Failure to make a Mandatory Notification - A Risk to your Registration
On 4 February 2015 the ACT Civil and Administrative Tribunal approved a consent determination that is one of the first reported decisions of a failure to make a mandatory notification under the Health Practitioner Regulation National Law.
What were the facts?
The Respondent practitioner was the owner and manager of a general practice clinic in Canberra. During 2012 the clinic engaged another GP (‘GP 2’) to work at the clinic. For a period of 8 months during GP 2’s practice at the clinic, he was involved in a sexual relationship with one of his patients. The Respondent was not aware of the relationship between the patient and GP 2 until the patient disclosed it to the Respondent during a consultation in late 2012. Although the decision does not provide details of any investigation conducted at the clinic, GP 2’s engagement at the clinic ceased at around this time.
The Respondent discussed the relationship and its effect on the patient’s health during six consultations with the patient. During his sixth consultation with the patient, the Respondent prepared a mental health plan for the patient and, at the patient’s request, referred her to a clinical psychologist.
Further, during his consultations with the patient the Respondent engaged in physical contact with the patient and made comments referring to her physical similarity to a former girlfriend of the Respondent.
Why was a mandatory notification required?
The National Law requires health practitioners to make a notification when, during the course of their practice, they form a reasonable belief that notifiable conduct has been committed by another practitioner. Notifiable conduct includes sexual misconduct that occurs during the practice of a health profession.
The National Law also requires employers to make notifications where they have a reasonable belief that a practitioner they employ or have contracted with has behaved in a way that constitutes notifiable conduct. Although not referred to in ACAT’s decision, the employment relationship between the clinic and GP 2 would also have required the Respondent to make a notification.
What sanctions were imposed?
ACAT found that the Respondent engaged in ‘professional misconduct’ by failing to make a notification to the Medical Board regarding GP 2’s conduct. ACAT’s orders reflect penalties agreed to by the Board and the Respondent. The penalties imposed include a reprimand, for the Respondent to undertake clinical communication education, and for the Respondent to have a Board-approved mentor for at least 12 months.
The Respondent has also been prohibited from having any actual or perceived role as a supervisor of other practitioners in any practice that he owns or at which he works, including professional supervision, reviewing of complaints, or making or advising on decisions relating to ethical obligations on medical practitioners. These restrictions apply for at least 2 years. In a concession to the Respondent’s role as the owner and operator of multiple clinics, the determination permits the Respondent to continue involvement in employment matters, business management and financial management of clinics that he owns or where he works.
The sanctions imposed are significant and are likely influenced by the specific facts of this case. The Respondent’s own reportable conduct (physical contact and personal comments), the fact that this reportable conduct occurred in a practitioner-patient relationship and the fact that this conduct occurred during consultations discussing professional boundary violations which he then infringed himself mean that it is difficult to estimate the potential penalties that may have been imposed if the case related only to the failure to notify.
Although not referred to in the agreed facts accepted by ACAT or ACAT’s decision, in bringing this action the Medical Board is likely to have had regard to the ethical obligations of health practitioners to ensure that health services are provided to the public in a manner that does not exploit the patient-practitioner relationship and does not involve conduct that places the public at risk. The sanctions imposed also suggest that for supervising or senior practitioners, these obligations also extend to ensuring that patient concerns are addressed at the earliest opportunity.
How does this impact your practice?
ACAT’s decision is one of the first published decisions involving professional disciplinary consequences for practitioners who fail to make a notification upon becoming aware of notifiable conduct. The decision serves as a reminder that all practitioners and employers of practitioners have a role to play in the protection of the public, and highlights that a failure to adhere to these requirements can have personal professional consequences.
Mandatory reporting requirements have existed since the Health Practitioner National Law came into effect in July 2010. Despite this, many practitioners remain unaware of the strict requirements imposed by the National Law and the circumstances in which a mandatory notification is required. Many employers of health practitioners are also not yet familiar with the obligations imposed on them by the National Law.
Anecdotal evidence suggests that since the introduction of the mandatory reporting regime, many practitioners and employers have preferred to manage instances of notifiable conduct through internal disciplinary processes without making a notification. Such an approach may be justified in order to obtain relevant information, however the National Law is clear that once a ‘reasonable belief’ is formed that notifiable conduct has occurred, a notification must be made. Importantly, the notifications process is confidential and therefore any concerns regarding patient-practitioner or employer-employee confidentiality should not prevent a notification from being made.
Practitioners unsure whether a mandatory notification is required should seek advice from their medical indemnity insurers, and employers should seek advice from their insurers or obtain legal advice.
Cindy Tucker, Partner