Timothy Bowen

Senior Solicitor – Advocacy, Claims & Education

The latest disciplinary perspectives

Recent regulatory reviews, revalidation and risk-based regulation

How might the system look in 5 years?

4 potential areas of change

• Risk-based regulation

• Revalidation

• Complaints handling

• Doctors’ health &

mandatory reporting

2010 – before and after

Before

• Different state &

territory legislation

and schemes

After

• Health Practitioner

Regulation National

Law

• BUT - not a nation-

wide scheme for

performance, health

and conduct

The ‘national’ scheme

• Vic, SA, WA, Tas, ACT and NT – National Law

jurisdictions with professional boards taking the lead,

supported by AHPRA – complaint bodies play liaison

role and handle some matters

• NSW – co-regulatory – HCCC and professional councils

work co-operatively on matters

• QLD – co-regulatory – OHO looks after minor and

serious matters, professional boards the rest

AHPRA under the microscope

Why we keep reviewing it…

Why review and change?

• Overseas developments / learning

• Parliamentary inquiries

• Profession perspectives

• Public attention / concern

Review & change – parliamentary /

government inquiries

• 2011 – Senate inquiry – AHPRA health

practitioner registration

• 2013 - Queensland Parliament Inquiry

into the Health Ombudsman Bill

• 2014 - Victorian Parliament Inquiry into

AHPRA performance

• 2014 - Independent Review of the

National Registration and Accreditation

Scheme for health professionals

• 2015 - NSW Health review of the

National Law

• 2016 – Senate inquiry – medical

complaints process

• 2016 Qld Parliament Inquiry into the

performance of the Health

Ombudsman

• 2016 – chaperone review (report

imminent)

• 2017 – Senate inquiry – National

Law complaints mechanism

(underway)

• 2017 – COAG consultation on

National Law changes (underway)

• ? 2017 – QLD Parliament – AHPRA /

Medical Board performance

(foreshadowed)

Focus

• Public / profession

confidence / support for

system

• AHPRA / professional

board vs co-regulatory

approaches

• Balancing risk and

fairness

• Regulator interactions

• Mandatory reporting

• Complaints handling

process

• Vexatious complaints

Outcomes

• Mostly tweaking the system

• QLD opt out of national system – co-regulatory

• Treating practitioner exemption for mandatory reporting

– awaiting further research

• AHPRA / professional boards – ‘administrative’ evolution

and research

So why change now?

• Evolution, not revolution

• System maturing / time for comparison

• AHPRA / Medical Board drive

• Professional pressure

• ? Public interest

From reactive to proactive?

1. Risk-based regulation

Medical Board view –

what is ‘risk based regulation’?

• traditional view of regulator

– register the doctor at the start of their career

– intervene when they transgress

• more realistic model

– regulators committed to preventing harm, promoting

and defending standards of good practice

– seeking ongoing assurance that every doctor is

competent to practise safely and effectively

AHPRA regulatory principles

• primary consideration - protect the public

• protect the public through timely and necessary action

• use minimum regulatory force appropriate to manage

the risk and protect the public

• protect the public, not punish practitioners

• uphold professional standards and maintain public

confidence in professions

So what’s the difference?

Dealing with risk prospectively, not retrospectively

• Revalidation (more later…)

• Evolving use of immediate action?

• Chaperones

• Examination of broader issues raised by notifications?

Immediate action

• National Law – professional board

• NSW – professional council

• QLD – Health Ombudsman / professional board

• Consistencies?

• Different approaches?

• Evolution and harmonisation – AHPRA guidelines

• COAG review – broader public interest power?

Chaperones – independent review

• Utility and effectiveness

of protective chaperone

conditions

• Assessment and

monitoring processes

• Report imminent…

Broader issues examination

• Dealing with notifications in isolation to assessing

underlying causes

• Melbourne University research – characteristics, causes

and prediction – PRONE score, analysing quantitative

issues

• Moving from sanction to education?

• NSW approach?

• SA triage trial?

(Which may get a new name)

2. Revalidation

Revalidation – what is it?

Medical Board:

A process that supports

medical practitioners to:

• maintain and enhance

their professional skills

and knowledge

• remain fit to practise

medicine

Revalidation – where did it come from?

• Last 10 years – revalidation in the United Kingdom

• Also in New Zealand, parts of USA and Canada

• 2012 – Board begins revalidation ‘discussion’

• 2014-5 – revalidation research project

• 2015-6 – Expert Advisory Group (EAG) initial

consideration

Revalidation – where are we at?

• Mid 2016 – EAG initial

report

• Mid-late 2016 – public

and stakeholder

consultation

• Late 2016 – social

research

• Mid-2017 – final EAG

report

Revalidation – what is contemplated?

