner however there is no such offence under the National Law.
Under the National Law, registered health practitioners, employers and health education providers are required to make a mandatory notification to AHPRA about a health professional’s conduct if it poses a risk to the public.
This includes concerns about a practitioner’s physical or mental impairment, intoxication while practising, any significant departure from accepted professional standards and sexual misconduct.
The committee heard that the mandatory reporting requirements are preventing health professionals who might be unwell from seeking help and treatment.
For example, Dr John Quinn of the Royal Australasian College of Surgeons, told the committee his organisation is ‘concerned that doctors may delay seeking help, or not seek help at all for treatable mental health issues, which further endangers the doctor and also puts patients at risk’.
Evidence from the AMA added that the fear of consequences remains a ‘palpable barrier’ to doctors seeking help. According to Dr Di Dio:
We are still losing too many colleagues every year because they are not confident that they can seek help without risking their livelihoods and careers.
Western Australian model
In Western Australia, health professionals are exempt from mandatory reporting obligations for practitioners and students in their care, but they may choose to make a voluntary notification to protect public safety.
In 2011, an inquiry by the Senate Standing References Committee on Finance and Public Administration recommended:
… the Commonwealth Government seek the support of the Australian Health Workforce Ministerial Council to implement a review of the mandatory notifications requirements and in particular take into account the Western Australia model of mandatory reporting.
Then in 2014, the Council of Australian Governments (COAG) Health Council commissioned an independent review of the National Scheme, which also recommended the National Law be amended to ‘reflect the same mandatory notification exemptions for treating practitioners established in the Western Australian law.’
In response, the National Law was amended in 2019 to raise the threshold for health professionals to make a mandatory notification about a practitioner under their care. The amendments changed the reporting obligations for treating practitioners by establishing a higher risk threshold for treating practitioners to report impairment, intoxication or practice that significantly departs from accepted professional standards.
Further reforms needed
The committee heard that the 2019 reforms are welcome but do not go far enough. Inquiry participants called for the Western Australian model to be adopted in its entirety. Avant Mutual told the committee the reforms would:
… reduce real and perceived barriers to treatment, so that doctors can obtain the treatment they need without the fear of being reported, and the potential impacts on their personal and professional lives.
The Royal Australasian College of Surgeons’ submission argued the Western Australian model would further protect the public from risk, as doctors who seek treatment will ‘in fact be more likely to provide safe care for the community’.
The AMA explained the Western Australian model would also reduce the impacts on doctors’ personal lives, as their families suffer when a practitioner is unwell and does not seek treatment. The submission concluded:
With no evidence that the WA model is doing anything other than improving practitioner health, and therefore, improving consumer protection, the AMA believes that Australia should choose to implement the tried and tested WA model. There appears to be no reason not to adopt the WA model as a first choice. It has the benefit of not only being simple, but having been proven to work, with no downsides, and supported by most peak groups.
The National Health Practitioner Ombudsman, Ms Richelle McCausland, told the committee that it is ‘critical that barriers to health practitioners seeking treatment are eliminated or reduced wherever possible’.
Support and prevention
A number of participants in the inquiry said that because the impact the notifications process can have on a practitioner is so significant, more extensive support mechanisms are required.
For example, Optometry Australia submitted that the support services offered by AHPRA are too generic, and questioned whether health practitioners would pursue these avenues for support in the context of a notification.
The Pharmacy Guild of Australia suggested that information and support for pharmacists is falling to professional indemnity insurances and the Pharmacist Support Services, and that AHPRA’s approach lacks ‘human contact’.
Currently, the national boards fund specific support services for medical practitioners, dentists, pharmacists, nurses and midwives who are the subject of a notification, but not for the other professions.
Dr Anne Tonkin, Chair of the Medical Board of Australia, told the committee:
We spend about $2 million every year to fund independent doctors' health services, and we have established an expert advisory group to identify and minimise the risk of suicide in practitioners subject to regulatory action.
When making initial contact with a practitioner about a notification, AHPRA provides information about these services (if relevant), and also advises the practitioner to seek help from their insurer, legal advisor or professional association.
The national regulators also conduct campaigns to encourage practitioners to seek help for their health and wellbeing during the notification process.
Ms Annie Butler, Federal Secretary of the Australian Nursing and Midwifery Federation, said a greater level of support is needed than is currently provided. She cited the Nursing and Midwifery Health Program in Victoria as a good example, which has more comprehensive mental health support as well as services for employers and managers.
The Australian College of Nurse Practitioners submitted that having peer support would assist greatly through the process, along with an independent and confidential counselling services for health professionals following notification and during any investigation.
Several peak bodies suggested the regulators could alert the relevant professional association when a practitioner receives a notification, as well as after an investigation has been finalised, so it can assist the respondent with support, education and supervision if required. They acknowledged the respondent’s agreement would be needed for this to occur.
The committee heard AHPRA and the national boards should be taking a more active role in preventing patient harm, rather than only acting after a concern has been raised with them.
Ms Patricia Hall, a member of the AHPRA Community Reference Group, told the committee that even though the primary role of AHPRA is to protect the public, its work is ‘completely reactionary’.
