AHPRA’s powers and any limitations in respect of investigating medical professionals

AHPRA and related bodies have comprehensive powers to investigate health practitioners under this Part 8 of the Health Practitioner Regulation National Law (National Law) which sets out the processes and procedures relevant to investigating a registered health practitioner (health practitioner).  Division 8 of Part 8 sets out AHPRA’s investigative powers following a notification, with respect to a belief that the health practitioner has an impairment, unsatisfactory practice or conduct, or with respect to compliance with conditions or undertakings.

NSW has not, however, adopted Part 8 of the National Law in its entirety making it a ‘co- regulatory jurisdiction. There are similar investigative processes and procedures under the Health Practitioner Regulation National Law (NSW) (NSW National Law), however, they are not as comprehensive or streamlined as they are under the National Law. Part 8 of the NSW National Law sets out the legislative framework for, amongst other things:

• unsatisfactory professional conduct;
• professional misconduct;
• mandatory notifications and complaints.

Unsatisfactory Professional Conduct

‘Unsatisfactory professional conduct’ includes:

• conduct significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience;
• contravention of the NSW National Law or the regulations;
• contravention of conditions of registration or an undertaking given to a National Board,for example, the Medical Board of Australia; and
• other improper or unethical conduct (s 139B)

‘Improper’ has been held to mean “in contravention of some code of professional conduct”,12 consistent withthe plain and ordinary meaning of that word. The case of The Queen v Byrnes explained the concept of‘improper’ as follows:

Impropriety does not depend on the alleged offender’s consciousness of impropriety. Impropriety consists in a breach of the standards of conduct that would be expected of a person in the position of the alleged offender by reasonable persons with knowledge of the duties, powers and authority of the position and the circumstances of the case.

The relationship between s 139B(1)(a) (conduct significantly below reasonable standard) and (l) (other improper or unethical conduct) was considered in Health Care Complaints Commission v Little,where at [59] the Tribunal held that s 139B(1)(l) is directed at a broader range of conduct than s 139B(1)(a), and that conduct can be both “significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience” and improper or unethical conduct relating to the practice or purported practice of the practitioner’sprofession.

Professional Misconduct

‘Professional misconduct’ under s 139E means “unsatisfactory professional conduct of a sufficiently serious natureto justify suspension or cancellation of the practitioner’s registration; or more than one instance of unsatisfactory professional conduct that, when the instances are considered together, amount to conduct of a sufficiently serious nature to justify suspension or cancellation of the practitioner’s registration”.

Division 2 of Part 8 of the NSW National Law sets out the circumstances in which AHPRA must be notified of‘notifiable conduct’, which includes “placing the public at risk of harm by practising the profession in a way thatconstitutes a significant departure from accepted professional standards” (s 140(d)). This is one of four types of conduct which is deemed ‘notifiable conduct’. There is no ‘catch all’ subsection: notifiable conduct is limited to thefour types contained in section 140 of the NSW National Law.

‘Accepted professional standards’ includes reference to documents such as codes of conduct, guidelines andpolicies. The Medical Board of Australia has published:

• a code of conduct for doctors in Australia;
• guidelines for mandatory notifications about health practitioners;19 and
• guidance to help health practitioners understand and meet their obligations when using social20

These would all be relevant to any assessment against ‘accepted professional standards’.

Complaints
Any person can make a complaint, including a Council, for example, the Medical Council of Australia (Council),22 orthe Secretary of the Ministry of Health. Complaints may be made to a Council, in this case, the Medical Council of NSW, or the Commission. When a complaint is made, the Council and Commission must consult to see ifagreement can be reached between them as to the course of action to be taken concerning the complaint (s 145A).

The courses of action available to the Council in respect of a complaint (which includes a mandatory notification) are set out in section 145B of the NSW National Law and include:

• making any inquiries about the complaint the Council thinks appropriate (s 145B(1)(a));and
• referring the complaint to the Commission for investigation (s 145B(1)(b)).

