On the one hand patients must be certain that health practitioners are fit to practice in a competent and ethical manner, but on the other hand practitioners should be able to seek treatment without fear of being reported, penalised or losing their jobs. Has the Council of Australian Governments (COAG) found the right balance?
The National Law contains mandatory reporting obligations for registered health practitioners, employers and education providers to protect patients. However, if you’re for example a midwife, psychologist, pharmacist, doctor or student with a mental health condition, it can be a challenging decision to seek help. Many don’t out of fear that the treating practitioner may believe they have to notify authorities.
Concerns have been raised that practitioners and students don’t seek or delay treatment – and when they seek care, there may be a reluctance to be open and honest with the treating practitioner, leading to suboptimal treatment eventually putting the health and safety of the practitioner and the public at risk.
For years the AMA, RACGP and other professional bodies have argued that the regulation needs to change to ensure health practitioners can, just like others, seek help.
In October 2018 an Amendment Bill was introduced to the Queensland Parliament, which if passed will automatically be applicable to most other States and Territories. The Bill introduces a higher threshold for mandatory reporting in an attempt to give registered health practitioners greater confidence to seek treatment for health issues.
Western Australia exempts treating practitioners from mandatory reporting for all forms of notifiable conduct if their patient is a registered health practitioner. The WA model or similar has always been the preferred option of health providers. There is no evidence to suggest patient safety in WA is worse.
In addition to mandatory reporting requirements, practitioners have ethical and professional obligations to report other practitioners who may pose a risk to the public.
On 13 April 2018, after the COAG Health Council meeting in Sydney, the federal, state and territory Health Ministers, issued a press release stating that the law regarding mandatory reporting of health professionals would be strengthened ‘to remove barriers for registered health professionals to seek appropriate treatment for impairments including mental health.’
The ministers further agreed to a nationally consistent approach to mandatory reporting which would propose exemptions from the reporting of notifiable conduct by treating practitioners, noting Western Australia’s current arrangements would be retained.
Explicitly mentioned in the COAG press release was the fact that in WA health practitioners in a treating relationship based on the reasonable belief can make a voluntary notification as part of their ethical obligations in relation to any type of misconduct.
Health Ministers agreed that the reforms should ensure that registered health practitioners can seek help when needed, but must also protect the public from harm. On 12 October 2018, COAG Health Council approved the reforms to mandatory reporting by treating practitioners in the Amendment Bill. The WA model was not adopted.
The Council concluded that the amendments would achieve the right balance between encouraging practitioners with an impairment to feel confident that they can seek treatment, while protecting the public from harm by requiring treating practitioners to make mandatory reports about other registered health practitioners that pose a substantial risk of harm to the public or are engaging in sexual misconduct in connection with the practice of their profession.
A treating practitioner will only be required to make a mandatory report if their practitioner-patient’s conduct involving impairment, intoxication or departure from professional standards meets a higher threshold of risk of placing the public at substantial risk of harm (this threshold does not apply to mandatory reporting of sexual misconduct).
Only serious impairments that are not being appropriately managed through treatment or mitigation strategies need to be reported if the safety of patients would be at risk.
The amendments also include guidance factors; in considering whether the public is at substantial risk of harm, a treating practitioner may consider the following matters relating to an impairment of the health practitioner or student:
- the nature, extent and severity of the impairment;
- the extent to which the health practitioner or student is taking, or is willing to take, steps to manage the impairment;
- the extent to which the impairment can be managed with appropriate treatment;
- any other matter the treating practitioner considers is relevant to the risk of harm the impairment poses to the public.
According to the explanatory note a treating practitioner may make an overall assessment about a practitioner-patient’s conduct relating to impairment, intoxication or departure from professional standards in deciding whether a mandatory report should be made. All three types of conduct are measured against the same threshold for reporting.
If an impairment issue is connected to, or a significant cause of, intoxication or departure from professional standards, a treating practitioner is able to take into account the effectiveness of treatment or engagement in treatment of an impairment by the practitioner-patient in deciding whether there is likely to be an ongoing risk of harm to the public.
“Also, in cases where an impairment may be impacting on, or causing, instances of intoxication at work or departure from professional standards, a treating practitioner may consider the guidance factors related to the impairment first, such as the extent to which treatment is likely to be successful and the practitioner-patient’s engagement with treatment. If the treating practitioner is satisfied the impairment issue is being managed appropriately and does not reach the threshold of ‘substantial risk of harm’, the treating practitioner would not be required to make a mandatory report for the impairment.
“The treating practitioner could then consider, in light of the impairment issue being managed, whether future instances of intoxication at work or departure from professional standards are likely to recur. If, given appropriate management of the impairment, they are not likely to recur, the mandatory reporting threshold of ‘substantial risk of harm’ would not be met. In this way, the current provisions provide adequate flexibility for a holistic assessment of risk.
“It would be possible for a practitioner to have a substance abuse or dependence disorder, but it may be something that only affects their personal life or only occurs while they are away from their workplace. This type of conduct should be considered as an ‘impairment’ for which it is appropriate to apply the guidance factors. However, the risks associated with a practitioner being intoxicated at work are considered significant, so that if a treating practitioner becomes aware that a person is practising while intoxicated, they should be subject to mandatory reporting if their conduct reaches the threshold.
The explanatory note further states that the guidance factors included in the legislation send a clear signal to practitioners and students that, provided they are engaged in treatment and willing to take steps to address their impairment, a treating practitioner is not required to make a mandatory report, unless the safety of patients would be at risk.
Seeking treatment may indeed become easier as the explanatory note of bill explicitly states that the test of ‘substantial risk of harm’ is not intended to require reporting of low-level or trivial types of harm or mere inconvenience. Only serious impairments which are not being appropriately treated are intended to require reporting. This means that harm would need to be ‘material’ to reach the threshold of ‘substantial risk of harm’.
What’s not so good?
Some have argued that although the wording ‘substantial risk of harm’ may have increased the risk threshold, the harm threshold is low, and it appears that all levels of harm, including trivial harm and inconvenience, need to be reported even though the explanatory note states the opposite.
The explanation may be reassuring but the bill itself raises questions. The wording has the potential to create confusion around the interpretation of the legislation and, worse, may prevent health practitioners from seeking help or being open and honest with their treating practitioner.
Doctors and other health workers have the highest suicide rate in Australia’s white-collar workforce. Legislation is of course not the cause of mental illness and suicide and we need to continue to look at other factors, including our professional cultures and how we communicate and treat each other. This is a shared responsibility of the profession and policy makers.
It remains vital that health practitioners can seek help without fear of repercussion no matter where they live and work. The Health Practitioner Regulation National Law and Other Legislation Amendment Bill 2018 is a welcome step in the right direction, but there is room for improvement if the COAG Health Council wants to deliver on its promise to remove barriers for registered health professionals to seek appropriate treatment for impairments including mental health.