3.1
Notifications provide an important mechanism for identifying and addressing potential risks posed to the public by the conduct of registered health practitioners. How notifications are handled, however, is equally important to ensure that parties are provided a fair, transparent, empathetic and accountable process.
3.2
This chapter looks at a range of issues arising with the notifications process, including confusion about where to take concerns, issues with timeliness and assessment of notifications, and concerns around clinical input, procedural fairness, and notification outcomes. The next chapter explores the significant impact of the notifications process, and of particular kinds of notifications.
Handling notifications
Overview of the process
3.3
Notifications received by AHPRA must be assessed, and if found to be within the remit of the National Law, referred to the applicable national board. The board has 60 days to decide whether or not the notification is within its remit. As discussed in Chapter 1, notifications concern the conduct, health and performance of registered health practitioners.
3.4
After reviewing a notification, the board can decide to take no further action, or take a range of actions including taking interim and immediate action (such as suspending a health practitioner’s registration); starting an investigation into the practitioner; or requiring a health or performance assessment.
3.5
Where the board decides to initiate an investigation, an investigator is appointed, usually an AHPRA employee. There are no statutory timeframes for the conduct of investigations; however, there is a requirement for written progress updates to notifiers and respondents at least every three months.
3.6
Investigations are to be conducted in a procedurally fair way, that is, the health practitioner under investigation should be given the opportunity to respond to allegations against them.
3.7
At the conclusion of an investigation, the investigator provides the board with a report which includes their findings and recommendations for action. The board then considers whether to take action and what action it will take.
3.8
Action can include referring the matter to another health complaints body, to a health or professional performance and standards panel, or to a responsible tribunal. Some notifications must be referred to tribunal where the conduct potentially constitutes professional misconduct.
3.9
The board also has a range of actions open to it, including cautioning a health practitioner or imposing conditions on their registration.
Notifications in co-regulatory jurisdictions
3.10
As discussed in Chapter 1, in New South Wales (NSW) and Queensland, responsibility for handling notifications is shared with state-based health complaints bodies. In those states, notifications are referred to as complaints.
3.11
In NSW, notifications are managed by the NSW Health Care Complaints Commission (HCCC) and the 15 health professional councils in that state. In Queensland, the Office of the Health Ombudsman (OHO) receives all complaints regarding registered health practitioners and decides whether to keep the complaint or refer it to a national board and AHPRA to manage.
3.12
Almost half of Australia’s registered health practitioners are in Queensland and NSW. Over half (55 per cent) of all notifications made about registered health practitioners are received by either the OHO or the HCCC. In 2020-21, there were 3 659 complaints about health practitioners made to the OHO in Queensland and 8 702 complaints made to the NSW HCCC. AHPRA received 10 147 notifications in the same year.
Where to complain
Confusion about where to take concerns
3.13
The committee heard that it can be confusing for the public navigating where to take their concerns. Ms Patricia Hall, a member of AHPRA’s Community Reference Group, told the committee:
It's a big ask to expect a consumer, who may in fact be harmed at the point of entry, to make a distinction between registered and unregistered practitioners, other … registered health personnel, and between the multiple entry points that they need to go through, without a navigator, without support.
3.14
A particular issue is whether a person should make a ‘notification’ about a registered health practitioner, as distinct from a ‘complaint’, which can include a broader range of concerns about a person’s experience with a health service, and may warrant remedies such as an apology, refund or compensation. While AHPRA and the national boards handle notifications, complaints are dealt with by health complaints entities in the states and territories.
3.15
AHPRA CEO, Mr Martin Fletcher, noted that in dealing with notifications, AHPRA’s role as a professional standards regulator is limited to looking at behaviour or clinical performance that gives rise to a concern about patient safety. Given this role, it was acknowledged that for consumers, the notifications process may not meet their needs or expectations:
… consumers experience greater satisfaction with a complaints process when it involves resolving the complaint (e.g. through explanation or apology). Complaint resolution is the fundamental work of health complaints entities and local health practices rather than the regulator.
Complaints that should be raised elsewhere
3.16
The committee heard that AHPRA and the regulatory bodies in NSW and Queensland receive a large number of matters that should have been raised elsewhere, including matters that should be dealt with by state-based health complaint entities.
3.17
The Queensland Health Ombudsman, Mr Andrew Brown, noted that more than half the matters received do not relate to registered health practitioners:
We get just under 10,000 complaints a year. Only 40 per cent of those relate to registered practitioners. Sixty per cent are other matters. Sometimes it's difficult for a consumer to unpick where they should go: are they complaining about a registered practitioner, or are they complaining about a service?
3.18
Both the NSW Health Complaints Commissioner and Queensland Health Ombudsman told the committee that their offices operate as a ‘single front door’ for health service complaints and that a key part of their role is getting matters to the right place as quickly as possible.
3.19
Similarly, the CEO of AHPRA, Mr Martin Fletcher, told the committee:
We've put a very big emphasis, when people first contact us, on talking to them about what they're looking for in raising a concern with us and then guiding them to the right place.
Education and awareness
3.20
The AHPRA Community Reference Group noted that patients and carers need to understand their right to safe and competent health care and what steps they can take to pursue their concerns through the different complaints and notifications pathways.
3.21
The committee heard that ‘more is required from a variety of sources’ to explain the role of AHPRA, the national boards, and health complaints entities respectively.