The Council may also refer the complaint to the Tribunal (the Civil and Administrative Tribunal, NCAT) (s145B(1)(c)) or a Committee, that is an Assessment Committee or a Professional Standards Committee (s 145B(1)(d)), or the Medical Board of Australia (s 145B(1)(i)) or determine to take no further action (s 145(1)(j)).

In the course of a complaint, where reasonable, the Council may by written notice, direct a health practitioner to undergo an examination by a specified registered health practitioner at a specified reasonable time and place (s 145E).

The Commission may also refer a complaint it receives or makes on its own motion to the Council, a Committee or NCAT, a National Board or otherwise take action under the Health Care Complaints Act 1993 (NSW) (Act). A complaint may be made under the Act concerning “the professional conduct of a health practitioner” including any alleged breach by the health practitioner of Division 1 or 3 of Part 7 of the Public Health Act 2010 (NSW).Relevantly, section 99 of the Public Health Act 2010 (NSW) which is Division 1 of Part 7 provides:

A person must not advertise or otherwise promote the provision of a health service in a manner that –

• is false, misleading or deceptive, or
• is likely to mislead or deceive, or
• creates, or is likely to create, an unjustified expectation of beneficial treatment.

NCAT can also make a prohibition order prohibiting the person from providing health services for the period specified in the order or permanently and/or place specified conditions on the provision of health services by theperson for the period specified in the order or permanently (s 149C(5)). In determining complaints, NCAT is required to not only consider the object of the protection of the public, but to recognise that object also includes deterring the practitioner, and other practitioners from repeating the same misconduct.29 The jurisdiction of NCAT isprotective in nature, not punitive. A determination by NCAT can only be made by reference to the facts of the particular case before NCAT and by considering what measures are needed to ensure the future behaviour of thehealth practitioner, and others, is shaped in such a way that is consistent with these protective goals. The referring body will bear the onus of persuading NCAT that the complaint(s) should be upheld.

Powers of the Council for the protection of the public

The Council has a positive duty to suspend a health practitioner’s registration or impose conditions of registrationwhere “it is satisfied it is appropriate to do so for the protection of the health or safety of any person or persons (whether or not a particular person or persons) or if satisfied the action is otherwise in the public interest” (s 150).This is a broad power and only requires the Council to be satisfied that it is appropriate for them to act in the mannerdescribed

Pursuant to section 150J of the NSW National Law, the Council has powers to require a person to give information, documents or evidence where it is of the opinion that it “would assist the Council in making a decision about actiontaken or proposed to be taken by the Council”. The person subject to the requirement must not without reasonableexcuse, fail to comply with the requirement or otherwise provide false and misleading material. Conditions made under section 150 remain in force until the matter is either finally disposed of, the conditions are varied or lifted by the Council or following a successful appeal, whichever happens first. Similarly, a suspension imposed under section 150 remains in force until the matter is either finally disposed of, the suspension is lifted by the  Council orfollowing a successful appeal, whichever happens first.

The Ability to Review

It is available to a health practitioner to seek review of a decision to suspend the practitioner’s registration or to impose conditions on the practitioner’s registration or alter conditions on the practitioner’s registration under section 150 of the NSW National Law (s 150A). For completeness, it is also available to a health practitioner to apply to a National Board to change or remove a condition imposed on a practitioner’s registration or endorsement or to changeor revoke an undertaking given by the practitioner (s 125(1)).

Similarly, it is also available to a health practitioner who agrees to conditions being imposed on the practitioner’s registration, or to have the registration suspended to ask the Council to alter or remove the conditions or that the suspension be terminated or shortened (s 152K).

Administrative review by the NSW Civil and Administrative Tribunal

It is available to health practitioners to seek administrative review under sections 41C and 45E of the Act (ie the Health Care Complaints Act 1993 (NSW)) in respect of the following decisions under sections 41AA or 41A:

• a decision that the health practitioner has breached a code of conduct for non- registeredhealth practitioners;
• a decision to make an interim prohibition order or a prohibition order in respect of the health practitioner; and
• a decision to issue, revoke or revise a public statement about the health.