Health Practitioner Regulation Diana Newcombe National Director Legal
Health Practitioner Regulation Diana Newcombe, National Director Legal Services 4 March 2015
National Health Practitioner Regulation 2
National Health Practitioner Regulation 3
Health Practitioner Notifications 4
Which professions are notifications made about? 5
Numbers of notifications Total 2013/14 Total 2012/13 Total 2011/12 National NSW 2 Scheme Billing 110 130 107 112 69 120 Boundary violation 204 104 231 110 160 142 Clinical care 2, 694 1, 355 2, 054 1, 313 1, 774 1, 402 Documentation 282 163 181 157 141 139 Offences 165 130 82 128 68 Total 2013/14 6, 811 3, 236 5, 607 3, 041 4, 616 2, 978 6
Principles of Regulatory Decision Making 7
Notifications Process 8
Protection of the public Issue: The practitioner was a registered psychologist. Between 2003 and 2007, she lodged false invoices with the Victims of Crime Assistance Tribunal for counselling sessions that did not take place. Ms Ildiri was found guilty by the Magistrates’ Court of a number of fraud charges. In May 2009, she was sentenced to 9 months’ jail and ordered to pay $51, 675. 90 in compensation. Psy. BA v Ildiri [2011] VCAT 1036 Actions Outcomes Theme(s) At Tribunal, Counsel for the practitioner argued that s 26 of the Charter of Human Rights & Responsibilities 2006 (Vic) which provides that a “person must not be tried or punished more than once for an offence in respect of which he or she has already been finally convicted or acquitted in accordance with law”, The primary purpose of disciplinary proceedings is not to punish a practitioner but rather to protect the public and the reputation of the practitioner’s profession. See also Nursing and Midwifery Board of Australia v Bartlett (Correction) (Review and Regulation) [2013] VCAT 2014 (22 October 2013) The Tribunal found that the practitioner had engaged in unprofessional conduct – leading to reprimand, cancellation and a requirement for further education on return to practice 9
Referral to panel Issue: The Dental Board of Australia receives a notification alleging that a dental practice is engaged in inappropriate billing by charging incorrect item numbers for services provided – a general hand scale (item 114/5) was charged as item 222. AHPRA notifies the affected private health insurer of the claim concerns, resulting in an audit being conducted by the insurer. AHPRA also obtained an expert opinion. On being informed about the audit by the insurer, the billing practices changed but moved to a different item code (item 281). Actions Outcomes Theme(s) AHPRA investigation shows examination of the patient records which identified other billing anomalies, including fees charged for treatment of non-existent teeth and instances where items 114 and 115 were charged together. The dental hygienist attributes the billing irregularities to clerical errors, whilst the dental practitioner sought to defend the use of items as justified– an expert is required on this point. Some investigations require substantial work and obtaining information may take a significant amount of time Board referred the matter to a panel: . Panels are established from a list of approved people, to hear allegations about a particular practitioner. Under the National Law, panels must include members from the relevant health profession as well as community members. The panel finds that the conduct of both the dental hygienist and the dental practitioner was unprofessional. The panel reprimands the dental hygienist and the dental practitioner and imposes conditions on each of their registrations relating to ongoing monitoring. A reprimand is a formal rebuke and is published on the register. Current conditions restrict practice and are published on the register 10
Referral to Tribunal Issue: An OT submitted claims to a number of private health insurers falsely claiming that services are provided during separate consultations on different dates – in fact the services were provided to particular patients during single consultations. This activity continued over an extended period. In addition, services provided in one year were submitted as having been provided in the previous year in order to maximise patient benefits under a Medicare program. Actions Outcomes Theme(s) AHPRA notification to private health insurers and Medicare – they undertake their own investigations The private health insurers provided AHPRA with information obtained during their investigations. On reviewing that information AHPRA identified that the patient records it had previously been provided by the practitioner had been amended prior to giving them to the private health insurers. Effective communication on investigations can be beneficial Referral to Tribunal The Board forms the reasonable belief that the behaviour of the practitioner amounts to professional misconduct and referred the matter to the Tribunal for disciplinary hearing. Where the evidence shows evidence of gaining benefit inappropriately that matter may be referred to the Tribunal irrespective of any other action being taken 11
