Genesis and focus of the inquiry
Between 2 February and 30 November 2016 the Senate Community Affairs
References Committee (the committee) conducted an inquiry into the Medical
complaints process in Australia (the previous inquiry).
That inquiry focussed on bullying in the health professions.
During the previous inquiry the committee received personal accounts from
medical practitioners and complainants that raised systemic issues about the
There was a perception among health practitioners that the complaints
process permitted vexatious complaints and that there were deficiencies in the
way investigations were handled.
Some patients and their family members were also dissatisfied with their
experiences of the complaints process.
Those accounts prompted the committee to recommend that a new inquiry be
established to examine the complaints mechanism as it applied under the Health
Practitioner Regulation National Law with the following terms of reference:
the implementation of the current complaints system under the
National Law, including the role of the Australian Health Practitioner
Regulation Agency (AHPRA) and the national boards;
whether the existing regulatory framework, established by the
National Law, contains adequate provision for addressing medical complaints;
the roles of AHPRA, the national boards and professional
organisations, such as the various colleges, in addressing concerns within the
medical profession with the complaints process;
the adequacy of the relationships between those bodies
responsible for handling complaints;
whether amendments to the National Law, in relation to the
complaints handling process, are required; and
other improvements that could assist in a fairer, quicker and
more effective medical complaints process.
Overview of the scheme
In 2006 the Productivity Commission recommended that health
professionals ought to be registered against uniform national standards to improve
The Council of Australian Governments (COAG) announced in March 2008
that the Intergovernmental Agreement for a National Registration and
Accreditation Scheme for the Health Professions had been signed. The new scheme commenced
operation on 1 July 2010 in all states and territories except Western Australia.
The Australian Parliament does not have constitutional competence to
regulate health practitioners. Therefore, the scheme was implemented by a suite
of uniform state legislation that was initially introduced in Queensland as the
Health Practitioner Regulation National Law Act 2009 (Qld). The Health
Practitioner Regulation National Law (the National Law) is schedule 1 to the
The National Law transferred responsibilities for registration,
accreditation and matters that relate to the health, performance or conduct of
a practitioner from 80 state and territory boards to ten national boards—one
that regulated each of the registered professions.
The scheme now regulates 14 professions:
Aboriginal and Torres Strait Islander health practice;
medical radiation practice;
nursing and midwifery;
The national boards are responsible for regulating the registered
professions and setting the standards practitioners must meet.
The national boards are supported by the Australian Health Practitioner
Regulation Agency (AHPRA). AHPRA provides secretariat services, publishes
registers of health practitioners, manages registrations, manages
investigations, liaises with the health complaints entities and provides advice
to the Australian Health Workforce Ministerial Council about the scheme.
The national boards and AHPRA's mandate is to protect the public from
practitioners whose conduct falls below the standards set by the national boards.
2017 amendments to the National Law
During the committee's inquiry the Australian Health Ministers' Advisory
Council (AHMAC) commenced consultation on the first of two tranches of
legislation to amend the National Law.
A representative of AHMAC, Ms Amity Durham, informed the committee at its
public hearing on 17 March that the first tranche of legislation is scheduled to
be introduced into the Queensland Parliament in May 2017 with passage expected
by August 2017.
A comprehensive summary of the proposed amendments is included in
AHMAC's submission to the inquiry.
For this inquiry, it will suffice to say that the draft Bill will:
add paramedicine as a registered profession;
allow community members to be appointed as Chairpersons of
permit notifiers to be given greater information about the work
of the board;
require national boards to set a period to review conditions
imposed by the board;
provide stronger practice prohibition powers for tribunals;
allow the national boards to request practice information from
add additional grounds on which the national board may decide to
take no further action.
New South Wales and Queensland do not participate in the part of the
National Law that relates to complaints.
The Office of the Health Ombudsman (OHO) in Queensland and the relevant
professional council in New South Wales manage health care complaints in their
These states are known as co-regulatory jurisdictions under the National
Complaints received by AHPRA about practitioners in co-regulatory
jurisdictions are referred to the relevant body (either the OHO or the relevant
Under Queensland legislation, the Health Ombudsman can then refer matters back
to AHPRA and the relevant national board unless the matter is 'serious'.
Overview of the complaints process
Any one may make a complaint about a registered health practitioner.
1.18 Complaints about registered health practitioners—known as notifications
under the National Law—can be made to AHPRA or to the health ombudsman in the
relevant state or territory. These health ombudsmen are referred to in the
National Law as health complaints entities.
Complaints received by AHPRA are assessed to ensure that they relate to
a registered practitioner.
Notifications are then referred to the national board.
The relevant national board and health complaints entity must work
together to determine how any notification/complaint about a registered health
practitioner will be managed.
