In 2010, against a background of several high profile investigations into the practices of individual doctors in Australia and the UK, mandatory notification obligations were introduced in Australia. Since then, the regime has attracted its share of controversy, particularly about the requirement for health practitioners to report a notifiable impairment. However, less attention has been directed to the impact of the employers’ obligation on hospitals. As discussed in this article, the consequences for a hospital of failing to educate relevant staff about mandatory notification obligations can be significant.

The Health Practitioner Regulation National Law Act 2009 (Qld) (the National Law) imposes an obligation upon registered health practitioners and employers of registered health practitioners to make a mandatory notification to the Office of the Health Ombudsman (OHO) if they form a reasonable belief that a registered health practitioner has engaged in notifiable conduct.

Who is an employer?

The National Law[1] defines “Employer” as “an entity that employs the health practitioner under a contract of employment or a contract for services”.

This is broader than the employment relationship at common law, and captures hospitals engaging doctors who are not employees in the traditional sense, such as visiting medical practitioners at a hospital.

The facility that “employs” the registered health practitioner bears the obligation to notify.

What is notifiable conduct?

Section 140 of the National Law defines notifiable conduct as a registered health practitioner:

(a) Practising while intoxicated by alcohol or drugs.

(b) Engaging in sexual misconduct in connection with the practice of their profession.

(c) Placing the public at risk of substantial harm in the practice of their profession because they have an impairment.

(d) Placing the public at risk of harm because the practitioner has practised their profession in a way that constitutes a significant departure from accepted professional standards.

For the obligation to be triggered the employer must hold a reasonable belief that notifiable conduct has occurred. The concept of “reasonable belief” has two aspects: objectively, there must be facts which could cause the belief in a reasonable person and, subjectively, the person making the notification must actually hold the belief.

AHPRA advises[2] that while conclusive proof is not necessary, a reasonable belief should be based on personal knowledge of facts and circumstances that are reasonably trustworthy. Mere speculation, rumour or innuendo are not enough.

How does a hospital form a reasonable belief?

A junior nurse employed at the hospital forms a reasonable belief that a consultant has engaged in notifiable conduct. Will her belief be taken to be a belief held by her employer, triggering an obligation for the hospital to make a mandatory notification? Or does the reasonable belief need to be held by the hospital executive collectively?

It is necessary to consider whose belief will be attributed to the hospital. As the National Law does not provide any guidance on this issue, the question may be guided by the common law rules of attribution.

Rules of attribution govern how the state of mind of an individual, or group of individuals, is attributed to a company or organisation. This can occur by legislation, or can be implied by law. The courts will attribute knowledge to an organisation if either:

(a)The knowledge is held by someone in “actual control” of the organisation such that they are its “directing mind and will” (such as a board of directors, or a majority shareholder)[3]; or

(b)The knowledge is held by an individual acting as an agent of the organisation, where they have been given authority to obtain, and have a duty to communicate, the relevant information to the organisation[4].

In the healthcare context, this involves looking at the structure of the hospital, the rules under which it operates and the role that an individual occupies within the hospital. The junior nurse in the above example was not in control of the hospital, nor is she likely to have been acting as the hospital’s agent in forming the belief.

But what about if Ms M, a hospital’s risk and quality manager, forms a reasonable belief in the course of investigating a clinical incident that a nurse was practising while intoxicated. A key part of Ms M’s role is obtaining information about patient safety and clinical incidents, and she has an obligation to report this to the executive of the hospital.

Will Ms M’s knowledge be attributed to the hospital, on the basis that her belief was formed while acting as an agent of the hospital? Arguably this may be the case, even in circumstances where Ms M did not inform members of the hospital executive of this belief. If so, the hospital’s obligation to make a mandatory notification may be triggered, and the hospital could face consequence for failure to notify the OHO.

What are the potential consequences?

A failure by an employer to make a mandatory notification to the OHO can have serious consequences.

If the OHO becomes aware of such a failure, it must give a written report about the failure to the responsible minister. As soon as practicable after receiving such a report, the responsible minister must report the employer’s failure to notify to an appropriate entity which may include the employer’s licensing authority.

What about exceptions?

The National Law[5] provides for exceptions for health practitioners in certain circumstances. Mandatory notification obligations will not be imposed on a registered health practitioner who forms the belief in the course of exercising functions as a member of an approved quality assurance committee or similar body (such as an RCA team), and are prohibited from disclosing the information by legislation. This would excuse a doctor that is a member of an RCA team from mandatory notification obligations.

However, there is no equivalent provision for an employer. Arguably, then, a hospital could face consequences for failure to make a mandatory notification where a belief is attributed to the hospital in these circumstances. It is unclear, however, whether this was the intended outcome.