The National Regulatory Scheme for health practitioners, under which complaints may be made against health practitioners, has been in place for almost 10 years. One of the principles of the scheme was that AHPRA (the Regulator) and National Boards for each of the 15 regulated health professions, undertake their work on the basis that they will apply restrictions or impose sanctions only to the extent necessary to ensure safe health practice and quality services.
This requirement of the regulatory scheme has been criticised in some cases where the public and others have felt that decisions made in relation to some health practitioners, were “light touch”. In some instances decisions of AHPRA and the National Boards were overturned on appeal by the relevant State and Territory tribunals reducing the conditions or sanctions determined by the National Board.
In considering this, health ministers collectively have determined to issue a “direction” under the National Scheme legislation to require AHPRA and the National Boards to have greater regard for public protection. The direction was issued in January 2020 and will now apply to all matters handled by AHPRA and the National Board in respect of complaints against health practitioners. The general effect of the policy direction will be:
- AHPRA and the National Boards must give a higher priority to public protection and public safety.
- Greater consideration must be given to potential impact of health practitioner conduct on the public, including vulnerable people such as children, aged, people with a disability and targets of family and domestic violence.
- Greater emphasis can be given to support protection of the public, to ensure greater confidence by the public in the health professions.
- Equal weight should be given to the expectations of the public, as well as the professions in the development of standards and in considering what constitutes unprofessional conduct or professional misconduct.
- In determining sanctions, greater regard can be given to the risk the health practitioner poses to the public and the need for deterrence to ensure others do not engage in similar conduct.
The policy direction also allows greater information sharing where unprofessional conduct or professional misconduct is being investigated – particularly with those closely involved with the health practitioner, including employers etc and the relevant State and Territory health departments.
AHPRA and the National Board have also been directed to engage in broader consultation with patient safety bodies and consumer bodies when developing standards, codes and guidelines. In particular, they should take into account the health and safety of vulnerable members of the community and Aboriginal and Torres Strait Islander people. Patient health and safety impact statements should accompany advice and recommendations for changes to standards, codes and guidelines, which impact assessment should be made available to the public.
Regulation under the National Law is finely balanced by the competing interests of health practitioners (who are entitled to a fair hearing, a transparent process and not be subject to malicious or unnecessary complaints), compared with the public which has a right to be protected, a right to have a transparent process to deal with their complaints and a right to have their interests equally considered as important as practitioners. This direction, which has been welcomed by AHPRA and the National Boards, seeks to ensure that the balance between those competing rights and interests better serve public protection and enhance the quality of health services.