Associate Professor Lakra, of the College of Psychiatrists, said if AHPRA took a more proactive and educative approach the incidence of notifications would be reduced, which would benefit both practitioners and regulators. He noted that:
I think there is more that a regulatory scheme can do to prevent people from being in situations where their conduct is notified to AHPRA.
Witnesses suggested this could be achieved by working more closely with the professional associations, for example by sharing data about the most prevalent types of notifications so the associations could develop targeted information and education for their members.
The Australian Commission on Safety and Quality in Health Care’s submission said it is collaborating with the national regulators on raising awareness of the clinical governance responsibilities of practitioners, and encouraging compliance with the National Safety and Quality Health Service Standards.
In its submission, AHPRA said it has developed a wide range of resources and communication products to support registration standards, codes and guidelines. It said, ‘[w]e have an increased focus on our work in this area as a key mechanism by which we can support safe and professional practice by registered health practitioners.’
As discussed in Chapter 3, notifiers can experience disappointment with the process, because the focus is on health practitioners’ conduct and behaviour, and not on providing a remedy to the notifier.
In its submission, Maurice Blackburn said the National Scheme is not consumer-focused, which has led to a perception that the national regulators ‘look after their own,’ and that ‘[n]otifiers have reported feeling more like by‑standers than someone directly involved in such a process’.
Mr Stephen Mason, Chief Executive Officer of the Australian Patients Association, provided similar evidence noting that consumers feel there is an ‘inherent bias against the patient. They feel the whole system is geared in favour of the healthcare professional’.
The Australian Healthcare and Hospitals Association’s submission said that even deciding to come forward with a concern can be difficult for a consumer:
… the current system relies on individuals to bring a complaint which can be intimidating and time-consuming. Individuals can pay a significant personal cost when they challenge large institutions.
Ms Patricia Hall of the AHPRA Community Reference Group said that if a notifier wants to challenge a decision they are at a further disadvantage because they lack supports:
Many consumers do not have the articulation, the resilience and the assistance to navigate the steps and time frames of a formal complaint, nor is there the array of support for consumers that there is for health practitioners. At the same time, the consumer notifier may actually be a victim of unsafe or unprofessional actions of health practitioners.
It was suggested to the committee that because the complainant does not have the opportunity to refute or challenge what has been said about them, the regulator only receives part of the story. This results in a lack of trust in the process.
The AHPRA Community Reference Group noted that consumers regularly raise concerns that the information they have given to the national boards was not properly understood or considered.
AHPRA and the national boards said the service they provide to notifiers has improved since 2018, with changes to the National Law enabling AHPRA to provide more information to a notifier once the notification is closed.
In its submission, AHPRA said it has also adopted the practice of calling notifiers (and practitioners) before sending a final outcomes letter to explain the reasons for the decision.
The committee was deeply concerned and moved by the stories it has heard regarding the devastating impact of a notification on some health practitioners.
The committee acknowledges that there is a significant amount of stress involved in the notifications process for practitioners. This is unduly exacerbated by a range of issues with the process, including how regulators communicate with parties, a lack of understanding and transparency about the process, and of course, because of protracted timeframes and delays.
As discussed in the previous chapter, the committee is concerned with persistent issues with delay, communication and transparency in the notifications process. The committee is strongly of the view that AHPRA and the national boards must continue to prioritise reforms that will improve health practitioners’ and notifiers experience with the process.
To facilitate this improvement, the committee believes all registered health practitioners subject to a notification should have the right to request to meet in-person with any official undertaking a preliminary assessment or subsequent investigation.
Vexatious notifications pose significant challenges for health practitioners, and the committee recognises that the prevalence of these types of matters is of ongoing concern within many professions. The committee is pleased that AHPRA has revised and implemented a new vexatious complaints policy, however it is early in its operation, and will need to be closely monitored and reviewed with the assistance of the National Health Practitioner Ombudsman.
The committee was alarmed to hear about the detrimental impact of the mandatory reporting regime in the National Scheme. The evidence provided to the committee on the mental health risks within the medical profession, and the need to encourage and support practitioners to seek out help when they are unwell, was particularly compelling.
The arguments for a move away from the current mandatory reporting model to the Western Australian model were equally compelling. The committee notes that in addition to broad support amongst peak bodies, the Western Australian model was recommended to be adopted nationally by an independent review of the national scheme.
The committee recommends that the Ministerial Council agrees to remove the current mandatory reporting requirements and align the approach with the Western Australian model.
The committee is strongly of the view that the approach to providing support and preventing issues that result in notifications must be prioritised by AHPRA and the national boards.
The strong message coming through this inquiry is that dealing with notifications is stressful, and although improvements to the process will make a significant difference to practitioners’ experience, there must be greater accessibility to appropriate supports.
The committee notes that the approach differs between professions, and that the national boards fund support services for some of professions and not others. The committee encourages AHPRA and the national boards to consult broadly with professions about what is needed and address gaps in supports services as a matter of urgency.
The committee recommends that AHPRA and the national boards develop and fund a comprehensive strategy for providing tailored support for the notifications process to practitioners in all regulated professions.