3.22
The AHPRA Community Reference Group suggested that further education and awareness campaigns should be pursued at the ‘grass roots level’ in relation to AHPRA’s role and the role of other complaint bodies. It noted that:
… education must occur in a way that does not separate the National Scheme from other health complaints schemes (like state-based health complaints commissioners), but which provides patients and carers with a seamless entry and referral process.
3.23
Mr Chris Leahy, Director of eHealth and Medication Safety at the Australian Commission on Safety and Quality in Health Care, told the inquiry his organisation is working with AHPRA to map out the existing pathways for consumer complaints, with the goal of simplifying the process.
Issues with co-regulation
3.24
The committee heard there is added confusion and double-handling involved in notifications in the co-regulatory jurisdictions. Witnesses noted that the different processes of regulatory bodies are not well understood, cause duplication in handling, and have resulted in delays.
3.25
In Queensland, for example, all matters are referred to AHPRA unless they are considered sufficiently ‘serious’. In 2019-20, the OHO referred 2 707 complaints to AHPRA, most (70 per cent) in the first seven days after receipt. The Queensland Health Ombudsman, Mr Andrew Brown, told the committee:
We work as hard as we can to stop the duplication of effort, and we're quite successful in that space. But it does make it complicated and a bit confusing for practitioners and consumers as well when they complain to us and then, within seven days, hear that we've referred the matter to another agency.
3.26
Several inquiry participants suggested that there should be uniformity across all of the states, and that the handling of notifications should be entirely standardised and national. Associate Professor Vinay Lakra, President of the Royal Australian and New Zealand College of Psychiatrists (RANZCP) explained why:
… the person who has complained does not know where they need to go and the practitioner also does not understand what the obligation of the different systems are, so it does make sense to have one system across the nation. We also know that there is a small number of practitioners who work across different states, and it also makes sense for them to be aware of one system across the nation rather than having more than one regulatory system.
3.27
The committee heard that in Queensland, in response to the recommendations of a state parliamentary inquiry, AHPRA and the OHO will be subject to a legislated joint consideration mechanism from December 2020, whereby both agencies will review each matter and agree on the best agency to deal with a notification.
Role of health practice or service
3.28
The committee heard that there is greater scope for the resolution of concerns directly with health practices and services, before they reach AHPRA.
3.29
According to AHPRA, health practices and services have a variable role in the management of complaints. It noted that in the coregulatory jurisdictions there is a requirement to attempt resolution with a health practitioner directly and this can be required by the local regulators.
3.30
It was suggested that notifications, particularly those that involve a single dissatisfying experience and result in no further action, should be directed to the health practice or service first for resolution. Ms Claire Bekema of the Pharmacy Guild of Australia told the committee:
… our members feel that they jump to this notification process rather than having a conversation to start with. If AHPRA, in receiving that notification, can ask the public: 'Have you had a conversation?', that might be a way of reducing the notifications and therefore the impact on practitioners.
3.31
The committee heard that in the nursing profession, notifications are commonly employment related, and are more appropriately dealt with by the employing health practice or service and not by AHPRA.
3.32
The Australian Commission on Safety and Quality in Health Care said simple, straightforward performance issues and ‘scope-of-practice’ issues should be dealt with locally:
We don't want to see them being fed off to AHPRA as a third-party independent and the hospitals not necessarily taking responsibility for that in the first instance.
3.33
It was suggested that the Queensland model, which enables the OHO to decide not to accept a complaint unless the notifier has first tried to resolve the matter directly with the healthcare provider, should be considered nationally.
3.34
It was also suggested that there should be an ability on the part of AHPRA and the national boards to make mandatory referrals of notifications back to health practices or services to manage.
Ability to refer matters
3.35
The ability to refer matters, including to health complaints entities, is set out in the National Law. Currently, at the conclusion of an investigation, a national board can refer a matter to another entity, including a health complaints entity, for investigation or further action.
3.36
AHPRA noted that the National Law was amended in 2017 to enable the national boards to make a decision that no further action is needed, and to close a matter, if it was referred to another entity—such as a state-based health complaints entity.
3.37
In 2019-20, AHPRA reported the second most common outcome in a closed notification, after ‘no further action’, was where the matter was being retained by a health complaints entity.
3.38
However, the committee heard concerns that matters are not routinely referred to health complaints entities unless AHPRA considers a regulatory response is necessary. In addition, that the process is cumbersome, because it requires consideration, seeking a response from the practitioner, and a determination before a referral is made.
3.39
Among the Tranche 2 reforms to the National Law, it is proposed that the national boards be given the power to refer the subject matter of a notification to ‘another entity’ at the preliminary assessment stage. In addition, following any referral, it is proposed that the board is also empowered to ask the entity for information about how the matter was resolved.
Timeliness
Protracted timeframes
3.40
The timeliness of the notification process was a common issue raised during the inquiry. This was also raised in the committee’s previous inquiries.
3.41
Submitters and witnesses acknowledged that timeliness has improved in recent years. However, the committee heard that unacceptable timeframes are still being experienced.
3.42
According to the Australian Medical Association (AMA), the number of notifications taking longer than three to six months to close is concerning:
As more than 80% of notifications for medical practitioners result in no further action from the [Medical Board of Australia], the AMA would expect to see this timeframe falling … Ideally the AMA would support no investigation taking longer than 2 years other than in exceptional circumstances.
3.43
The Australian College of Nursing said it was not uncommon for investigations to exceed six months, even where there was little substance to the allegations.
