The expression applies as much to events happening in our lives, as it does to health practitioners who seek to avoid the dreaded notice from AHPRA advising of a notification or investigation about them.
Practitioners do not have the luxury of selecting their patients after a thorough background check to see whether they have any “form”. I suggest many would like that opportunity.
Vexatious complainants are out there and always will be. They can be motivated by a personal gripe with a practitioner, a perceived poor outcome from a procedure (despite being advised of such a risk), a desire for attention or the pursuit of financial reparation.
That said, most notifications are genuine, made for varying reasons, including out of concern for the public, to ensure that an incident does not occur again or because there are bona fide deficiencies identified with a practitioner’s performance or conduct.
As readers are probably aware, there are also mandatory obligations on employers and other registered health practitioners to report practitioners to AHPRA in certain circumstances, including where they may have practised intoxicated or engaged in sexual misconduct in their practise.
Receiving a notice from AHPRA is extremely stressful for practitioners, not least due to the potential impact on reputation and career prospects. It can be extremely upsetting and make practitioners second guess their capabilities.
It is comforting to know that no further action is taken with respect to many notifications received by AHPRA. In its most recent annual report, AHPRA noted that Boards closed over 70% of notifications following assessment (that is, matters not requiring investigation). In 92% of these cases, the relevant Board took no further action.
Of the notifications closed in the relevant period, only 14% resulted in regulatory action about a practitioner.
Those are encouraging figures but provide little comfort to those practitioners who are the subject of investigations or, worse still, have proceedings commenced against them in the State Administrative Tribunal.
Following receipt of a notification, AHPRA may seek your response without the notification first being considered by the Board. Your response is then considered and the matter may be immediately closed. This triage process helps to weed out any notifications which are lacking in substance or adequately defended by the practitioner in the first instance and, importantly for AHPRA, increases efficiency.
Before providing any response to a notification, it is important to take advice from your medical defence organisation. They may advise you to say nothing at that stage (for example, due to a lack of detailed allegations or lack of supporting documents) or to provide a detailed response. That decision will be informed by a number of factors, including the nature of the allegations. Given their vast experience, you should seriously consider accepting the advice of your MDO.
Despite a burning desire to shoot off a fierce response, the wisdom of filing that in the “drafts” folder of your email is worth adhering to. By making comments early, it is possible that you may say something that is unhelpful down the track or plainly offensive. While gratifying at the time, it is unhelpful down the track.
It’s important to know what issues the Boards (AHPRA) can investigate. The obvious ones are those related to your conduct or performance as a health practitioner. Perhaps the less known ones are those relating to your health and those concerning your conduct in your personal life.
The worst outcome for a practitioner is to be referred to the SAT for professional misconduct. That term is defined broadly in the legislation and includes conduct substantially below the standard reasonably expected of a practitioner of that level of training or experience. It also includes conduct unconnected to the profession that is ‘inconsistent with the practitioner being a fit and proper person to hold registration in the profession’. Think criminal convictions.
When thinking about how to minimise the risk of a notification to AHPRA, it’s useful to look at the statutory grounds, and also to look at the types of cases that fall within the various categories.
Conduct and performance
These grounds are self-explanatory. You must not act inappropriately as a health practitioner. This includes maintaining professional boundaries and being courteous and respectful to patients and colleagues. More bluntly, these involve doing the right thing.
With respect to performance, regulatory action may be taken against a practitioner where their knowledge, skill or judgment falls below the standard reasonably expected. This ground generally relates to clinical competence and clinical decision-making. Practitioners are obliged to keep up to date with modern practice and methods, obtain feedback from patients and colleagues, audit their practice, and work within their scope of competence. It is ill-advised for practitioners to carry out procedures which are not part of their usual practice without adequate further training.
Practitioners can be referred to the Board in relation to their health. The Board has power to refer practitioners for a health assessment if it reasonably believes that they have a condition that may detrimentally affect their capacity to practise. This includes where drugs or alcohol may be affecting a practitioner.
It is strongly recommended that practitioners have a regular GP, particularly given the stressors and workload involved in everyday practice.
In addition to a GP, there are a number of support groups available for practitioners provided by professional associations and other industry bodies. These should be utilised when necessary.
It is also important for practitioners to keep their employers informed about any health issues which may be affecting their work. While that may be confronting and be accompanied by feelings of shame, ignoring those issues can lead to more harmful outcomes with devastating repercussions.
As referred to earlier, the Boards have jurisdiction over some of your personal conduct. Behaviour that you may (rightly) feel has nothing at all to do with your job or your profession as a health practitioner may still attract the attention of the Board.
You are obliged to report certain events to AHPRA, including where you are charged with an offence punishable by 12 months or more imprisonment. You would be well advised to contact your MDO if you are charged with any offence so they can advise you on whether it is necessary to report the conduct to AHPRA.
Below are some take-home tips for controlling what you can do to avoid an AHPRA referral. While many seem obvious and may not avoid a notification, they can often be the difference between regulatory action being taken (including referral to the SAT) and no further action:
- Keep full, accurate and contemporaneous clinical records. This is a challenge with the busyness of everyday practice. It is critical for you to record the process of taking informed consent and make a note of any documentation you have provided the patient.
- Seek the advice of colleagues or mentors when unsure. This may help you defend your decision-making.
- Use a chaperone where appropriate (and even when patients decline!). Chaperones are there to protect you (as well as the patient). Their presence can be critical when defending allegations of sexual misconduct.
- Be aware of professional boundaries with patients and colleagues. Seek to terminate the therapeutic relationship at the first sign of a relationship evolving into something personal.
- Be informed and cognisant of Medicare requirements with respect to the billing of items. Do not be satisfied that your billing is fine “because everyone else is doing it”.
- Don’t self-prescribe and don’t prescribe for your friends and family – the various codes of conduct stipulate that this should be avoided wherever possible. If you have to do so, be prepared to justify your decision, make a clear record of what you have done, and advise the patient’s GP in writing (unless the patient objects).
- Communication – it’s hard to emphasise enough the importance of good communication – with patients and colleagues. Try to document all conversations or follow up important conversations with an email where there is potential for dispute.
- Be open and honest and apologise if something goes wrong. Importantly, do not actively dissuade aggrieved patients (or anyone) from making a notification.
- Be very careful when using social media, even on your personal pages. Health practitioners are obliged to ensure their views are consistent with public health messaging. This is particularly relevant in current times.
- Engage regularly with a GP and/or psychiatrist/psychologist. As well as maintaining good mental health, this can assist you if concerns are ever raised that you may have a health impairment which is affecting your practise.
- Be a good colleague and allow your colleagues to support you. Asking for help can prevent a situation escalating out of control.