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Under the one umbrella

Cover Story

Cite as: December 2010 84(12) LIJ, p.32

A new national scheme is an important move towards uniform regulation, accreditation and registration of a broad range of health practitioners.

By Ian Freckelton SC

On 1 July 2010 a significant step was taken in national law reform: a consistent set of criteria for registration and regulation of health practitioners came into force throughout Australia.1

The past decade has seen the unsatisfactory situation, depending on the profession, of either three or four different phases of regulatory regime of the various categories of health practitioners within Victoria. A report by the Productivity Commission on the Australian Health Workforce in 2005 placed major structural reform of health practitioners on the national agenda2 and in March 2008 an intergovernmental agreement for a national registration and accreditation scheme for the health professions was signed by the Council of Australian Governments.3 The new national system implements this scheme and also aims to introduce stability, consistency and contemporaneity into registration, accreditation, regulatory criteria and procedures for health practitioners.

The aspiration is to protect the community more effectively and to optimise the quality of health service provision by practitioners.

For Victoria, the principal amending legislation is the Health Practitioner Regulation National Law (Victoria) Act 2009 (Vic) (the national law), which replaces the Health Professions Registration Act 2005 (Vic) (HPRA). The HPRA, which came into force on 1 July 2007,4 in turn replaced a suite of profession-specific pieces of regulatory legislation, including the Medical Practice Act 1994. The national law introduces a uniform scheme for Australia-wide registration of doctors, dental practitioners, nurses, psychologists, pharmacists, physiotherapists, chiropractors, osteopaths, podiatrists and optometrists. At its essence is the implementation of commonsense in this regard.

On 1 July 2012 Chinese medicine practitioners, medical radiation practitioners (both of which are already registered in Victoria), occupational therapists and Aboriginal and Torres Strait Islander health workers will join the scheme. No doubt in due course other professions will follow, when it is adjudged that they are cohesive enough in their ethical approaches to practice and there is a public interest in their becoming registered health professions. For the present, notable omissions from the regulatory scheme are naturopaths, social workers, speech therapists, psychotherapists and counsellors.

The architecture of the new regulation

The architecture of the new scheme distributes regulatory responsibilities to an array of entities.5 Among them are:

  • the Australian Health Workforce Ministerial Council (AHWMC) (s11), comprising ministers of the relevant portfolios throughout Australia, with responsibility to give directions to the Australian Health Practitioner Regulation Agency (AHPRA) or national boards (see below) about administrative processes, policies, procedures and accreditation procedures;
  • the Australian Health Workforce Advisory Council (AHWAC) (s19) with the responsibility to provide independent advice to the AHWMC about the national registration and accreditation scheme;
  • AHPRA6 (s25): the workhorse of the new scheme, providing administrative assistance and support to the national boards; establishing procedures for accreditation standards, registration standards and codes and guidelines approved by the national boards; along with national boards, keeping registers of practitioners; and receiving and dealing with notifications about practitioners;
  • national boards of the professions (s35) with responsibility to register suitably qualified and competent practitioners and students; decide the requirements for registration; develop standards, codes and guidelines for practitioners; oversee (but not undertake) receipt, assessment and investigation of notifications about practitioners; with AHPRA keep registers of practitioners; establish health, performance and professional standards panels; and refer serious matters about practitioners for determination to the Victorian Civil and Administrative Tribunal (VCAT) or (in other jurisdictions) its equivalent; and
  • state or territory boards/committees (s36) with responsibility to perform functions delegated to them by the national boards.

Imperfectly drafted transitional provisions (especially ss288 and 289) enable, for the most part, the transition from the previous system of regulation to the national law, with health practitioners being dealt with by the imposition of findings and determinations by reference to the legislation in force at the time of their having engaged in conduct the subject of allegation.7

The result of this distribution of functions is that there is a consolidation of the move toward what is often termed co-regulation,8 as against self-regulation, of the health professions. Professionals of the particular discipline still have a major role in “policing their own profession” but there is disaggregation of the investigative (AHPRA), policy (national boards), prosecutorial (national boards) and serious decision-making functions (in Victoria, VCAT). The HPRA commenced this process by taking the serious decision-making power in specific cases away from formal hearings conducted by the state boards and the national law has taken it a step further by giving the investigative role to AHPRA, which has branches throughout Australia.