3.44
It was noted that delays are particularly common in complex and serious matters, and that this is having a detrimental impact on patient care, and the wellbeing of the health practitioner subject to the notification. According to Dr Kelly Nickells, Avant Mutual Group:
… complex and serious matters can languish for months, even years, with little to no discernible progress. Often in these more serious cases, doctors are hampered in their care of the public and the progression of their career for these prolonged periods by interim conditions limiting their practice.
3.45
The Royal Australian College of Surgeons (RACS) suggested to the committee that timeframes need to be reviewed and tightened.
3.46
Dr Zena Burgess, CEO of the Australian Psychological Society, told the committee that the initial assessment in particular should be faster.
Reasons for protracted timeframes and delays
3.47
Inquiry participants noted that the reasons for protracted timeframes and delays are not always clear.
3.48
According to AHPRA, the fact that an investigation takes time does not mean that there have been delays. The duration depends on a range of issues including:
the complexity of the issues being considered;
the response and submission timeframes on the part of the health practitioner, their insurer or legal representative;
time needed to seek expert opinions; and
delays in tribunals and courts.
3.49
Investigator workloads and staffing changes are also impacting timeframes, the committee heard. As discussed below, AHPRA’s workforce has been impacted by a significant increase (66 per cent) in the number of notifications received over the past five years.
3.50
In its submission, AHPRA said that there are some cases where ‘the time taken to investigate is beyond our control. Typically, these cases involve consideration by multiple agencies’.
3.51
AHPRA also noted that some matters are put on hold due to external factors, such as concurrent criminal investigations or coronial inquiries. AHPRA noted that in 2020-21 there were 345 matters on hold for an average of 99 days for this reason.
3.52
The National Health Practitioner Ombudsman (NHPO) told the committee that more work is needed to identify the root cause of delays, particularly in relation to notifications that proceed to investigation:
… we need to really focus on what those root causes of delay are. In the future, I think it would be really interesting to look at perhaps a model like the Office of the Health Ombudsman, where there are legislative time frames for dealing with matters.
Volume
3.53
The volume of notifications received by AHPRA has increased by 66 per cent over the past five years from 6056 in 2015–16 to 10 147 in 2020–21. In its submission, AHPRA acknowledged that the growth in notifications has placed pressure on its notifications staff and workloads.
3.54
The increasing number of notifications was credited to growing awareness of complaints and notifications processes, and an increasing number of registered health practitioners.
3.55
Inquiry participants suggested that AHPRA has been ‘inundated’ and that it needs to be better resourced to deal with the volume of notifications that it receives.
3.56
The CEO of AHPRA told the committee that it does not receive Australian Government funding for its operations and that no additional funding to undertake its notifications role has been sought or received.
3.57
In response to the committee’s 2017 inquiry, the Australian Government advised that any additional resourcing to improve timeliness should be addressed through the scheme and the management of registration fees.
Efforts to improve timeframes
3.58
During its 2017 inquiry, the committee recommended that AHPRA improve the timeliness of its processes, and called on the Australian Government to ensure AHPRA has additional resources for this to occur.
3.59
According to AHPRA, there has been steady reduction in the time taken to complete notifications over the past four years, with a decrease of 5.3 per cent in 2019-20. These improvements have occurred despite significant increases in the volume of notifications.
3.60
AHPRA told the committee that there has been ongoing work in this area, with increased resourcing and a sharper focus on risk assessment, which has resulted in an overall improvement in timeliness.
3.61
AHPRA reported in 2019-20 that the majority of notifications (71.6 per cent) were completed in less than six months. Of the notifications that had been open for more than 12 months as at 30 June 2020, 93.5 per cent (635) were under investigation.
Table 3.1: Closed notifications by average time taken to complete the matter
|
|
|
|
|
Less than three months
|
46.6
|
41.8
|
|
3 – 6 months
|
21.6
|
29.8
|
|
6 – 9 months
|
9.3
|
14.6
|
|
9 – 12 months
|
5.9
|
6.5
|
|
12 – 24 months
|
11.7
|
5.5
|
|
More than 24 months
|
4.9
|
1.8
|
Source: AHPRA, Annual Report 2019-20, p. 78.
3.62
AHPRA told the committee that its new risk-based approach, adopted in November 2020, deals more efficiently and effectively with low and medium risk notifications:
… lower risk matters can often be completed with additional early input from the relevant practitioner and the practitioner’s employer. Where we have evidence of strong individual and organisational risk controls in response to an adverse event or example of unsatisfactory practice, longer, more intensive investigation activity can thus be avoided.
3.63
However, AHPRA did acknowledge that the volume of notifications on hand, and the impact of the COVID pandemic on its operations, is still contributing to longer than desirable timeframes. According to Mr Matthew Hardy, National Director, Notifications at AHPRA:
That's unfortunate because, for four years successively, as we introduced these triaged changes, the time taken to assess notifications had been coming down... we are 100 per cent committed, to making those time frames return to pre-COVID levels.
3.64
The NHPO said more could be done at a systems level to improve timeliness. For example, each national board has delegated some of their decision-making powers, to various degrees, to its national committees, state and territory boards and/or to AHPRA. The NHPO suggested the boards could delegate more of these powers ‘so that AHPRA staff could make efficient decisions about notifications without having to wait for a board meeting’.
3.65
For cases that are currently referred to a tribunal for decision, it was also suggested there should be an intermediate decision-maker to reduce the burden on the tribunals and to improve timeliness.
Assessing and prioritising notifications
3.66
Some inquiry participants suggested that the way notifications are assessed and prioritised could also be improved.