Professional Misconduct & Unprofessional Conduct Issue: Mr G. provided psychological services to victims of crime through his business Victims of Crime Compensation and Counselling Services (VOCCCS), and the Board alleged that he represented to clients and potential clients through the VOCCCS website that he was associated with the Victims of Crime Assistance Tribunal (VOCAT) in an official capacity. Greco v Psychology Board of Australia [2014] VCAT 254 Actions Outcomes Theme(s) VCAT made findings of professional misconduct in relation to 14 allegations against Mr Greco, including: • misleading and deceptive advertising by VOCCCS • preparing Initial Reports and Assessment Reports on the basis of single interviews • receiving remuneration for referrals in breach of the Code of Ethics • breaching conditions on his registration professional misconduct includes: (a) unprofessional conduct that is substantially below the standard reasonably expected of a registered health practitioner of an equivalent level of training or experience; and (b) more than one instance of unprofessional conduct that, when considered together, amounts to conduct that is substantially below the standard reasonably expected; and (c) conduct of the practitioner. . that is inconsistent with the practitioner being a fit and proper person to hold registration in the profession. It is not mere professional incompetence – it is a deliberate departure from accepted standards or such serious negligence as, although not deliberate, to portray indifference VCAT also found Mr Greco had engaged in unprofessional conduct in relation to five allegations, which included overcharging and overservicing Unprofessional conduct means conduct that is of a lesser standard than that which might reasonably be expected of the health practitioner by the public or the practitioner’s professional peers. A more extensive definition is available under section 5 of the National Law. Each profession has a set of standards and guidelines which clarify the acceptable standard of professional conduct. Refer to www. ahpra. gov. au for a range of publications about Notifications and the National Law. 12
Compliance & Monitoring Issue: Conviction for obtaining Pethidine by false representation and self-administering a Schedule 8 poison, and by creating false records DRP v Medical Board of Victoria [2012] VCAT 1904 (13 December 2012) Actions Outcomes Theme(s) Tribunal decision of professional misconduct (under the previous legislation) Imposition of a series conditions: • not permitted to prescribe, possess or administer Sch 8 drugs • not permitted to self-prescribe or self-administer Sch 4 or Sch 8 drugs • participate in on-going drug screening • participate in the doctor’s health program • under the care of treating practitioners • supervision while at work On-going compliance monitoring occurs where conditions are in place Mandatory Reporting The National Law requires practitioners to advise AHPRA or a National Board of ‘notifiable conduct’ by another practitioner. Mandatory reporting is applicable in a limited number of circumstances Notifiable conduct by registered health practitioners is defined as: • practising while intoxicated by alcohol or drugs • sexual misconduct in the practice of the profession • placing the public at risk of substantial harm because of an impairment (health issue) • placing the public at risk because of a significant departure from accepted professional standards. 13
Fraudulent Documents Issue: The practitioner claimed that she had a diploma in enrolled nursing and that she was enrolled in in a course for which a diploma was a pre-requisite. In support, she presented false documents. and false and misleading statements were made at interview. She was also convicted to fraud in relation to claims for Newstart allowance to which she was not entitled because she was working more than the maximum hours. Nursing and Midwifery Board of Australia v Williams [2013] SAHPT 1 (27 February 2013) Actions Outcomes Theme(s) Tribunal found professional misconduct – although not in the course of nursing practice “Our primary purpose is the protection of the public and in this case the conduct of the respondent is particularly serious and prolonged. In our view it is necessary to make it clear not only to the respondent but also to the profession and to the public that her conduct was unacceptable. We are further of the view that it is necessary to take into account that the respondent was seeking recognition for a higher qualification that to which she was entitled and which would have allowed her to perform nursing duties which she was not qualified to perform which in turn was a clear risk to the public. ” Reprimand two year cancellation not withstanding - Age (57 years) - Obviously remorseful - Very unwell at the time of the proceedings 14
Refusal to renew registration Issue: AHPRA receives a notification from Workcover about a psychologist. The psychologist was convicted of obtaining property by deception, fraudulently obtaining payments and providing false and misleading information under the Crimes Act. He is sentenced to 6 months imprisonment, fined and suspended from work with Workcover for 12 months. The practitioner fails to notify the Board of the conviction. Actions Refused renewal on the basis that not “fit and proper” Outcomes Practitioners have an obligation to notify of a material conviction Registration may be refused where the individual is not a ‘fit and proper’ person to hold registration Referral to Tribunal It is possible for the Board to refer a matter to a Tribunal even where a practitioner is no longer registered – s. 138 of the National Law Theme(s) There may be an interplay with registration at the point of conviction. The Board does not have the power to remove registration other than at the point of renewal Decision not to renew registration will not prevent a referral of a matter to the Tribunal. 15
Questions and discussion 16
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