AHPRA's administration of the complaints mechanism
This chapter examines the Australian Health Practitioner Regulation
Agency's (AHPRA) role in administering the complaints mechanism. The main
concerns that have been raised with the committee are:
the knowledge and administration of national board guidelines and
timeliness of the process;
issues around information sharing; and
National board guidelines and policies
Submitters have raised concerns that AHPRA's staff is not aware of key
guidelines and policies that relate to notifications and the assessment process,
including guidelines issued by specific national boards.
Single Expert Witnesses
One important example that was brought to the committee's attention
relates to expert psychologists and psychiatrists that practice in family law
In family law proceedings, it is often necessary to have an independent
expert psychologist or psychiatrist, who is employed by the court, to assess individuals
or families and report back to the court.
However, the committee received evidence that some family law litigants have
attempted to use the National Law process to discredit practitioners if their
report is unfavourable.
The Association of Family and Conciliation Courts (AFCC) has emphasised
that the court requirements of psychiatrists and psychologists contributing to
family law proceedings are incompatible with the complaints process under the National
Dr Jennifer Neoh, Secretary of the Australian chapter of the AFCC,
provided evidence to the committee on 17 March 2017 that family law
practitioners are subject to the 'strict legal parameters and guidelines' in
which they practice. Dr Neoh explained:
AHPRA has requested that family law practitioners present
confidential court documents for use in the complaints process; and
AHPRA has initiated investigations against family law
practitioners during, or prior to, a practitioners' engagement with a pertinent
As providing court documents that identify witnesses is contrary to the Family
Law Act 1975 (Cth), asking practitioners to provide documents in relation
to a complaint presents 'professional, legal and ethical' dilemmas to family law
The AFCC noted that AHPRA's requests for confidential court documents
are inconsistent with findings of the High Court of Australia which affirm that
court documents cannot be used outside of the legal proceedings for which the
document was produced without leave of the court.
Similarly, Mr Vincent Papaleo, Convenor of the Family Law Interest
Group, suggests that the involvement of regulatory bodies, such as AHPRA, in
investigating notifications related to family law proceedings can compromise
the involvement of psychologists in the proceedings.
To resolve this issue, in 2012 the Psychology Board of Australia
published a policy that provided 'AHPRA investigations would not be carried out
prior to the conclusion of the proceedings without leave of the court'.
However, the AFCC submitted that the policy is of 'little practical
utility' and that practitioners are still 'routinely' asked to supply court
In some cases, the practitioners have handed over documents to AHPRA because
they felt pressured to do so.
This is contested by AHPRA. Mr Matthew Hardy, National Director,
Notifications, told the committee that both AHPRA and the Psychology Board of
Australia understand that a complaint cannot be pursued against a practitioner
without leave of the court and that he was not aware of any case where AHPRA,
or the board, had done anything other than follow the policy.
Mr Hardy said that in cases where practitioners have handed over the
documents, the documents have been locked down to ensure there was no detriment
to the Family Court process.
On notice, AHPRA informed the committee that of the 15 single expert
witness complaints that the national board have decided to investigate:
in eight cases AHPRA was provided a copy of the report prepared
for the court;
in six cases the report was provided by the notifier;
two were returned to the notifier without a copy being retained
four reports are retained on AHPRA's database with restrictions on
in two cases the Family Court granted leave for the board to use
Chiropractor advertising guidelines
Chiropractors that submitted to the inquiry were very critical of
AHPRA's guidelines on advertising and its staff's knowledge of them.
The Chiropractors' Association of Australia (CAA) submission notes that
a high proportion of notifications made about chiropractors to the Chiropractic
Board of Australia are related to advertising concerns.
Confidential submitters to the inquiry expressed apprehension that:
actions of AHPRA were at times inconsistent with the National
the guidelines issues by the national boards were unclear; and
AHPRA employees were not cognisant of critical aspects of the
national board's guidelines.
The CAA suggests that AHPRA and the national boards have a more active
role to play in educating practitioners on advertising regulations under the
National Law, prior to an assessment being initiated.
The committee is concerned by reports that psychologists and
psychiatrists that practice as single expert witnesses in courts are being
asked to provide court documents for the purposes of the complaints process.
However, the committee acknowledges that the National Law imposes
obligations on AHPRA and the committee supports all efforts to ensure that
Family Court proceedings are not jeopardised by the complaints mechanism. Having
said that, there may be a need to review relevant aspects of the National Law
to clarify this matter.