Low risk notifications
3.67
The committee heard that low-risk notifications that are closed with no further action are taking up too much of AHPRA’s limited resources. The example was given of a notification that a doctor was eight minutes late to an appointment. According to one witness:
The majority of complaints about medical practitioners—71.1 per cent in 2019-20—are closed with no further action. These are the lowest-risk notifications, but they consume significant resources. We would say that resources should be allocated to the matters that present the highest risk.
3.68
The Royal Australian College of General Practitioners (RACGP) told the committee that a better triage system is needed to filter out ‘less significant’ complaints and to free up resources to support notifiers and practitioners through the process and take regulatory action where appropriate.
Potential ‘meritless’ notifications
3.69
The committee heard that high numbers of ‘meritless’ or ‘frivolous’ claims made to APHRA are not being identified and closed early in the process. It was also suggested that some of the notifications that AHPRA receives and progresses do not raise issues that legitimately risk public safety.
3.70
The Australian Psychological Society gave an example of a complaint made about a practitioner who, in a professional meeting, said that COVID lockdowns ‘felt like being under house arrest’:
They were reported to AHPRA and it took 3½ months for that to be investigated and for them to be found not to have been in breach of professional practice. That is the kind of thing that should be thrown out straightaway. AHPRA investigates everything without a grid as to risk to patient, risk to breach of the act.
3.71
The committee heard specific concerns about notifications relating to practitioners with ‘non-mainstream’ views or practices, including some who practice alternative therapies. It was suggested that these types of notifications have been inappropriately progressed through the notifications process when they do not risk public safety.
Reforms introduced by AHPRA
3.72
AHPRA told the committee that its risk-based approach to notifications ensures matters of significant risk progress to investigation, and lower risk matters are finalised more expeditiously. In addition, matters requiring immediate action by a board to protect public safety are prioritised.
3.73
According to AHPRA, the risk-based approach considers a practitioner’s overall regulatory history and practice setting, as well as the nature and context of the concerns raised by a notifier:
3.74
The committee heard positive feedback about the reforms, including from the NHPO. The AMA gave the example of a recent notification that was found to be unsubstantiated by AHPRA, and which was dealt with quickly, with the outcome communicated clearly, causing limited angst to the health practitioner.
3.75
Avant Mutual Group commented that the reforms use an educative approach, which encourages health professionals to reflect on the concerns raised in a notification and learn from it.
Clinical input
3.76
The committee made several recommendations relating to clinical input in the notifications process in its 2017 inquiry, specifically, that:
AHPRA and the national boards institute mechanisms to ensure appropriate clinical peer advice obtained at the earliest possible opportunity in the management of a notification;
AHPRA develop a transparent independent method of determining when external advice is obtained and who provides that advice; and
AHPRA consider providing greater remuneration to practitioners called upon to provide clinical peer advice.
Efforts to improve clinical input
3.77
AHPRA told the committee it employs registered health practitioners across all professions to provide clinical input throughout the notifications process, including during the initial assessment stage:
These registered health practitioners work alongside our regulatory staff to identify concerns or issues, understand risks, interpret clinical matters, and reference profession-specific guides, standards and codes.
3.78
In addition, all of the national boards and their delegated decision-making bodies include practitioner members. Where necessary, independent and expert opinion can also be sought by the boards in particular cases.
3.79
The committee heard that AHPRA has recently increased the number of registered health practitioners it employs to provide clinical input in the preliminary stages of the notifications process:
Since 2018, we have introduced a number of changes to the way we manage the assessment process that are about front loading—that is, getting more clinical input from both clinical advisors who AHPRA employ and from board members who make the decisions about each individual notification front loaded and happening as soon as we can.
3.80
The AMA noted positively the introduction of a clinical input team, which involves medical practitioners screening every notification to identify and stratify clinical risk. In their submission they noted this early clinical input has resulted in higher quality recommendations being made more quickly.
Ongoing issues
3.81
Despite these improvements, some concerns were raised about the management of clinical input provided by independent experts.
3.82
It was suggested that there needs to be greater transparency of the material provided to AHPRA by independent experts, and that health practitioners need to be given sufficient time and the opportunity to obtain an expert opinion in response.
3.83
RANZCP told the committee that AHPRA needs to work more closely with professions to identify appropriate expert opinions or conduct performance assessments. Associate Professor Vinay Lakra, RANZCP, explained that:
More often than not, we became aware through our members that the expert identified in dealing with some of these issues does not understand the nuances of those particular practices that particular specialty is dealing with or that practitioner deals with…
3.84
In their submission, RACS suggested clinical input in relation to a notification should require the person to be in the same field of speciality as the person subject to the complaint:
If the person giving clinical input is not an expert as described then there is a real risk that any clinical opinion they provide may be incorrect or out of date.
3.85
The NHPO suggested that AHPRA and the national boards need to consider further when and how independent clinical advice is used, as this step in the process can contribute to protracted timeframes.
Transparency and communication
Lack of transparency
3.86
Concerns were raised about a lack of transparency in the notifications process. The committee heard that this has also been a key issue in complaints to the NHPO.
3.87
For example, the Australian Psychological Society suggested the decision framework explaining how AHPRA deals with matters and the timeframes that can be expected is not clear and transparent. Other inquiry participants noted there needs to be greater transparency in the likely outcomes of a notifications process and avenues for appeals.