Lay participation

Lay participation under the new scheme is modest. At least two members of national boards and also of state/territory boards/committees must be community members (s33, s36). However, the external role of investigation review panels (HPRA, Schedule 2), which enabled notifiers (complainants) dissatisfied with decisions not to investigate, or to classify a notification after an investigation as requiring no further action to refer it to VCAT, is abolished. At present VCAT constitutes itself with a lawyer member chairing a hearing, together with two health practitioner members of the relevant discipline. There is no lay member participation at VCAT, which had occurred with board formal hearings prior to the HPRA regime.

Registration

Aside from students who are now registered (s87), there are five categories of health practitioner registration: general (s52); specialist (s57); provisional (s62); limited (s65); and non-practising (s73).

If a national board or a state/territory board/committee (by delegation from the national board) concludes that a person has an impairment that would detrimentally affect their capacity to practise to such an extent that it would or may place the safety of the public at risk, it can decide the person is not suitable to be generally registered (s55(1)(a)). Similarly, if it concludes their competency in speaking or otherwise communicating in English is not sufficient for them to practise their profession, it can deny them registration. If it forms the opinion “for any other reason” that the person is “not a fit and proper person [not defined] for general registration in the profession, or that the person is unable to practise the profession competently and safely” (s55(1)(h)(i)-(ii)), it can also decline to register the practitioner. Boards have extensive powers to check applicants’ proof of identity (s78) and criminal history (s79) so as to avoid fraudulent applications.

Registration of health practitioners continues to be annual and does not as yet include validation requirements in the sense of ongoing provision of proof of competence and good health.9 However, there are moves in this direction, with practitioners being required (s109(1)(a)) to declare that they do not have an impairment; they have met recency of practice requirements; they have completed continuing professional development requirements; and they have not practised without appropriate professional indemnity insurance and will not do so. In addition, applicants for re-registration are required to report details of any change in their criminal history; details of any complaints made about them; (importantly) whether their right to practise at a hospital or other facility has been withdrawn during the previous year because of their conduct, professional performance or health; or if their Medicare privileges were withdrawn or limited (s109(1)(b)-(e)). These latter requirements are intended to broaden the net of information obtained by regulatory authorities to enable a wider range of issues which may endanger public safety to be investigated. Provision of false information is likely to be regarded as obtaining registration by fraud or misrepresentation and to result in serious disciplinary consequences (s196(1)(v)), although deregistration no longer necessarily follows.10

Restriction on use of titles

At the heart of the regulatory scheme is a preclusion on the taking or using of a title (e.g. medical practitioner, pharmacist, psychologist) in a way that could be reasonably expected to induce a belief that the person is a registered practitioner (s113(1)), punishable by $30,000 fines for individuals. The aim of this is “to protect members of the public by ensuring they are not misled. Specifically, the intent is that if a person uses a title that suggests that the person is registered in a health profession under the national law, a member of the public may be confident that the person is in fact registered under the law and therefore appropriately qualified and competent to practise the profession”.11 Criminalising provisions under the HPRA in relation to wrongful “holding out” have been particularly utilised by the Chinese Medicine Registration Board.

Advertising

Advertising of a health service in a way that is, among other things, false, misleading or deceptive (s133(1)(a)), uses testimonials or purported testimonials about the service (s133(1)(c)) or creates an unreasonable expectation of beneficial treatment (s133(1)(d)) is criminalised. This has been an important issue in Victoria in relation to dental12 and Chinese medicine services13 and to a lesser degree cosmetic and laser eye surgery services provided by medical practitioners.14 The criminal offence provisions are designed to enable the public to repose confidence in the reliability of representations made by health practitioners.

Mandatory notifications

Concern has been expressed in a number of quarters about a problematically low incidence of notifications to regulatory bodies out of hospitals and by peers and tertiary institutions about incompetence, predatory behaviour and poor health of doctors.15 Scandals arising, among other things, from issues relating to Dr Patel16 in Queensland and Professor Kossmann17 in Victoria fuelled the concern to oblige those employed within institutions to report matters of concern to regulatory authorities so action could be taken more promptly to safeguard patients potentially at risk.

Controversially,18 the national law mandates notification about “notifiable conduct”, which is defined in s140 to mean practising while intoxicated by alcohol or drugs; engaging in sexual misconduct in connection with practice; placing the public at risk of substantial harm because of an impairment; and placing the public at risk because the practitioner has practised in a way that constitutes a “significant departure from accepted professional standards”.19 Registered health practitioners (s141(1)), employers of registered health practitioners (s142(1)) and education providers (s143(1)) are mandated to make a notification to AHPRA if they form a “reasonable belief” that a health practitioner has behaved in a way that constitutes notifiable conduct. They are given protection to that end (s237). Health practitioners and education providers are similarly obliged to notify AHPRA if they reasonably believe that a student has an impairment that may place the public at substantial risk of harm.

