Dr Andrew Mulcahy FANZCA Chair Tasmanian Board Medical

Dr. Andrew Mulcahy FANZCA Chair, Tasmanian Board Medical Board of Australia Member, Medical Board of Australia

Mandatory Reporting Obligations for Treating Practitioners Forthcoming changes to the National Law

Mandatory Reporting - Who needs to report • • Treating Practitioners Non-treating Practitioners Employers Education Providers (for students only) – for students mandatory reports are only triggered by concerns re impairment

Mandatory Reporting - How does the National Law protect me? • All practitioners who make a mandatory report in “good faith” are protected under the National Law – “Good faith” has its ordinary meaning – well intentioned, without malice • s 237 provides protection from civil and criminal actions including defamation – Frivolous or vexatious reports can lead to regulatory action against the complainant • Under the National Law making a notification is NOT a breach of professional ethics or a departure from professional conduct

Mandatory Reporting - Exemptions • Western Australia – But professional and ethical obligations – voluntary notification – Not exempt for sexual misconduct • Other practitioners: – Involved in legal proceedings – Providing legal advice – Member of a quality assurance body with legal confidentiality requirements – Reasonably believe another person has already made a notification

Mandatory Reporting - What needs to be Reported 1. Impairment 2. Intoxication while practising 3. Significant departure from accepted professional standards 4. Sexual misconduct

Mandatory Reporting – What is “Reasonable belief”? • Requires direct knowledge (direct observation), not just a suspicion • Rumours, innuendo, speculation, gossip do NOT meet the threshold • If you have received information from a reliable source – encourage that person to make a notification • Mandatory notification should be based on personal knowledge of trustworthy facts or circumstances, to justify a person of reasonable caution to form a reasonable view that there is a risk to public safety • A ‘reasonable belief’ is formed when all known considerations, including matters of opinion are objectively assessed

Mandatory Reporting - What needs to be reported? • Impairment • Intoxication while practising • Significant departure from accepted professional standards • Sexual misconduct

What is Impairment? • Health condition and impairment are NOT the same thing • National Law defines impairment as: – “a physical or mental impairment, disability, condition or disorder that detrimentally affects the person’s capacity to practice the profession” – Includes substance abuse or dependence • No need to report if there are controls in place to manage the impairment and reduce the risk to the public – Eg treatment, modified scope of practice, break from practice, monitoring and supervision • Note: higher threshold for treating practitioner

Mandatory Reporting - What needs to be reported? • Impairment • Intoxication while practising • Significant departure from accepted professional standards • Sexual misconduct

What is Intoxication while practising? • Not specifically defined in the National Law – So ordinary meaning of “under the influence of alcohol or drugs” • Intoxicated = when reasonable care and skill is adversely affected by alcohol or drugs • Key issue is that the practitioner practised while intoxicated – Irrespective of when the alcohol/drugs were consumed • Intoxication in private life does not warrant a mandatory notification • Note: higher threshold for treating practitioner

Mandatory Reporting - What needs to be reported? • Impairment • Intoxication while practising • Significant departure from accepted professional standards • Sexual misconduct

What is significant departure from accepted professional standards? • “accepted professional standards” refers to documents such as a code of conduct • There must be a significant departure which places the public at risk of harm – A serious departure which is obvious to any reasonable practitioner • Does not refer to ‘innovative practice’, nor simply different clinical decision making or treatment approaches • Note: higher threshold for treating practitioner

Mandatory Reporting - What needs to be reported? • Impairment • Intoxication while practising • Significant departure from accepted professional standards • Sexual misconduct

What is sexual misconduct? • Includes: – – – Sexual activity with a current patient, irrespective of consent Making sexual remarks Touching patients in a sexual manner Intimate exams without clinical indication and consent Sexual behaviour in front of a patient • May include past patients – Patient vulnerability, extent of professional r’ship, length of time since being a patient • Note: different conditions for treating practitioner

Mandatory Reporting – Treating Practitioners • Significant changes in the amendments to the National Law – But not a total exemption – Higher threshold for reporting – Except for sexual misconduct – lower threshold • Only report if there is a substantial risk of harm – Substantial risk = very high risk – Need to consider whether the risk is controlled or managed • Failure to report may lead to regulatory action • Note exemptions, inc. practitioners in WA

Assessing the risk of harm

Mandatory Reporting - What needs to be reported? • Impairment • Intoxication while practising • Significant departure from accepted professional standards • Sexual misconduct

Treating Practitioners - Impairment • Considerations in practitioner-patients with impairments: – Nature, extent and severity of the impairment – What steps are being taken to manage the impairment – How well the impairment can be managed • Not all impairments need to be reported – Rare or possible risk does NOT trigger a mandatory report – Practising with a mental illness or physical health condition does not necessarily trigger a mandatory report

Treating Practitioner - Impairment

Mandatory Reporting - What needs to be reported? • Impairment • Intoxication while practising • Significant departure from accepted professional standards • Sexual misconduct

Treating Practitioner - Intoxication • Must report if you form a reasonable belief that the practitioner-patient is placing the public at substantial (very high) risk of harm by practising while intoxicated by drugs or alcohol • Key issue is that the practitioner practised while intoxicated – Irrespective of when the alcohol/drugs were consumed • Intoxication in private life does not warrant a mandatory notification • If the intoxication is connected to an impairment, need to consider whethere is appropriate treatment in place

Treating Practitioner - Intoxication

Mandatory Reporting - What needs to be reported? • Impairment • Intoxication while practising • Significant departure from accepted professional standards • Sexual misconduct

Treating Practitioner – Departure from Professional Standards • You must report if practitioner-patient is placing public at substantial (very high) risk of harm • May be very difficult to assess as a treating practitioner – Without direct observation – More likely to be made by other practitioners

Treating Practitioner - Departure from Professional Standards

Mandatory Reporting - What needs to be reported? • Impairment • Intoxication while practising • Significant departure from accepted professional standards • Sexual misconduct

Treating Practitioner – Sexual Misconduct • Different requirements to other 3 categories of notifiable conduct • Must report if you form a reasonable belief that practitioner-patient: – Has engaged – Is engaging – Or is at risk of engaging in sexual misconduct with their practice • You must report past, current and future risk (connected with practice) • Note WA treating practitioners are NOT exempt

Treating Practitioner – Sexual Misconduct

Treating vs Non-treating practitioners • Generally lower threshold (but still high) for non-treating pract’s • Non-treating practitioners need to consider whethere is a risk of substantial harm (as opposed to a substantial (very high) risk of harm) • Risk of substantial harm = high risk of harm to the public

Treating vs Non-treating Practitioners - Impairment Treating Pract – higher threshold Non-Treating Pract – lower threshold

Treating vs Non-treating Practitioners - Intoxication Treating Pract – higher threshold Non-Treating Pract – lower threshold

Treating vs Non-treating Practitioners – Departure from Standards Treating Pract – higher threshold Non-Treating Pract – lower threshold

Treating vs Non-treating Practitioners – Sexual Misconduct Treating Practitioner Non-Treating Practitioner

Mandatory Reporting • Still not sure: – Contact your MDO – Contact AHPRA/MBA • Mandatory reporting obligations apply to ALL registered health professionals • You can be subject to regulatory action for not making a mandatory report