3.88
The RACGP said this was particularly important for overseas-trained doctors who are not as familiar with the Australian health system.
Inadequate communication
3.89
The committee heard that AHPRA’s communication with notifiers and health practitioners during the notifications process is inadequate. Issues included difficulty contacting AHPRA, inconsistent information, and delays in communication throughout the process.
3.90
Complaints to the NHPO suggest there are systemic problems with AHPRA’s communication, with complainants commonly raising the following issues:
frustration with unanswered phone calls and written correspondence; and
not receiving updates about a matter, particularly if it is delayed.
3.91
There are currently no published service standards in relation to communication during the notification process. However, under the National Law, a written update is required at not less than three monthly intervals.
Notifiers experience
3.92
The NHPO told the committee that, despite efforts to clearly communicate the parameters of the national scheme, there is an ongoing tension regarding notifiers and their understanding and expectations of the notifications process.
3.93
AHPRA acknowledged that notifiers experience with the notifications process can be unsatisfying because, as discussed earlier in this chapter, AHPRA is not able to provide the kinds of remedy that they might be seeking. The committee heard that more can be done to clarify the purpose to the notifications process so that the right matters are raised with AHPRA in the first place.
3.94
In addition, the NHPO told the committee that AHPRA does not always provide the notifier with enough information about why they decided to take no further action on a matter.
Areas for improvement
3.95
AHPRA acknowledged that it is not currently meeting its statutory requirements for written updates and advised the committee that it is looking at ways to improve compliance including through automated written updates.
3.96
The committee’s 2017 inquiry recommended AHPRA review and amend how it engages with notifiers to ensure that they are aware of their rights and responsibilities and informed about the progress and status of the notification. It also recommended that AHPRA institute a practice of providing monthly updates to complainants and medical professionals who are the subject of complaints.
3.97
The committee heard that there is still scope for AHPRA to improve how it communicates with notifiers about the notification process and how their matter was handled. According to the NHPO:
Often, the NHPO has found that when it becomes clear to complainants that their matter has been through a fair process, they are likely to accept the outcome they receive, even if it is not the outcome they were hoping for.
3.98
The NHPO suggested setting a more comprehensive service standard to address concerns about communication and transparency in the notifications process:
From an organisational perspective, it would assist Ahpra to induct staff and ensure staff have a clear understanding of their role in communication. From a complainant perspective, these standards also operate to set expectations about what level of communication they can look forward to, and therefore reduce unnecessary stress or anxiety associated with uncertainty.
Procedural fairness
3.99
A lack of natural justice and procedural fairness in the notifications process was raised by a number of participants in the inquiry.
Insufficient information
3.100
It was suggested that AHPRA do not always provide sufficient details in order for health practitioners to represent themselves fairly to AHPRA or the national boards. As discussed further in the next chapter, this was particularly a concern in relation to anonymous notifications.
3.101
The committee also heard that there is inadequate and sometimes inconsistent information being communicated to health practitioners to enable them to respond to notifications.
Presumption of guilt
3.102
Many health practitioners reported feeling a presumption of guilt in the way they are notified of a complaint. One submitter referred to it as a ‘guilty until proven innocent approach’.
3.103
The Australian College of Midwives submitted that midwives who are subject to an investigation believe their efforts to demonstrate sound practice and processes are in vain:
They discuss feelings of already having been found guilty before they have had the opportunity to share their story or version of events.
Insufficient opportunity to respond
3.104
In addition, a number of inquiry participants said health practitioners have insufficient time to provide responses. The Australian and New Zealand Association of Oral and Maxillofacial Surgeons commented that:
… practitioners are given very short timeframes to provide [counter] evidence, but then wait long periods of time to know what is happening within AHPRA.
3.105
According to the RANZCP, the time practitioners are given to respond to a concern ‘may not allow enough time for practitioners to get legal advice and to consider all the options’.
3.106
The committee heard that when immediate action is taken, the national boards need to consider the sometimes severe impacts on health consumers—including suicide—if practitioners are not even given time to make alternative arrangements for their patients.
3.107
The Australian Association of Psychologists incorporated said another concern was that the process is entirely in writing and by email, which makes it difficult and time-consuming.
3.108
The AHPRA Community Reference Group argued that notifiers also need further opportunities to be heard through the notifications process.
Independent expert opinion
3.109
The NHPO noted that it has provided feedback to AHPRA on the need for practitioners to be formally invited to provide a response to an independent opinion report.
3.110
Where a notification uses an independent expert, it was suggested that the health practitioner should be given a copy of their evidence, and the opportunity to respond. It was also noted that there needs to be sufficient time to seek independent expert opinions in response.
Regulatory approach
3.111
AHPRA told the committee that, through its processes, health practitioners are made fully aware of the nature of the concerns raised against them (either by giving a copy of the notification or a summary) and the information that informs a board’s decision.
3.112
In its regulatory guidance, AHPRA acknowledges that what is required for procedural fairness depends on the case and what regulatory action is being proposed:
… what is required in order to ensure procedural fairness is context-dependent. It is possible for procedural fairness requirements to differ between decisions of the same kind, having regard to the circumstances of a particular case.
3.113
The NHPO noted that there are opportunities for health practitioners to give verbal evidence to a board, particularly if serious regulatory action is being considered. It was also noted that health practitioners with concerns about procedural fairness can seek a formal review of the decision, and also make a complaint to the NHPO about the process—which could recommend the board reconsider its process or decision-making.