Good character

In response to critiques by courts20 and commentators21 that the precondition to registration that practitioners be of “good character” lacked conceptual and psychological justification, the national law has substituted the requirement that practitioners be “fit and proper”, a yardstick well recognised in relation to the admission to practice of barristers and solicitors,22 as well as others.23

Pathways of regulation

There are four pathways of regulation under the national law:

  • conduct;
  • performance;
  • health; and
  • being a fit and proper person.

The national law subtly alters the HPRA definitions of “unprofessional conduct” and “professional misconduct”, which is the more serious form of conduct that is dealt with by VCAT.

“Unprofessional conduct” is defined to mean “professional conduct that is of a lesser standard than that which might reasonably be expected of the health practitioner by the public or his or her peers”. It is stipulated to include a wide variety of forms of conduct, including contravention of the national law (s5(a)); contravention of conditions of practice (s5(b)); conviction for an offence, the nature of which may affect the practitioner’s suitability to continue to practise (s5(c)); and “providing a person with health services of a kind that are excessive, unnecessary or otherwise not reasonably required for the person’s wellbeing” (s5(d)).

“Professional misconduct” is defined by s5 to include:

(a) unprofessional conduct that amounts to conduct that is substantially below the standard reasonably expected of a registered practitioner of an equivalent level of training or experience;

(b) more than one instance of unprofessional conduct that, when considered together, amounts to conduct that is substantially below the standard reasonably expected of a practitioner of an equivalent level of training or experience; and

(c) conduct of the practitioner, whether occurring in connection with the practice of the health practitioner’s profession or not, that is inconsistent with the practitioner being a fit and proper person to hold registration in the profession.

This enables scrutiny of serious conduct by a practitioner assessed from the perspective of their colleagues of good repute and competency, but taking into account how long they have been in the profession and the training they have received, scenarios of their having engaged repeatedly in problematic conduct, and their having indulged in conduct that reflects adversely on their suitability to practise and by extension on the reputation of their profession.

“Unsatisfactory professional performance”, by contrast, focuses on underlying issues that may generate instances of problematic conduct and is a separate focus of the regulatory regime.24 It is defined in s5 to mean “the knowledge, skill or judgment possessed, or care exercised by, the practitioner in the practice of the health profession . . . is below the standard reasonably expected of a health practitioner of an equivalent level of training or experience”.

An aggrieved person (whether or not they have been personally adversely affected) may make a “voluntary notification” to AHPRA verbally or in writing (s146) that a practitioner has or may have engaged in unprofessional conduct or unsatisfactory performance; is or may not be a “suitable person” to be registered, including a fit and proper person; has or may have an impairment; has or may have contravened the national law; or has or may have obtained their registration improperly (s144(1)). This continues to enable notifications from third persons.25 Such a notification will prompt an investigation by AHPRA, save in limited circumstances (s151). While the investigation is being undertaken, “immediate action”, such as suspension of the practitioner,26 can be taken by a national board (by its state board/committee by delegation) if it reasonably believes that because of the practitioner’s conduct, performance or health, they pose a “serious risk” to persons and it is necessary to take immediate action to protect public health or safety (s156(1)(a)). However, if a national board proposes to take such action, it must give notice to the practitioner and provide them with an opportunity to make submissions (s157). It remains to be seen how often the focus of national boards’ investigations will be on the underlying issues of performance, rather than specific and identifiable instances of errant conduct.

An important threshold decision, which can be revisited in the course of an investigation, is whether there is a “routing” of the investigation into conduct, performance or health, categories, which can overlap in many and complex ways. If a national board reasonably believes that a practitioner has an impairment or is practising their profession in a way that is or may be unsatisfactory, the board can require the practitioner to submit to an assessment (ss169, 170) with a report coming to the board from the assessor, thereby enabling the board to take whatever action it considers appropriate (s177).

AHPRA investigators have broad powers. They report their findings and recommendations to the relevant national board (s166), after which the board has a wide variety of options, including determining that no further action is required; referring the matter to a performance and professional standards panel (PPSP) or a health panel or to VCAT if it considers the practitioner has engaged in professional misconduct or obtained their registration improperly; or the board can itself caution the practitioner, accept an undertaking from them or impose conditions on their registration (s178(2)).

