Recent allegations in the media about an aged care facility in Queensland have highlighted the importance of aged care providers being aware of their mandatory notification obligations as employers, in particular where concerns relate to conduct of employees who are registered under the Health Practitioner Regulation National Law (National Law).
The reporting requirements of the National Law focus on the protection of the public against unsatisfactory professional conduct and professional misconduct by registered health practitioners. The Australian Health Practitioner Regulation Agency (AHPRA) and the State boards have powers under the National Law to investigate and discipline health practitioners whose conduct may impact upon public safety. Arguably, this is particularly important for aged care services that provide care to a particularly vulnerable population.
Under the National Law, employers must notify the appropriate regulatory authority (see below) if the employer has a reasonable belief that a registered health practitioner, such as a registered or enrolled nurse, has behaved in way that constitutes notifiable conduct. Under the National Law notifiable conduct, in relation to a registered health practitioner, includes:
- practising while intoxicated by alcohol or drugs
- engaging in sexual misconduct in connection with the practice of the practitioner’s profession
- placing the public at risk of substantial harm in the practitioner’s practice of the profession because the practitioner has an impairment (which includes substance abuse or dependence that is likely to affect the person’s ability to practice their profession)
- placing the public at risk of harm because the practitioner has practised the profession in a way that constitutes a significant departure from accepted professional standards.
As long as the employer has a belief having some factual or objective basis reasonable in the circumstances and satisfies one of the above criteria, the mandatory notification obligation of an employer arises. The conduct does not have to be proven. The report itself should be made as soon as practicable after the reasonable belief has been formed. Employers have an indemnity from civil or criminal liability if a mandatory notification is made in good faith.
Importantly, registered health practitioners also have a corresponding obligation to make a mandatory notification as soon as is practicable following the forming of a reasonable belief that another registered health practitioner has engaged in notifiable conduct. For example, a person in charge of a residential aged care facility, who is also a registered nurse, is subject to the mandatory notification requirements of the National Law. Failing to notify may in itself constitute unsatisfactory professional conduct by that registered health practitioner.
Any individual, including an employer or other registered health practitioner, can make a complaint about a registered health practitioner under the National Law if there are concerns about the professional conduct of a registered health practitioner, but the concerns do not meet the threshold of notifiable conduct.
With the exception of Queensland, all mandatory notifications are to be made to AHPRA. In Queensland, from 1 July 2014 all mandatory notifications (and other health care complaints) were to be made to the Queensland Health Ombudsman.
Mandatory notifications in most states and territories will be referred by AHPRA to the relevant national registration board for further investigation, although in New South Wales, notifications are referred by AHPRA to the Health Care Complaints Commission.
If AHPRA becomes aware of an employer’s failure to make a mandatory notification, AHPRA must provide a written report to the responsible Minister in the relevant State or Territory. This report is also then provided to an appropriate regulatory entity in that jurisdiction, whether that be a licensing or registration board, or similar. A negative Ministerial report may lead to investigation and monitoring for compliance of an approved aged care provider by the regulator.