3.114
As a part of the Tranche 2 reforms, the National Law is to be amended to enable the boards to broaden the scope of their investigations where additional matters requiring investigation are identified. Where this occurs, certain procedural fairness requirements would be required.
Bias and conflicts of interest
3.115
Inquiry participants, including a number of confidential submitters, raised concerns about conflicts of interest affecting the notifications process.
3.116
Concerns about bias were also raised, mostly in the context of board memberships, and the suggestion that, in some professions, membership was not representative, and this has resulted in biased notification outcomes.
3.117
For example, the Australian Association of Psychologist incorporated submitted that the national and state boards do not reflect the diversity of the profession, which leads to bias regarding what is ‘reasonable’ in practice when doing an investigation.
3.118
In the previous inquiry, the committee recommended that AHPRA immediately strengthen its policy for members of boards. It also recommended the Chair of the board make active inquiries of other decision makers about actual or potential conflicts of interest prior to the consideration of any notification.
3.119
AHPRA told the committee that since the last inquiry it has reviewed and updated its policies. AHPRA noted a range of measures exist to manage conflicts of interest that may arise in assessing a notification about a practitioner including:
conducting checks before engaging clinical experts to identify reasons that may preclude the provision of impartial advice;
engaging additional independent and expert opinion to supplement the advice of AHPRA’s clinical advisors, where early clinical advice indicates an issue of clinical performance; and
internal procedures for managing actual or perceived conflicts of interest for AHPRA staff and board members, or delegated committee members with the power to make decisions.
3.120
The committee heard some support for the policies and approach that AHPRA has taken. For example, MIGA suggested that increased employment of health practitioners as clinical advisors has mitigated some of the risks of conflicts of interest.
3.121
The NHPO noted that AHPRA has also recently addressed a gap in its conflict of interest policy and practices in relation to independent practitioner’s opinions commissioned by third parties (not AHPRA).
Outcomes
No further action
3.122
As discussed above, the high proportion of notifications that end with ‘no further action’ (over 70 per cent) was cause for concern for some inquiry participants.
3.123
The Medical Board of Australia acknowledged that within the 70 per cent of notifications that are closed with no action, there are a proportion that are low level concerns raising no risk at all to the public.
3.124
AHPRA commented that although most notifications do not result in the need for regulatory action, it does not mean they lacked merit, and that they may raise valid concerns about the care a person has received:
Around 50% of the notifications we receive are made by a patient, their families and friends or other members of the public. We rely on patients and the public to raise their concerns with relevant agencies. It is important that we have access to those concerns to inform risk assessments and future policy settings.
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Dr Anne Tonkin, Chair of the Medical Board of Australia, noted that many low risk notifications are closed with no further action because the practitioner proactively takes steps to reduce to the risk to the public and there is no need to take regulatory action. Dr Tonkin told the committee:
So it's not that nothing's happened; something has happened, but it hasn't had to be through regulatory action… [this is] a beneficial outcome for the public because the risk is lower going forward, and it is a beneficial outcome for the practitioner because they are at much lower risk of having another notification about that particular issue.
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AHPRA noted that amendments to the National Law in 2017 enables the national boards to make a decision that no further action is needed if the matter a health practitioner subject to a notification has taken appropriate steps to remedy the issues identified and the board is reasonably satisfied no further action is required.
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The AHPRA Community Reference Group suggested that more needs to be done to educate the public, and health practitioners, about the outcomes of notifications and the purpose and structure of the national scheme. It noted:
… there appears to be a tendency for practitioners to take that to mean that most of the complaints made against them are vexatious. On the other hand, health consumers can interpret that result as meaning that boards are letting too many practitioners “off-the-hook.” Greater understanding of the structure and purpose of the national scheme and actions taken under it would assist in reducing both perceptions.
Conditions
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Under the National Law, conditions can be placed on a health practitioner’s registration as a result of the notifications process.
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Where conditions are placed on practitioners with immediate effect, witnesses told the committee that this can have unintended negative consequences for patient outcomes and continuity of care in rural and regional areas.
3.130
As noted in Chapter 2, the Australian Nursing and Midwifery Federation reported an increasing number of education conditions that members find challenging, if not impossible, to comply with. In their submission they noted:
A commonly required condition is that a member completes a refresher or re-entry program, even though there are very few programs available in Australia for nursing or midwifery refresher or re-entry.
Supervision
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A common type of condition that might be imposed on a health practitioner is that they be subject to a period of supervised practice.
3.132
As discussed in Chapter 2, the committee heard that the supervised practice requirements pose specific challenges in some professions. Several submitters noted that it is hard to find supervisors that are appropriately qualified, and that this can result in a practitioner not being able to practice. Furthermore, that the timeframes to find a practitioner are also unrealistic and that supervision can be costly.
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In addition to the above concerns, several submissions commented on the time that it takes for nominated supervisors to be approved by AHPRA. According to one submitter:
… in many circumstances, practitioners cannot practise until they have an approved supervisor … In our experience it can often take months for a supervisor to be approved.
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Commenting on the time it takes for nominated supervisors to be approved, and communication with AHPRA, Optometry Australia submitted that:
... the time between submitting an initial supervised practice application and receiving the Board’s verdict can be lengthy, in some cases extending over months. Whilst the practitioner is undertaking supervised practice, interim communication with the Board can also be delayed by many weeks. This inefficiency can be stressful for practitioners and impacts the practitioner’s future employment relationships and career.