While the committee recognises that AHPRA employees cannot be expected
to be expert in all aspects of the National Law and AHPRA's guidelines,
evidence provided to the committee suggests that deficiencies in corporate
knowledge or training may exist.
Since AHPRA commenced operation in 2009, the timeliness of the
complaints process has regularly been commented on in reviews of AHPRA's work.
The case of Dr Gary Fettke demonstrates the significant timelines that
can occur within the complaints process. Dr Fettke provided evidence at the
committee's 1 November 2016 hearing. Details about AHPRA's handling of Dr Fettke's
case came to light during the committee's investigation into whether AHPRA had
breached parliamentary privilege following Dr Fettke's appearance before the
Dialogue Box 4.1 explains AHPRA's handling of Dr Fettke's case.
In Dr Fettke's case, the process—from notification to
finalisation—took two years and five months to complete. In confidential
submissions, others have also detailed processes taking up to four years.
Dr Fettke was investigated for almost two years before the investigation
report was submitted to the board. Once the board proposed cautioning
Dr Fettke, the notice of proposed decision was not provided to
Dr Fettke for another four weeks.
The practitioner was afforded eight weeks to prepare to provide oral
submissions to the board. The board then decided to caution the practitioner.
Under section 180 of the National Law the practitioner must be provided
with notice of a decision 'as soon as practicable' after the decision has been
made. Dr Fettke was provided with the notice more than three weeks later.
The committee received evidence of similar administrative practices,
which suggests that Dr Fettke's experience was not an isolated occurrence.
Mr Ian and Mrs Rhonda McNees read to the committee a list of findings by
the Victorian Government Solicitor's Office. Those findings included that in
AHPRA failed to investigate and assess Notifications,
or to forward the Board decisions in a timely manner, and in some instances
closed matters without providing any communication.
In cases where a national board has decided to refer a matter to the relevant
tribunal, Avant submitted that 12–15 months have elapsed in some cases between
the board making the decision and the initiating documents being filed with the
Associations representing medical practitioners also noted that the timeframes
in which AHPRA completed investigations were often protracted.
These reports stand in contrast to the timeframes reported by AHPRA.
As noted in chapter 2, AHPRA reported that in the 2015–2016 financial
64% of notifications about doctors were closed following
assessment. When no regulatory action was taken, the median time to complete a
matter was around two months. If regulatory action was taken, the median time
was around three and half months...
Where a matter required investigation or a health or performance
assessment during the 2015–2016 financial year, AHPRA submitted:
If no regulatory action was taken the median time to complete
a matter was just over nine months. If regulatory action was taken, the median
time was just over ten months...
In evidence to the committee on 31 March 2017, Mr Martin Fletcher,
Chief Executive Officer, AHPRA, reiterated:
We are doing a lot to of work to shorten our time frames.
This includes: work with the health complaints entities...to make sure a
complaint goes to the right place quickly; boosting resources in pressure
points in our system; establishing an online complaints portal to give us
better information up-front and take action more quickly; trialling innovative
ways of working...and inviting practitioners and complainants to provide feedback
on their experience of the complaints process via survey.
Dialogue Box 4.1 — Case study: Dr Gary Fettke
Dr Gary Fettke is an orthopaedic surgeon in Tasmania. A
notification was made to the Tasmanian Board of the Medical Board of
Australia (TBMBA) concerning Dr Fettke's provision of particular dietary
advice. The notifiers suggested that providing dietary advice was not within
Dr Fettke's scope of practice.
The notification was made to the TBMBA in 2014.
Section 149 of the National Law requires that the national
board must, within 60 days of receipt of the notification, conduct a
preliminary assessment of the notification.
In Dr Fettke's case:
The initial assessment determined that the notification
required investigation. The decision to investigate was taken 49 days
after the board received the notification.
The investigation report was considered by the TBMBA after 1
year, 11 months and 14 days. The TBMBA proposed to caution the
The notice of proposed decision was provided to Dr Fettke 27
days after the board had made its decision.
