INSIGHTS: A reminder of what is notifiable conduct, and the consequences of failing to notify

On 4 February 2015 the ACT Civil & Administrative Tribunal found a medical practitioner had breached section 141 of the Health Practitioner Regulation National Law (ACT) by failing to notify the Medical Board of Australia of Notifiable Conduct of another practitioner.

The following facts were agreed:

• Dr A, a medical practitioner, owned a clinic and engaged Dr K to work there during the period February to October 2012.
• Dr K engaged in a sexual relationship with a patient between 24 February 2012 and 29 October 2012.
• The patient requested a consultation with Dr A on 29 October 2012. Dr A saw her a further five occasions. At each consultation the focus was on the relationship between the patient and Dr K and its effect. Despite what the Board considered to be a conflict of interest, the patient was not referred to any specialist practitioner until 25 March 2013 when a referral was made to a psychologist. It was the psychologist that reported the conduct to Australian Health Practitioner Regulation Agency (AHPRA).
• In the course of providing treatment it was agreed that Dr A had made inappropriate comments to the patient. The comments were of a personal nature regarding her youthfulness and similarity to a former girlfriend.
• In breach of Section 141 of the National Law Dr A did not notify AHPRA of Dr K’s conduct. He allowed Dr K to continue working at the clinic until after the psychologist had reported the conduct to AHPRA.

The finding

The Medical Board of Australia v Al-Naser [2015] ACAT 15 (4 February 2015)

Dr A was found to have engaged in professional misconduct and reprimanded. The Tribunal ordered that Dr A complete a course of clinical communication. The Tribunal also ordered that for a period of two years Dr A not have any actual or perceived role as a supervisor in any practice that he owns or has an interest in or works in. That prohibition extended to Dr A supervising employees and contractors and prohibited him from being involved in decisions in relation to the review of any complaints made against staff and from giving guidance to staff in relation to their professional obligations.

The lessons to be learned

This case is of relevance to all health practitioners that are regulated by the National Law, and who are therefore required to report Notifiable Conduct. The obligation applies to any regulated health practitioner who has formed a reasonable belief that the behaviour of another regulated health practitioner constitutes Notifiable Conduct.

Notifiable Conduct is defined as having occurred when:

• A practitioner has practised the practitioner’s profession while intoxicated by alcohol or drugs. The key requirement is that the practitioner has practised whilst intoxicated.
• A practitioner engages in sexual misconduct in connection with the practice of the practitioner’s profession. Engaging in a sexual act with a current patient will constitute sexual misconduct. Engaging in sexual conduct with a former patient may also be regarded as sexual misconduct, depending on the circumstances. It is important to understand that sexual misconduct, whilst undefined, is not limited to a sexual relationship and can include for example, the making of sexual remarks or innuendo.
• Placing the public at risk of substantial harm because of an impairment. It is important to recognise the need for the risk to have caused the harm.
• Placing the public at risk of harm because of practice that constitutes a significant departure from accepted professional standards.

There are exceptions to the requirement for mandatory notifications. Most relevantly, these include an occasion where a practitioner reasonably believes that somebody else has made a notification to AHPRA.

It is important to understand that health practitioners are only requested to notify the conduct if they have formed a reasonable belief that a health practitioner (and not necessarily limited to the profession in which they are practicing) has behaved in a way that constitutes Notifiable Conduct in relation to the practice of their profession.

In Western Australia there is no legal requirement for treating practitioners to make a mandatory notification about patients (or clients) who are practitioners or students in one of the regulated health professions. A similar exception exists in Queensland.

This case is a timely reminder of the fact that National Boards have the power under the National Law to take action on the registration of a health practitioner who does not comply with the mandatory reporting requirements.

It is strongly recommended that all health practitioners familiarise themselves with the Guidelines for Mandatory Notifications as published by AHPRA in March 2014.

For further information, please contact Principal Kellie Dell’Oro.