Kathryn Booth - Maurice Blackburn Lawyers - Mandatory Reporting

OBSTETRIC MALPRACTICE CONFERENCE

23 June 2015

Mandatory Reporting

Kathryn Booth Principal, Medical Negligence Department

Maurice Blackburn Lawyers

Contents 1. Background

2. Mandatory Notification - The National Law

3. Concerns about mandatory notification

4. The results so far

5. Key points

Mandatory Reporting

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1. Background – the patient

The patient

•  Every month we have hundreds of calls from people in relation to complaints about the medical treatment they have received

•  The calls usually relate to an adverse outcome that the caller feels is the result of substandard care

•  Screening of the calls means that we only proceed to investigate 5 to 10% of these complaints

•  The screening is aimed at establishing whether the enquiry concerns a health professional or hospital performing below an acceptable standard resulting in a significant injury

Sometimes it is a complaint about an impaired doctor or a poor performer

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1. Background – doctor/nurse/health professional Real mental health issues in medicine •  Long working hours, inadequate staffing •  Shift patterns •  Stress – professional and personal •  Unrewarding at times •  Lack of support •  Frustration, guilt and self-criticism Can lead to: •  Poor sleep and exhaustion •  Depression, anxiety •  Substance dependence •  Short-cuts •  Impaired decision making •  Errors and harm

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1. Background - risk of harm Causes of harm The injuries or harm we deal with every day commonly arise from: •  Misdiagnosis, delay in diagnosis •  Results being filed and not reported to patient •  Failure to warn •  Failure to adequately monitor •  Failure to communicate •  Failure to follow-up •  Error in medication •  Inappropriate treatment or poorly performed procedure

Increased risk: •  Alcohol or drug intoxication while practising •  A material mental or physical impairment, condition or disorder •  A problem of substance abuse or dependence

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1. Background – reducing the risk of harm

The doctor/nurse/other health professional

Self-regulation

Historically, the medical profession has relied upon self regulation as an approach to ensure that the public are not exposed to the risks of harm arising from short-comings in the conduct and performance of doctors.

•  Largely, doctors are to identify and act on their own problems •  Alternatively, colleagues are to identify an ‘offending’ doctor and counsel or

take action to limit or remove them from practice However, although doctors are often well placed to identify colleagues who

pose risks to patients, they are traditionally reluctant to do so.

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Self-regulation Perceived problems with this approach: • Culture of protection • Turning of a blind eye by colleagues and employers • Reluctance for lower hierarchy to report • Lack of support for ‘whistle-blowers’ • Victimisation and bullying of ‘whistle-blowers’

The example of Dr Patel: • Alleged serious departure from accepted standards of practice and consequential harm to patients • Complaints to his employer (senior management) and Queensland Health • Blind eye turned by his employer and Queensland Health • Victimisation of the whistle-blower by both the medical profession and Parliament despite considerable evidence against him

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In response to these concerns and a reported loss of public confidence in the regulation of the health system…

Proposal to introduce mandatory reporting

Aimed to be: • Fair, timely and appropriate • Proportional • Ensuring public safety, not to punish • Returns practitioner to safe practice where possible

Perceived benefits of encouraging: • Discussion on practitioner conduct and performance • Change in culture of protection or turning a blind eye • Reporting/discovery of ‘offending’ practitioners at an earlier stage • Reporting by lower hierarchy • Protection and change in culture re whistle-blowing

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Health Practitioner Regulation National Law Act 2009 health practitioner means an individual who practises a health profession.

health profession means the following professions :

(a) Aboriginal and Torres Strait Islander health practice;

(b) Chinese medicine;

(c) chiropractic;

(d) dental (including the profession of a dentist, dental therapist, dental hygienist, dental prosthetist and oral health therapist);

Continued…

2. Mandatory notification – The National Law

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Health Practitioner Regulation National Law Act 2009

health profession continued…

(e) medical;

(f) medical radiation practice;

(g) nursing and midwifery;

(h) occupational therapy;

(i) optometry;

(j) osteopathy;

(k) pharmacy;

(l) physiotherapy;

(m) podiatry;

(n) psychology.

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The Act provides a mechanism for both voluntary and mandatory notifications

Voluntary notifications in relation to a registered health practitioner or a

student can be made by an entity who has a belief that a ground exists for the notification.

