Significant Changes to the Health Practitioner Regulation National Law

The Background

The National Law is enacted individually by each State and Territory in parallel (or very similar terms) to achieve uniformity across Australia for the regulation of registered health professionals.

In February 2022, following public consultation, the Australian Health Ministers agreed to seek changes to the National Law. The Bill was introduced into the Queensland Parliament (the host jurisdiction for the National Law) for review and debate earlier this year and achieved assent on 21 October 2022 as the Health Practitioner Regulation National Law and Other Legislation Amendment Act 2022 (linked here).

The changes will be automatically applied in most States and Territories, noting that in Western Australia a corresponding amendment Bill will go through the WA Parliamentary process.

Key Changes

Ahpra’s summary of the changes can be accessed by clicking here.

The most significant changes include:

1. The paramount guiding principles are now the ‘protection of the public’ and the ‘public confidence in the safety of services provided by registered health practitioners and students’;

2. A National Board/Ahpra can (following a show cause process) issue a public statement about a practitioner who is the subject of an assessment, investigation, or other proceedings if there is a reasonable belief that because of the practitioner’s conduct, performance or health they pose a serious risk and the statement is necessary to protect public health or safety (and there is no liability incurred by the regulatory body for the making of a public statement made in good faith);

3. A National Board can disclose information to employers or certain associates about the risk posed by a practitioner who is the subject of a notification or investigation;

4. A National Board can give written notice of decisions to other registered health practitioners with whom the practitioner shares a premises or has a ‘practice arrangement’;

5. A National Board has the discretion not to refer a matter to a ‘responsible Tribunal’ (even if it reasonably believes that the practitioner has behaved in a way that constitutes professional misconduct) if the Board decides there is no public interest in the matter being heard by a responsible Tribunal;

6. The maximum penalty for breaching advertising restrictions is increased to $60,000.00 for individuals and $120,000.00 for body corporates;

7. If a Tribunal decides to cancel a practitioner’s registration or the person does not hold registration at the time of decision, the Tribunal may prohibit a person (permanently or for a stated period) from either or both providing any health service or a specific health service, or using any title or a specified title;

8. A Tribunal can impose prohibition orders to restrict a practitioner’s provision of health services (in addition to the current ability to prohibit the provision of specified health services or use of a title);

9. A National Board can accept an undertaking from a person when deciding the person’s application for registration;

10. A National Board can withdraw a practitioner’s registration if it was improperly obtained because of the provision of false or misleading information.

Implications

We anticipate that these changes will be implemented into WA’s National Law without major edits.

The formal change in the guiding principles now requires the public protection and public confidence in the safety of services to be the paramount consideration when exercising regulatory powers.

Whist there are some positives (i.e., discretion for the National Board not to refer to a responsible Tribunal when it is not in the public interest to do so or accept an undertaking to facilitate an application for registration), overwhelmingly, this change in focus will have a negative impact for practitioners.

The National Boards will have broader powers, in the interests of public safety, to make public statements or notify employers about matters even if a decision has not yet been made. This may have serious consequences for practitioners, including irreversible reputational damage, in circumstances where a full inquiry or hearing into their matter is still pending.

To read Ahpra’s communique on the amendments, click here.