With national registration of paramedics set to commence later this year, paramedics should start to familiarise themselves with the obligations and responsibilities that come with national registration. As registered health practitioners, paramedics will be subject to the provisions of the Health Practitioner National Law (the National Law) and as such, will be subject to mandatory reporting obligations. Mandatory reporting obligations apply equally to all health practitioners registered under the National Law.
Division 2 of Part 8 of the National Law requires practitioners, employers and education providers who have formed a reasonable belief that ‘notifiable conduct’ has occurred, to report such conduct to the Australian Health Practitioner Regulation Agency (AHPRA). The purpose of such a requirement is to minimise the risk of harm to the public.
In relation to a registered health practitioner, ‘notifiable conduct’ is defined by section 140 of the National Law to mean a practitioner has:
- practised the practitioner’s profession while intoxicated by alcohol or drugs; or
- engaged in sexual misconduct in connection with the practice of the practitioner’s profession; or
- placed the public at risk of substantial harm in the practitioner’s practice of the profession because the practitioners has an impairment; or
- placed 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
The threshold for making a mandatory notification is high. The person or organisation making the notification must have a reasonable belief, based on reasonable grounds, that the practitioner has engaged in notifiable conduct. Mere suspicion, speculation, rumours, gossip or innuendo are not enough. Generally direct knowledge or observation of the conduct would be required. The purpose of the mandatory notification requirements is to protect the public from being placed at risk of harm and the focus therefore is on the behaviour that puts the public at risk. It is not enough to simply not like another practitioner, not like the way they do something, or think they could do a better job. Further, the reasonable belief that notifiable conduct has occurred must be formed in the course of practising one’s profession. There is no requirement to make a mandatory notification about conduct observed as a patient or bystander for example (although you may still choose to make a voluntary notification in such circumstances).
The obligation to report notifiable conduct applies to all practitioners in all health professions, not just those in the same health profession. So for example, a paramedic may form a reasonable belief that a medical practitioner or nurse practitioner has engaged in notifiable conduct based on observations made in a hospital (while the paramedic is in the course of practising their profession). Vice versa, a medical practitioner or nurse practitioner (in the course of practising their profession) may form a reasonable belief that a paramedic has engaged in notifiable conduct. The requirement to make a mandatory notification does not apply to students. However, while a student is not required to make a mandatory notification, a student can be the subject of a mandatory notification. An education provider is required to report a student to AHPRA if the student has an impairment that may place the public at risk while the student is undertaking clinical training.
The term ‘impairment’ is defined by section 5 of the National Law. With respect to a registered health practitioner, it means the practitioner has a physical or mental impairment, disability, condition or disorder (including substance abuse or dependence) that detrimentally affects or is likely to detrimentally affect the practitioner’s ability to practice their profession. The fact that a practitioner has an impairment (as defined) is not of itself enough to trigger the mandatory reporting requirements. The public must be at risk of substantial harm as a result of the practitioner’s impairment. As such, if there is no risk of substantial harm, for example where the practitioner’s impairment is being treated or the practitioner practices appropriately and safely in light of their condition, then the mandatory notification requirements will not be triggered.
Section 237 of the National Law protects a person who makes a mandatory notification in good faith from civil, criminal and administrative liability, including defamation. It also makes it clear that making a notification is not a breach of professional etiquette or ethics or a departure from accepted standards of professional conduct.
A mandatory notification should be made as soon as practicable. While failure to make a mandatory notification does not constitute an offence, it may constitute behaviour for which health, conduct or performance action may be taken under the National Law. There are examples where registered health practitioners have been the subject of action by their National Board for failure to make a mandatory notification.
There are some exceptions to the requirement to make a mandatory notification. These arise when the practitioner who would be required to make a mandatory notification:
(a) is employed or engaged by a professional indemnity insurer, and forms the belief because of a disclosure in the course of a legal proceeding or the provision of legal advice arising from the insurance policy
(b)forms the belief while providing advice about legal proceedings or the preparation of legal advice
(c) is exercising functions as a member of a quality assurance committee, council or other similar body approved or authorised under legislation which prohibits the disclosure of the information
(d) reasonably believes that someone else has already made a notification
(e) is a treating practitioner, practising in Western Australia[1], or
(f) is a treating practitioner, practising in Queensland in certain circumstances.[2]
Once a mandatory notification has been made, AHPRA and the relevant National Board will investigate the notification. The National Boards have the power to take action to protect the public, including the power to take immediate action to suspend a practitioner’s registration or impose a condition on their registration.
Most of the National Boards have published Guidelines for Mandatory Notifications which include decision guides to assist practitioners. It is anticipated the Paramedicine Board will follow suit and in time publish a Guideline of its own. In summary, a registered health practitioner who forms a reasonable belief in the course of practising their profession that another health practitioner (from any health profession) has engaged in notifiable conduct is required to notify AHPRA as soon as practicable of that conduct. Failure to do so may result in health, conduct or performance action under the National Law.
Meridian Lawyers is well placed to provide advice to paramedics and other registered health practitioners about their obligations and responsibilities under the National Law, including mandatory reporting. We can also assist practitioners who may be the subject of a mandatory notification.
This article was written by Principal Marianne Nicolle. Please contact us if you have any questions or would like more information.
[1] Section 141(4)(da) Health Practitioner Regulation National Law (Western Australia).
[2] Section 141(5) Health Practitioner Regulation National Law (Queensland)
Disclaimer: This information is current as of April 2018. These articles do not constitute legal advice and do not give rise to any solicitor/client relationship between Meridian Lawyers and the reader. Professional legal advice should be sought before acting or relying upon the content of these articles.