The grounds upon which a voluntary notification can be made are defined

under s 144 of the Law. These are generally of a less serious nature and with a lower threshold for

reporting. For example, “…that the practitioner is not, or may not be, a suitable person

to hold registration in the health profession”

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Mandatory notification provisions apply to:

• Registered health practitioners;

• Employers; and

• Education providers

The provisions are concerned with:

• The conduct of registered health practitioners (notifiable conduct), or

• Impairment of student practitioners

that put the public at risk of harm

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Health Practitioner Regulation National Law Act 2009 Notifiable conduct is defined under s 140 as:

(a) practising the practitioner’s profession while intoxicated

by alcohol or drugs; or

(b) engaging in sexual misconduct in connection with the practice of the practitioner’s profession; or

(c) placing the public at risk of substantial harm in the practitioner’s practice of the profession because the practitioner has an impairment (physical or mental condition or disorder, including substance abuse or dependence); or

(d) 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.

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s 141 Mandatory notifications by health practitioners

(1) This section applies to a registered health practitioner (the first health practitioner) who, in the course of practising the first health practitioner’s profession, forms a reasonable belief that—

(a) another registered health practitioner (the second health practitioner) has behaved in a way that constitutes notifiable conduct;

or

(b) a student has an impairment that, in the course of the student undertaking clinical training, may place the public at substantial risk of harm.

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s 141 Mandatory notifications by health practitioners

The action required…

(2) The first health practitioner must, as soon as practicable after forming the reasonable belief, notify the National Agency of the second health practitioner’s notifiable conduct or the student’s impairment. Consequences of non-compliance…

• There are no penalties prescribed under the National Law for a practitioner who fails to make a mandatory notification.

• However, a practitioner who fails to do so when required by the provisions may be subject to conduct action.

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s 142 Mandatory notifications by employers (1) If an employer of a registered health practitioner reasonably believes the health practitioner has behaved in a way that constitutes notifiable conduct, the employer must notify the National Agency of the notifiable conduct. .... (4) In this section— employer, of a registered health practitioner, means an entity that employs the health practitioner under a contract of employment or a contract for services.

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s 143 Mandatory notifications by education providers (1) An education provider must notify the National Agency if the provider reasonably believes—

(a) a student enrolled in a program of study provided by the provider has an impairment that, in the course of the student undertaking clinical training as part of the program of study, may place the public at substantial risk of harm; or

(b) a student for whom the education provider has arranged clinical training has an impairment that, in the course of the student undertaking the clinical training, may place the public at substantial risk of harm;

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In summary, the following elements need to be satisfied: 1.  The subject needs to be a registered health practitioner or enrolled student

2.  The obligation is on health practitioners, employers and education providers

3.  Reasonable belief •  Reasonable grounds •  More than merely a suspicion •  Direct knowledge or observation •  For employer, report from a reliable source or sources •  Rumours, gossip, innuendo are insufficient

4.  (a) Notifiable conduct or (b) Impairment placing the public at substantial risk of harm

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Health Practitioner Regulation National Law Act 2009 Exceptions to the requirement to make a mandatory notification:

When the first practitioner -

(a) is employed or otherwise engaged by a professional indemnity insurer and forms the belief as a result of a disclosure made in the course of a legal proceeding or the provision of legal advice arising from the insurance policy; or

(b) forms the belief in the course of providing advice about legal proceedings or in the preparation of legal advice; or

(c) forms the belief in the course of exercising functions as a member of a quality assurance committee, council or other similar body and is unable to disclose the information that forms the basis of the belief because of a provision prohibiting the disclosure of the information; or Continued…

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Health Practitioner Regulation National Law Act 2009 Exceptions

(d) reasonably believes a notification has already been made; or

(e) is a treating practitioner of the offending practitioner or student in Western Australia*

(f) is a treating practitioner of the offending practitioner in Queensland in certain circumstances^ * Health Practitioner Regulation National Law (WA) Act 2010, s 4(7) ^ Where impairment is not believed to place the public at substantial risk of harm or is not professional misconduct – Health Practitioner Regulation National Law (Queensland), s 141 (5) Note: A voluntary notification can still be made in the interests of public safety

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Health Practitioner Regulation National Law Act 2009 Protection from liability for persons making a notification in good faith Under s 237:

•  The making of a notification or providing information does not constitute a breach of professional etiquette or ethics or a departure from accepted standards of professional conduct

•  No liability for defamation is incurred by the person because of the making of

the notification or giving of the information This protection is only extended when

•  The notification or giving of information is done in good faith

However, practitioners who make notifications that are frivolous, vexatious or not in good faith may be subject to conduct action.

