Background
There are multiple provisions of the National Law that give either Ahpra or the National Boards the power to compel individuals to provide specified information, produce specified documents or attend before an investigator or inspector to answer questions. These powers may be used in a number of contexts, including during investigation into an individual who may be committing an offence under the National Law, to allow a National Board to adequately assess a notification or to allow a National Board to investigate a notification.
Generally, a failure to comply with a mandatory notice to provide information, documents or to attend to answer questions is an offence punishable by a fine of $5,000 for individuals or $10,000 for a body corporate. A failure to comply with such a notice by a health practitioner may also be a ground for regulatory action to be taken.
Case and decision
In this instance, Ahpra was investigating allegations Victorian chiropractor Mr David John Williams had continued to practise as a chiropractor following suspension of his registration. Mr Williams owned a chiropractic practice, which was operated by a company named Teenbec Pty Ltd, and Ahpra received complaints that Mr Williams continued to practise there despite his registration being suspended.
Ahpra issued Teenbec Pty Ltd a notice to produce information and documents relevant to their investigation into whether Mr Williams’ was holding himself out as a registered health practitioner despite his suspension. Teenbec Pty Ltd failed to provide the information and documents without lawful excuse.
Despite this failure, Ahpra was able to demonstrate that Mr Williams continued to practise as a chiropractor for a period of at least 16 months while fully aware his registration had been suspended. Mr Williams was charged with and convicted of 4 counts of holding himself out as a registered practitioner, and Teenbec Pty Ltd was charged with and convicted of 2 counts of failing to produce documents and provide information.
The Magistrates Court of Victoria sentenced Mr Williams to a 12-month community corrections order (including 120 hours of unpaid community work) and Teenbec Pty Ltd was fined $8,000.[1] In his sentencing remarks, Magistrate Jason Ong stated Mr Williams’ conduct was a gross breach of trust that put members of the public, who were entitled to believe he was registered, at risk.
Key takeaways
We are often approached by businesses or individuals seeking advice on their rights and obligations after receiving a notice to produce information or documents or to attend to answer questions from Ahpra. Our clients are often shocked to find that there are very few exceptions that excuse compliance with these notices, and information and documents generally must be provided even if there is a lack of patient consent.
Fines for failing to comply with a notice under the National Law can be significant and any notice received should be treated like a subpoena or summons issued by a court. A failure to comply with such a notice can also be grounds for disciplinary action if the notice was directed to a health practitioner or a business controlled by a health practitioner. If you receive a notice like this from Ahpra, it is important to seek legal advice as soon as possible, as the deadline for production of information and/or documents is generally relatively short.
This case is the first prosecution of its kind under the National Law against a company, despite these powers being available to Ahpra since the National Scheme commenced in 2010. In the past, Ahpra have often decided not to prosecute health practitioners who failed to comply with mandatory notices and instead have treated any alleged failure as a disciplinary matter. This prosecution may reflect a change in Ahpra’s approach to enforcement, and confirms Ahpra will not hesitate to prosecute individuals or businesses who fail to comply with a notice without lawful excuse. This speaks to the importance of seeking legal advice promptly.
If you receive a notice under the National Law, we can provide advice on whether that notice has been appropriately issued, the scope of documents and/or information that must be produced in response to the notice, whether there are grounds to challenge the notice and where appropriate, we can negotiate extensions of time for documents or information to be produced. We can also advise whether you may be able to claim compensation for loss or expense incurred in compliance with a notice to produce information, which is often permissible under the National Law.
Contact us to discuss any questions you have about Ahpra’s regulatory powers or your obligations under any notices you have may have received from them.
[1] https://www.ahpra.gov.au/News/2025-01-10-Victorian-chiropractor-sentenced-for-practising-while-suspended.aspx