After a hearing, VCAT can decide that the practitioner has no case to answer and no further action is to be taken against them (s196(1)(a)) or that:

  • they have behaved in a way that constitutes unsatisfactory professional performance;
  • they have behaved in a way that constitutes unprofessional conduct;
  • they have behaved in a way that constitutes professional misconduct;
  • they have an impairment; or
  • their registration was improperly obtained because they or someone else gave the national board information or a document that was false or misleading in a material particular (s196(1)(b)(i)-(v)).

VCAT can impose a wide variety of “determinations” after arriving at an adverse finding. Such determinations have been held not to be punitive,27 although they can be experienced that way by the practitioner.28 They are imposed to protect the public in the sense of deterring the individual from engaging in similar conduct again, as well as other practitioners,29 to facilitate their rehabilitation30 and to “maintain the professional standards of the profession in the eyes of the public”.31 Such determinations include imposing cautions or reprimands,32 imposing conditions on registration, requiring practitioners to pay a fine, suspending their registration or cancelling it (s196(2)), including imposing a period of disqualification for applying for re-registration (s196(4)(a)).33 Generally, decisions of VCAT name the practitioner the subject of them.34

The role of PPSPs, which deal with performance and unprofessional conduct issues, and health panels will be significant as they can intrude significantly into a practitioner’s practice, including by imposing conditions on a practitioner’s registration (s191(3)) and determinations such as reprimands that are recorded on a practitioner’s registration (s225(j)). Contrary to the position under the HPRA, practitioners can now not just be accompanied by a lawyer but, with leave of a PPSP or a health panel, can be represented by them if the panel considers it appropriate in the circumstances of the hearing (s186(2)). This is a reflection of the potential significance of the decisions of such panels and will be an important role for advocates.

Regulating the unregistered

A serious omission in the current legislation, although addressed by legislation in New South Wales and New Zealand,35 is that it does not regulate the conduct, performance or health of deregistered or unregistered practitioners. It is likely that in due course steps will be taken along the lines of the New South Wales model to address this deficiency by enabling preclusion of the proffering of services by such persons if they have contravened the fundamentals of ethical health service provision.

Summary

The new regulatory regime for health practitioners, modelled in significant respects on the HPRA system in Victoria, provides an important step toward nationally consistent and modern regulation, accreditation and registration of health practitioners and students. This is an important contribution to the protection of the public against incompetent and dangerous practice. The reforms provide for additional information on publicly accessible registers, maintain significant involvement in regulation for health practitioners coupled with effective elements of external oversight, and consolidate the professionalism initiated by the HPRA reforms. They vest considerable responsibilities in VCAT’s Occupation and Business Regulation List. The reforms address a range of anomalies that emerged during the two-year HPRA period.

From the perspective of Australian lawyers, the new legislation provides a significant template for national legal profession reform. While the Health Practitioners Regulation National Law (Victoria) Act 2009 (Vic) will be familiar in Victoria as a result of the two-year HPRA period, which constitutes its inspiration, it incorporates significant new concepts and revisions to the previous regulatory legislation. For other states and territories, it transforms regulation and registration and constructively moves Australia closer to nationally consistent regulation for all health practitioners.



IAN FRECKELTON SC is a Victorian barrister. He is the editor of Regulating Health Practitioners (The Federation Press, 2006) and the author of National Regulation of Health Practitioners (The Federation Press, 2011, in press).

1. Except New South Wales where only parts of the legislation have been adopted. Western Australia joined the scheme on 18 October 2010. See further A-L Carlton, “National models for regulation of the health professions” in I Freckelton, Regulating Health Practitioners, 2006, The Federation Press.

2. Productivity Commission, Australia’s Health Workforce: Final Report, 2005.

3. www.coag.gov.au/coag_meeting_outcomes/ 2008-03-26/docs/iga_health_workforce.rtf (accessed 25 October 2010).

4. See I Freckelton, “12 into one: reforming the regulation of health practitioners” (2007) 81(10) LIJ 38.

5. See C Nesvadba and K Forrester, “National regulation and accreditation of Australian health practitioners” (2009) 17 Journal of Law and Medicine 190.

6. Australian Health Practitioner Agency: www.ahpra.gov.au/Health-Professions.aspx (accessed 25 October 2010).

7. See Medical Practitioners Board v Dr Hafizullah, unreported, VCAT, 9 September 2010; Wilks v Medical Board of Australia [2010] SASC 287; Reimers v Medical Practitioners Board of Victoria, unreported, VCAT, 7 September 2010.