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3. Concerns about mandatory notification

•  Abuse of the system for the purposes of personal agenda or market competition

•  Subjective basis of reporting criteria

•  Innocent unfounded notifications impacting on career of health professional

•  Health practitioners avoiding appropriate treatment for fear of a notification by their treating practitioner (however, see Western Australia)

•  Health practitioners being less open about their mistakes in fear of being reported

•  Avoidance by health practitioners of situations of impaired practice for fear of being drawn into making a mandatory complaint

•  Lack of evidence of the effectiveness of mandatory notification

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4. Results so far

Very difficult to assess the impact or effectiveness of mandatory reporting over the last few years, not only because of its infancy, but also in part because of the complex circumstances within which it was introduced:

•  Coincided with the introduction of other changes to the regulatory schemes - AHPRA

•  Public and professional discussion as a result of the changes •  Heightened awareness of the health community of these issues •  New systems in response to various enquiries

Nonetheless, there were initial reports of large drops in calls to Doctor’s Health Advisory Service following the introduction of mandatory notification. Further, a survey by Beyond Blue in October 2013 found that approximately 35% of medical practitioners considered “impact on registration and right to practice” as a barrier to seeking help for depression or anxiety.

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Mandatory notifications 1 November 2011 - 31 December 2012 - Bismark et al (2014)

•  80% of notifications were intra-professional •  46% were by a fellow health practitioner •  46% were by an employer •  8% were by a treating practitioner •  1% were by an education provider

Profession No+fiers n=754

Respondents n = 816

Nurse/midwife 387 (51%) 482 (59%)

Medical prac@@oner

220 (29%) 216 (26%)

Psychologist 38 (5%) 48 (6%)

Pharmacist 29 (4%) 33 (4%)

Den@st 7 (1%) 15 (2%)

Other health prof 16 (2%) 22 (3%)

Non-‐health prof 57 (8%) -‐

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Bismark et al (2014)

Statutory ground and type of concern

No. (%)

Departure from standards

Clinical care 336 (41%)

Professional conduct 107 (13%)

Breach of scope or condi@ons 50 (6%)

Impairment

Mental health 75 (9%)

Cogni@ve or physical health 31 (4%)

Substance abuse 25 (3%)

Intoxica+on

Drugs 61 (8%)

Alcohol 42 (5%)

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Statutory ground and type of concern

No. (%)

Sexual misconduct

Sexual rela@onship between prac@@oner and pa@ent

31 (4%)

Sexual contact or offence 28 (3%)

Sexual comments or gestures 8 (1%)

General observations by the authors included: •  Nearly 2/3 of reports were in relation to departure from accepted

professional standards, especially in relation to clinical care •  Nurses and doctors were involved in 89% of notifications (as notifier and/or

respondent) •  Inter-professional reports were uncommon •  Males doctors are at higher risk of complaint

Bismark et al (2014)

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AHPRA Annual Report 2013/14

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5. Mandatory notifications - key points

• Threshold relies on risk to public •  ‘For example, in a case where the risk is clearly addressed by being

appropriately managed through treatment and the practitioner is known to be fully compliant with that, mandatory notification would not be required. Conversely, a mandatory notification is required if the risk to the public is not mitigated by treatment of the practitioner or in some other way,’

….AHPRA guidelines • High threshold to trigger notification – reasonable belief • Protection of the ‘good faith’ notifier • Risk of conduct action for notifications not made in good faith

However, concerns remain that without a Western Australia style exception nationally, the public could be at increased risk of harm from practitioners who avoid the treatment they need.

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Case study

The O&G trainee’s dilemma Adapted from Gorton, M & Weaver, T, O&G Magazine @ http://www.ranzcog.edu.au/editions/doc_view/1374-62-the-trainee-s-dilemma.html A level-three registrar in O&G telephones the on-call consultant for after-hours advice. On answering, the consultant is found to be obviously inebriated: Was the consultant practising? If so, what were the registrar’s obligations under the National Law? If the hospital/employer was notified, did they too have an obligation? Is the registrar protected? Could the consultant be a serial offender? Can he/she seek help without risk to their registration/practising rights?

Healthcare

Kathryn Booth - Maurice Blackburn Lawyers - Mandatory Reporting