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Optometry Australia told the committee that although there have been efforts to clarify the process for supervisors, it remains ‘complex, confusing and inefficient’ and that although guidance materials are provided ‘they often leave practitioners unclear on what supervision will be required’.
3.136
The committee heard through confidential submissions and in camera evidence of particular instances where AHPRA has delayed approving a nominating supervisor, and not communicated clearly the supervisor’s responsibilities. The committee was told that the process engaged by AHPRA lacked natural justice and demonstrated failures within AHPRA’s internal communications, which resulted in the supervisor themselves being pursued by AHPRA for failing to provide adequate supervision.
Regulatory approach
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AHPRA advised that as at 30 June 2021, it was monitoring 4650 cases relating to a registered health practitioner, of which, there were 1691 cases requiring supervision.
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AHPRA told the committee that there are rigorous ‘show cause’ requirements around conditions. In addition, that there are appeal and complaint mechanisms available to practitioners. This includes the ability to make a complaint to AHPRA, or the NHPO, and to seek a review of a condition, if they believe there has been a material change in circumstances.
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Evidence from AHPRA also outlined the strong focus on public protection in the national scheme, underpinning all regulatory action, including conditions. In their submission AHPRA notes several policy directions issued by Health Ministers which reinforce that AHPRA and the national boards are to prioritise public protection in regulatory decision-making. Dr Anne Tonkin, Chair of the Medical Board of Australia added:
… from our perspective, with the paramountcy of public protection, if we don't feel that somebody is safe to practice independently, there is really no alternative, from our perspective, other than to put supervision in place while the person increases their expertise and improves their skills to the point where they can safely practice independently.
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The NHPO commented that AHPRA and the national boards’ need to be able to impose conditions for public safety but they must be justifiable:
… as an overarching principle, I think it is open to the boards to set standards that practitioners need to meet to ensure safe practice. As long as they are able to articulate what those requirements are and why they are in place, I think that is reasonable.
3.141
On 9 November 2021, AHPRA announced that a Supervised practice framework had been developed and that 12 national boards had approved and published the framework which took effect from 1 February 2022. The core components of the framework includes that the levels of the supervised practice requirements are proportionate to the risk and that the roles responsibilities of the supervisee, supervisor and employers are clearly explained. The framework contains information for supervisees, supervisors and employers.
Appeals
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Submissions argued the current avenues for appeal are inadequate, difficult, expensive and time-consuming.
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Only health practitioners who have been the subject of a decision by a national board can appeal that decision, and there are limits on the types of decisions that can be appealed.
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Appealable decisions include those by a national board to suspend a practitioner’s registration, or impose or change a condition on a practitioner’s registration.
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AHPRA submitted that beyond the appeal rights set out in the National Law, practitioners can seek an informal review of a decision from the relevant board. According to AHPRA:
While there is no legislative imperative in doing so, a Board (or its delegate) will consider such an application to ensure that the decision is operating as intended and is not causing unnecessary prejudice to the practitioner.
3.146
Complaints about how AHPRA and the national boards have handled a notification or registration matter can be made to the NHPO. However, the NHPO asks respondents to make a formal complaint to AHPRA’s complaints team before contacting the NHPO if possible.
3.147
The committee heard concerns about a lack of visibility and awareness of the NHPO’s complaint handling role, as well as the requirement to first take the complaint to AHPRA.
Broadening appeal rights
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The committee’s previous inquiry made several recommendations to broaden appeal rights in the National Law, including making a caution an appellable decision. The committee heard that the decision not to progress this reform should be reconsidered ‘given the potentially serious impact of a caution on the practice, health and well-being of practitioners’.
3.149
The need for improved review rights for notifiers was raised. This issue was also addressed in the committee’s previous inquiry. Maurice Blackburn lawyers submitted that notifiers should be able to seek a merits review in certain cases to ‘alleviate some of the power imbalance that exists between notifiers and health practitioners’.
Systemic issues
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It was suggested that there needs to be improved responses to systemic factors underpinning the significant numbers of notifications. According to one witness:
… the model of professional regulation we have under our national law focuses on the individual and what they should have done. It misses the chance to look holistically at improving patient care and workplace culture. Blaming an individual is neither fair nor helpful to them. To ensure patient safety, professional wellbeing and good healthcare culture, we say there needs to be a better approach.
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For example, Avant Mutual told the committee that high numbers of notifications about international medical graduates suggest systemic issues with supervision, and a lack of understanding of the Australian system, which could be addressed through support and training.
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The committee heard that AHPRA needs to work more closely with professional associations to identify and address systemic issues.
Committee view
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At the outset, the committee acknowledges the ongoing maturation of the notifications function and the evolution of AHPRA’s policies and processes since the committee’s last inquiry. It is heartening that some of the key areas of concern—around timeliness, clinical input, and managing conflicts of interest for example—have been a key focus for AHPRA since the committee’s last inquiry.
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The committee acknowledges the growing volume of notifications made each year, and the pressure this places on AHPRA, the national boards and co‑regulatory bodies. Although increasing notifications indicates a growing awareness and accessibility of notifications processes, the committee is concerned about the number of notifications received by AHPRA and the co‑regulatory bodies which fall outside their remit, and which are more appropriately dealt with by other complaint bodies.
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The committee recognises that the regulatory framework for health complaints is inherently complex, and this poses challenges for the regulators trying to explain to the community where to take their concerns. However, there is a clear need to do more to support people to understand and navigate the different complaints and notification pathways and potential outcomes.
