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Proposed National Code of Conduct for Unregistered Health Practitioners

Newsletter 11 August 2014

The Health Practitioner Regulation National Law introduced a national regulatory system for registered health practitioners. However, there remains no uniform system in relation to unregistered health practitioners. Recent years have seen an increase in the number of complaints concerning health practitioners who provide health services but fall beyond the reach of the Health Practitioner Regulation National Law. This has led to consideration of a National Code of Conduct with a view to establishing a consistent approach to the regulation of unregistered health practitioners.

An unregistered health practitioner is an individual who provides a health service, but is not registered under the Health Practitioner Regulation National Law. This definition includes many occupations, including dieticians, naturopaths, paramedics, speech pathologists, counsellors and anaesthetic assistants.

Currently, three states in Australia confer powers on health regulatory bodies to impose sanctions on unregistered health practitioners, namely New South Wales, South Australia and Queensland. Codes of Conduct exist in New South Wales and South Australia only. By way of example, a Code of Conduct for Unregistered Health Practitioners has been in place in New South Wales since 1 August 2008. This Code sets out the minimum standards applicable to unregistered health practitioners and the Health Care Complaints Commission has legal powers to enforce the Code.

The Australian Health Ministers’ Advisory Council (AHMAC) undertook national consultation in early 2011 to determine whether unregistered health practitioners should be subject to a single, national statutory Code of Conduct similar to that in effect in the states. The AHMAC released its final report on this proposal in April 2013, finding that ‘a single national Code of Conduct made by regulation, with enforcement powers for breach of the Code is considered likely to deliver the greatest net public benefit to the community.’ On 14 June 2013 the Standing Council on Health agreed in principle to a national Code of Conduct, and to strengthen state and territory complaints mechanisms and statutory powers to assist in the enforcement of the Code.

In March 2014 the AHMAC released a consultation paper seeking public comment in relation to the draft National Code of Conduct (the National Code) and the legislative and administrative changes necessary to enforce it.

The National Code, if implemented, will introduce a number of new obligations for unregistered health practitioners (referred to in the draft Code as ‘health care workers’) as well as expanding on some of the existing obligations found in the NSW Code. In addition to the existing obligations, unregistered health care workers must:

  1. Obtain consent from the client prior to commencing a treatment or service;
  2. Disclose adverse events to the client and take remedial steps to reduce the risk of recurrence;
  3. Report adverse events to the relevant authority;
  4. Seek advice from a qualified health practitioner where suffering an impairment;
  5. Not engage in sexual misconduct; and
  6. Display relevant qualifications at their practice.

It is intended that the National Code will be legally enforceable in each state with powers for the issuing of prohibition orders in the event that the National Code is breached and in circumstances where the unregistered health practitioner poses a serious risk to the health or safety of the public.

The closing date for submissions on the draft National Code was 30 April 2014. A number of organisations publicly released their submissions to the AHMAC. While many have accepted that national regulation of unregistered health practitioners is necessary, some have suggested that a National Code is not the appropriate regulatory forum. There are differing views as to whether particular occupations should be bound by a National Code and concern as to whether a consistent approach will be applied in all states and territories.

As submissions have closed, it is expected that the AHMAC will release a further report of its findings for government and public review. Given the level of criticism found in those few submissions that are currently publicly available, there remains some uncertainty as to whether the National Code as presently drafted will be implemented in the near future. Unregistered health practitioners should, however, be aware of the proposed extension of their obligations to their clients and look to adopt many of the National Code’s principles as best practice.

Dominique Egan, Partner

Newsletter 11 August 2014
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