If there is a disagreement between them, the most serious action proposed must
The complaints process is not linear. As can be seen in Diagram 1.1, the
options available to the national board should be conceived of as actions that the
board may decide to use at any stage in the process.
The possible actions are:
take no further action;
take 'immediate action';
request a health or performance assessment;
take action by:
issuing a caution;
accepting an undertaking;
appoint a panel;
refer to a tribunal;
refer to another entity.
Diagram 1.1—The complaints
process administered by AHPRA
Diagram taken from AHPRA and MBA,
Submission 119, p. 5.
Most final decisions are capable of being appealed to the responsible
tribunal in the relevant state or territory.
Since AHPRA's establishment in 2009, a variety of entities have
conducted reviews into aspects of AHPRA's administration. The reviews have been
met with varying degrees of responsiveness.
The Senate Standing Legislation Committee on Community Affairs has
considered legislation relating to the National Law on two occasions and the
Senate Standing References Committee on Finance and Public Administration
examined AHPRA's administration of the National Law in 2011.
Most relevantly, in each inquiry submitters raised concerns about the
mandatory notification process and the chilling effect it may have on
practitioners seeking assistance to manage their own health. In response, the Senate
Finance and Public Administration Committee recommended that the effect of
mandatory notifications be reviewed.
AHMAC also commissioned an independent review of the scheme by Mr Kim
Snowball, an experienced former public servant. The Snowball Review made
33 recommendations to improve the National Registration and Accreditation Scheme
for the Health Professions.
Four recommendations are relevant to this inquiry: recommendations 9, 10, 28
Recommendation 9 outlined measures that AHPRA should implement to
improve the complaints handling system, such as:
interviewing complainants to ascertain their expectations;
establishing benchmark timeframes for the completion of key
aspects of the process;
conveying the rationale for deliberations and progress reports to
reviewing correspondence standards to ensure improved sensitivity
and clarity in communication.
Recommendation 10 recommended the national adoption of the Western
Australian approach to mandatory notifications.
The Western Australian approach provides an exception from mandatory reporting
if the practitioner is providing treatment to the practitioner they would
otherwise have to report.
Recommendations 28 and 29 recommended better training for AHPRA investigators
and stronger practice prohibition powers for tribunals, respectively.
The previous inquiries recommended that decisive actions be taken to
improve the existing complaints system. To date, only the following actions
have been taken in relation to the previous inquiries.
The Australian Government noted the Finance and Public Administration
Committee's recommendation to seek the support of the ministerial council to
review the mandatory notification requirement.
The Australian Health Workforce Ministerial Council released the
Snowball Review and its response in August 2015.
The council accepted recommendations 9 and 28, accepted recommendation 29
in principle pending further advice and did not accept recommendation 10.
The 2017 amendments to the National Law will permit notifiers to be
provided with information about the rationale behind board decisions in
accordance with recommendation 9(d) and provide for stronger practice
prohibition powers for tribunals.
In response to questions on notice to the previous inquiry, AHPRA
informed the committee that it had made progress on the Snowball Review
revising its three-day investigator training program;
convening a working group with the health complaints entities to
identify areas of change, as recommended by the Snowball Review;
commencing work to implement all parts of recommendation 9 that
are controlled by AHPRA.
Conduct of the inquiry
The Senate referred the complaints mechanism under the Health
Practitioner Regulation National Law to the Community Affairs References
Committee on 1 December 2016, with a reporting date of 10 May 2017.
Handling of submissions
The inquiry was advertised on the committee's website and the committee
wrote to stakeholders and participants in the previous inquiry.
On 1 February 2017, the committee clarified the phrase 'medical
complaints' in the committee's terms of reference. A statement posted on the
inquiry website advised:
The committee intends to adopt a broad interpretation of the
phrase 'medical complaints' in terms of reference b., c. and f. to include all
registered health practitioners. The committee welcomes all submissions that
specifically address the complaints mechanism under the National Law.
The committee invited submissions to be lodged by Friday 24 February
The committee received 139 submissions from individuals and
organisations. A list of submissions is available at Appendix 1.
To assist the committee to understand the existing process, representatives
of AHPRA and Ms Karen Toohey, Australian Capital Territory Health Services
Commissioner, provided the committee with a private briefing on 16 February
The committee held two public hearings in Canberra on 17 March 2017
and 31 March 2017. Transcripts of those hearings are available on the
committee's website and a list of witnesses is available at Appendix 2.
Note on references
In this report, references to Committee Hansard are to proof
transcripts. Page numbers may vary between proof and official transcripts.
Structure of this report
Following this introductory chapter, this report consists of four
further chapters. The next chapter considers the lodgement and assessment of
complaints. The third chapter examines the way AHPRA investigates complaints and
the way decisions are made by the national boards. The fourth chapter considers
AHPRA's administration of the complaints mechanism and the final chapter
contains the committee's conclusions and recommendations.
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