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More also needs to be done to ensure that supervisors are provided with adequate information and that they are appropriately supported to fulfil their role. Evidence to the committee suggests that this has not been the lived experience of a number of supervisors. The committee is concerned that action by AHPRA against supervisors could suggest an absence of natural justice; failures of internal communication; and a lack of engagement with the professional community.
3.157
While the recently released Supervised Practice Framework provides an important resource for supervisees, supervisors and employees, the committee is of the view that AHPRA needs to take a proactive role in ensuring that supervisors clearly understand their role, responsibilities, and obligations.
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Specifically, the committee considers that all supervisors should have a direct contact within AHPRA to discuss any concerns, or raise any questions, they may have. Importantly, this point of contact should be made available prior to the supervisor signing any contract, as well as continuously throughout the supervisory period. The committee is of the strong view that it is inappropriate for AHPRA to have no contact with a supervisor after a contract is signed.
3.159
The committee recommends that AHPRA undertakes urgent and immediate action in relation to supervisory failures and ensure that individual cases are not indicative of a systemic failure.
3.160
The committee recommends that all supervisors should have a direct point of contact within AHPRA and that this point of contact should be made available prior to any contractual arrangements being made, as well as throughout the entire supervisory period.
3.161
The available information on notifications and complaints should be clear, simple, and consistently described by regulators and health complaints entities. There is also opportunity for greater collaboration between regulators and complaints entities in efforts to educate the community and engage with consumers at health practices and services, where the concerns arise in the first place.
3.162
From the evidence provided to the committee, it is clear that health practices and services have a much greater role to play in dealing with the concerns in many low risk notifications in the first instance. More needs to be done to identify and redirect appropriate matters to health practices and services for handling, before they reach AHPRA. The committee considers that health practices and services and peak bodies should play a central role in this task.
3.163
The committee notes that proposed legislative reforms will give the national boards the power to refer the subject matter of a notification to ‘another entity’ at the preliminary assessment stage rather than at the end of an investigation. While this is an opportunity to improve early referrals of notifications more broadly, it should be used by AHPRA and the national boards to refer appropriate matters to health practices and services to respond to in the first instance.
3.164
The committee recommends AHPRA reviews and simplifies its published information about notifications and other complaint pathways.
3.165
The committee recommends that AHPRA and the national boards undertake education and awareness activities, explaining notifications and other complaints pathways, with health practices and services.
3.166
In addition to simplifying complaint pathways, the committee is of the view that health practices and services should have a much greater role to play in dealing with the concerns in many low risk notifications in the first instance. In respect of notifications concerning professional disputes that do not relate to the safety of a specific patient, the committee is of the view that such notifications be referred to the relevant professional body in the first instance.
3.167
The committee recommends that the Ministerial Council considers reforms to the National Law to enable health practices and services to be referred low risk notifications to be dealt with in the first instance, and that AHPRA and the national boards have discretion to refuse these matters on that ground.
3.168
The committee recommends that notifications accepted by AHPRA be limited to clinical issues relating to patient safety.
3.169
The committee would like to acknowledge the significant progress that has been made by AHPRA and the national boards to improve the handling of low and medium risk notifications. The committee is pleased to see an improvement in some of the notifications timeframes, and hear positive feedback on the risk-based reforms from inquiry participants and the National Health Practitioner Ombudsman.
3.170
However, the committee is concerned that some notifications are still subject to unacceptably long timeframes, and as discussed further in the next chapter, this continues to cause significant distress to those going through the notifications process. The reasons for these protracted timeframes needs to be better understood before it can be properly addressed through targeted measures, which could include further delegation of decision-making to AHPRA by the national boards.
3.171
The committee recommends that AHPRA and the national boards consider improving the notifications data it collects and publishes to better understand where protracted timeframes are experienced and the reasons for any delays.
3.172
Although recognising that preliminary assessments must be finalised within 60 days, the committee considers that, where a national board decides to investigate a health practitioner, it should set maximum timeframes, for example three months, for the conclusion of its investigations. The timeframes should only take into account the periods of time which AHPRA is in control of, and not the time when AHPRA is waiting for information to be provided.
3.173
The committee recognises that a flexible approach is necessary due to the complexities involved in compiling evidence, commonly from multiple parties, during an investigation. Notwithstanding this, the committee considers that it should be incumbent upon the investigator to proactively follow-up any non‑compliance with requests for information where the elapsed time exceeds 12 months from the date of the notification.
3.174
The committee recommends that AHPRA and the national boards undertake an analysis of the cause of protracted notifications timeframes and identify ways to further improve timeliness. Consideration should be given to:
what further decision-making powers of the national boards can be delegated to AHPRA;
the allocation of resources to deal with increasing volumes of notifications; and
establishing timeframes for aspects of the notifications process.
3.175
The committee considers that a failure to meet the statutory timeframes around written updates, and ongoing poor feedback about AHPRA’s communication with parties, including from the National Health Practitioner Ombudsman (NHPO), is unacceptable. The NHPO’s suggestion for a service standard should be progressed as a priority, outlining when and how updates will be provided to parties during the notifications process.
3.176
Finally, the committee notes that the reforms implemented by AHPRA suggest there is greater scope for practitioners to address the issues raised in notifications themselves without regulatory action. The committee maintains, however, that further effort is needed to use the information from notifications to prevent patient safety issues arising in the first place.
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The committee recommends that AHPRA and the national boards develop and publish a strategy for identifying systemic issues and working with stakeholders to proactively address areas of concern.