• strengthened CPD:

– maintaining and enhancing the performance of all doctors

practising in Australia

– through efficient, effective, contemporary, evidence-based

continuing professional development relevant to their scope

of practice

• proactive risk assessment:

– proactively identifying doctors at risk of poor performance and

those who are already performing poorly

– assessing their performance

– supporting remediation (when appropriate)

Strengthened CPD

• Currently – Board declarations and CPD programs

• CPD programs vary across context and bodies

• Some - not much change – existing multi-modal programs

• Others - significant change - primarily in one form and self-directed

• Key questions:

– who is responsible?

– where does the information go?

Proactive risk identification

• Strong risk factors?

– age (from 35 years, increasing into middle and older age)

– male

– number of prior complaints and time since last one

• Other risk factors?

– primary medical qualification from certain countries

– specialty

– lack of response to feedback

– unrecognised cognitive impairment

– isolation

– low levels of high quality CPD activities

– change in scope of practice

Revalidation controversies

• UK-style revalidation – ruled out

• Risks (of course)

• Tiered intervention – what does it look like? How does it

feel?

• Multi-source feedback

• Who is responsible?

• When is the regulator involved?

Improving process and outcomes

3. Complaints handling

Recurring themes

• Vexatious complaints

• Timeliness / timeframe parity

• Communication

• Timing and degree of clinical

input

• Consistency in process and

decisions

• Non-proportionate

responses

• Transparency

• Procedural fairness

• Adversarial

• Caution review / appeal

• Board / complaint body

stakeholder consultation

Changes afoot

• Changes to how AHPRA communicates and updates

• Publishing performance data, including timeframes

• Vexatious complaints research

• SA - AHPRA early triage pilot

• Vic, WA and NT - joint consideration process trial

• Investigator training

What could we see next?

• QLD to consider:

– a ‘joint consideration process’ between the Ombudsman and

AHPRA / Medical Board - in line with the NSW system

– whether more time needs to be given to respond to complaints

– ensuring appropriate clinical input when assessing complaints

– streamlining complaint processes

– stopping complaints being ‘split’ between different regulators

Since endorsed by AHPRA & Medical Board

What could we see next?

• Better triage processes, including vexatious complaints

• Focus on regulator skill sets and training

• Timeframe parity – from defined to reasonable and fair

• Caution appeal mechanisms

• Increasing clinical interaction / input

• Less caution, more counselling?

Changing the culture, removing the stigma

4. Doctors’ health

How widespread?

2013 Beyond Blue medical profession survey

• 12,252 doctors and 1,811 medical students

• Doctors - substantially higher rates of psychological distress

and attempted suicide compared to Australian population and

other Australian professionals

• Young doctors and female doctors - higher levels of general and

specific mental health problems and reported greater work stress

• Stigmatising attitudes about the performance of doctors with

mental health conditions persist

Recent initiatives

• AHPRA / Medical Board funding

• Existing state bodies taking over uncovered

jurisdictions

• Stakeholders working together

Doctors’ health support services

• Confidential counselling

• Referral

• Education

• Advocacy

• Stakeholder engagement

• MDO supports – professional

and peer

Mandatory reporting of impaired practitioners

National Law s140

• Practitioner places the public at risk of substantial

harm in their practice because of an impairment

AHPRA guide

• ‘Impairment’ - physical or mental impairment, disability,

condition or disorder detrimentally affecting capacity to

practise, or likely to do so

• ‘Substantial harm’ - considerable harm i.e. failure to

correctly or appropriately diagnose or treat because of

impairment

Mandatory reporting exceptions

• WA – treating practitioners

• QLD – treating practitioners if impairment not place the public at substantial

risk and is not professional misconduct

• Australia-wide –

– in MDO / insurer / legal context during legal proceedings or giving

advice

– RCA or similar bodies preventing information disclosure

– reasonably believes that someone else has already made a notification

• AHPRA notification guidelines - practice context relevant – if reporter

aware employer knows of impairment, and has put safeguards in place such

as monitoring and supervision, may reduce or prevent the risk of substantial

harm

Treating practitioner exception debates

• Many professional stakeholders seek expansion of WA

treating practitioner exemption nation-wide

• AMA NSW (2017) – “provisions such as mandatory

reporting are stopping doctors and students from

accessing care, or are making them fearful of the

consequences if they do require support”

• 2014 Snowball review – recommend introducing WA

exemption nationwide

• 2015 COAG – deferred pending further research

Developments

• Bismark & colleagues (MJA 2014 & 2016, BMJ 2016):

– treating practitioners unlikely to report practitioner patients

- < 10% by treating practitioners

– need education

– no reporting if practitioner engages in treatment and

reduces risk

– stakeholders work together to improve notification

experience

• ? part of upcoming COAG review

• ? time for change

What’s next?

• Consistency in regulator health processes?

• Culture change

• Education

• Support through workplaces and other bodies

• An integrated system?

Questions?