Dr Fettke made submissions to the board in accordance with
section 179 8 weeks later. Having heard Dr Fettke's submission, the
board made the decision to caution Dr Fettke in accordance with section
Under section 180 of the National Law the practitioner must
be provided with notice of a decision made under section 179(2) 'as soon as
practicable' after the decision has been made. In Dr Fettke's case:
The notice was provided 25 days later; and
AHPRA issued a media release 15 days after the notice was
Parity of timeframes
Another aspect of timeliness that was raised by practitioners was the
inequitable parity between the lengths of time a matter was being managed by
AHPRA or the national board and the amount of time practitioners were given to
respond to requests made of them by the national board.
Medical Insurance Group Australia (MIGA) observed in their submission
that at each stage of the process AHPRA or the national board has significantly
longer to consider the matter than the practitioner does to respond.
for an initial complaint, the responsible body has at least 60
days to assess it, the practitioner is usually only afforded 7–21 days to
at investigation stage, the investigation can take one or two
years, the practitioner is usually only afforded 14–28 days to respond; and
if the matter progresses to the tribunal, the prosecutorial body
has often had a year or more to prepare for the hearing, while the practitioner
is usually only afforded 4–6 weeks to prepare for the hearing.
Some practitioners consider this inequity to be unfair to the
practitioners involved and places them at a disadvantage.
The committee considers that efforts to improve the timeliness of the
complaints mechanism must continue.
The committee acknowledges that AHPRA has tried to improve its
timeframes and it commends AHPRA for the steps it has already taken. The
committee also acknowledges that the cases shared with the committee may not be
indicative of average current timeframes. However, the evidence the committee
received indicates that significant work is required to expedite the timeframe
for practitioners and notifiers, particularly in circulating and administering
decisions once they have been taken by the board.
The committee acknowledges that a substantial lack of parity in
timeframes has the potential to put practitioners at a disadvantage in
preparing their responses to the board. The committee encourages the national
boards to set reasonable timeframes that balance the practitioner's right to be
heard against the need for expediency.
The committee emphasises that timeliness continues to be an issue,
despite AHPRA's ongoing efforts.
Some submitters expressed concerns about whether important information
collected by AHPRA in the course of investigations was communicated to other
A confidential submitter expressed serious concerns that allegations
regarding sexual boundary violations were not being shared with police. Other
submitters confidentially reported that, in their cases, they believe that
AHPRA failed to share relevant information with either a college or the police
in circumstances that they considered warranted further action.
These suggestions recognise that AHPRA often collects a considerable
quantity of data about the practitioners they investigate. Some submitters have
considered that the information AHPRA collects could be harnessed to improve
AHPRA is one of the only health agencies with a national remit. As
Dr Marie Bismark told the committee, this provides potential advantages to
Australia to assess the safety and quality of health care:
...one of the greatest advantages of the establishment of AHPRA
is that Australia now has a national system for collecting data both about
practitioners who are registered in Australia and also about concerns about the
health and conduct and performance of those practitioners. That really opens up
unprecedented opportunities to understand the types of concerns that are being
brought forward to regulators and to assess the way in which agencies respond
to those concerns.
The Australian Medical Association also suggested that practitioners have
the capacity to learn from data that led to no further action.
For example, even if no further regulatory action was required, a pattern of
notifications may reveal that a certain category of patients may require a
different communication strategy.
The committee recognises that data is a valuable resource. The committee
encourages AHPRA to explore ways that the data can be used to improve health
practice and share knowledge among practitioners, provided it respects the
privacy of the patient and the practitioner involved.
In its previous inquiry the committee suggested that further
consideration ought to be given to allowing an administrative review of
Some submitters to this inquiry again suggested that further amendments
ought to be made to the appeals process.
Avant suggested that practitioners should be able to review immediate
action decisions without the need to lodge an appeal in a relevant tribunal and
that cautions should be appealable.
Notifiers also pressed for a more equal appeals mechanism. Under the
current arrangements, a practitioner can appeal most decisions to the relevant tribunal,
but notifiers can only apply to the Health Practitioner Ombudsman and Privacy
Providing both parties with access to the tribunal would create greater
equality between the parties.
However, the tribunal, whilst it is a lower cost jurisdiction than the
Supreme Court, remains a costly exercise for many people.
The committee notes that appeals processes are an important mechanism
for review to ensure that the correct decision has been made. Whilst the
committee recognises that certainty and timeliness are important factors for
all parties, the committee sees considerable benefit in ensuring that parties
have the ability to seek review of decisions of the boards.
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