8. See D Thomas, “The co-regulation of medical discipline: challenging medical peer review” (2004) 11 Journal of Law and Medicine 382.

9. See L Donaldson, Good Doctors, Safer Patients: Proposals to strengthen the system to assure and improve the performance of doctors and to protect the safety of patients, 2006, UK Dept of Health.

10. See e.g. Medical Board of Australia v Bajpe [2010] VCAT 1439.

11. Health Practitioner Regulation National Law Bill 2009 Explanatory Memorandum.

12. See e.g. Dental Practice Board of Victoria, Re Dr Ari Masters, 24 December 2009; Re Dr Mark Hassed, 30 May 2005.

13. See e.g. Chinese Medicine Registration Board, Re Ghaffurian, 30 August 2007; Re Dias-Ruhl, 28 March 2007: www.cmrb.vic.gov.au/complaints/hearingdecisions .html#VCAThearings (accessed 25 October 2010).

14. See Medical Board of Australia, “Medical Guidelines for Advertising of Regulated Medical Services”: www.medicalboard.gov.au/Codes-and-Guidelines.aspx (accessed 25 October 2010).

15. See e.g. I Freckelton and P Molloy, “The health of health practitioners: remedial programs, regulation and the spectre of the law” (2007) 15 Journal of Law and Medicine 366.

16. See e.g. Queensland Public Hospitals Commission of Inquiry, Report, 2005: www.qphci.qld.gov.au/final_report/Final_Report.pdf (accessed 25 October 2010).

17. See e.g. V Taylor, “Another hospital saga: the chronicles of Professor Kossmann and Bayside Health” (2010) 18 Journal of Law and Medicine 76.

18. See e.g. M Kochardy, “Impairing the practice of nursing: implications of mandatory notification on overseas-trained nurses in Australia” (2010) 17 Journal of Law and Medicine 708.

19. See Medical Board of Australia, “Guidelines for Mandatory Notifications”: www.medicalboard.gov.au/Codes-and-Guidelines.aspx (accessed 25 October 2010).

20. See e.g. Melbourne v The Queen [1999] HCA 32; 198 CLR 1 at [105], per Kirby J.

21. I Freckelton, “‘Good character’ and the regulation of medical practitioners” (2008) 16 Journal of Law and Medicine 488.

22. See e.g. Clyne v New South Wales Bar Association [1960] HCA 40; (1960) 104 CLR 186; Law Society of New South Wales v Foreman (1994) 34 NSWLR 408; Murphy v The Bar Association of New South Wales [2001] NSWSC 1191.

23. See generally Sobey v Commercial and Private Agents Board (1979) 22 SASR 70 at 76; Hughes and Vale Pty Ltd v New South Wales (No 2) [1955] HCA 28; (1955) 93 CLR 127 at 156-157.

24. See A Reid, “Managing poorly performing doctors” in I Freckelton, Regulating Health Practitioners, 2006, The Federation Press.

25. See e.g. the scenario which gave rise to Royal Women’s Hospital v Medical Practitioners Board of Victoria [2006] VSCA 85.

26. See e.g. Sabet v Medical Practitioners Board of Victoria [2008] VSC 346.

27. See e.g. Morris v Psychologists Registration Board, unreported, Supreme Court of Victoria, 19 November 1997, per Harper J at p12; Mullany v Psychologists Registration Board, unreported, Supreme Court of Victoria, 22 December 1997, per Gillard J at p12.

28. Law Society of NSW v Foreman (1994) 34 NSWLR 408 at 443, per Mahoney JA.

29. See e.g. Craig v Medical Practitioners Board of South Australia [2001] SASC 169; (2001) 79 SASR 545.

30. See e.g. Kotowicz v Law Society of NSW, unreported, NSW Court of Appeal, 7 August 1987.

31. See e.g. Ha v Pharmacy Board of Victoria [2002] VSC 322 at [97], per Gillard J.

32. See Medical Board of Victoria v Peeke, unreported, Supreme Court of Victoria, 19 January 1993, per Marks J at p6.

33. See e.g. under previous legislation Medical Board of Australia v Bajpe, note 10 above.

34. Psychology Board of Australia v D [2010] VSC 375 at [29].

35. I Freckelton, “Regulating the unregistered” (2008) 16 Journal of Law and Medicine 413.

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