Avant Risk IQ factsheet:
Mandatory reporting
If you are concerned that a colleague may not be
practising safely and may be putting patients at
risk, deciding whether to report them is not easy. It
can be a cause of great stress and anxiety. Here, we
outline what your obligations are under the National
Law’s mandatory reporting provisions, that will
assist you to make a decision about whether you are
legally obliged to make a notification about another
health practitioner.
Who is required to make mandatory reports?
Under the Health Practitioner Regulation National Law (National
Law), health practitioners, employers and education providers
have an obligation to make a mandatory report to the Australian
Health Practitioner Regulation Agency (AHPRA) about another
health practitioner or a student in certain circumstances.
All health practitioners have an obligation to report another
health practitioner who is engaged in “notifiable conduct”
unless an exemption applies. There are 14 professions
covered under the National Law and therefore it is not only
mandatory to report notifiable conduct by practitioners
within your profession, but also within the other professions
under the National Law. The obligation to report includes
students who are impaired and are engaged in clinical
training as part of their course.
What is ‘notifiable conduct’?
You are required to notify AHPRA when you have a
“reasonable belief” that a practitioner has engaged in
‘notifiable conduct’ – that is, the practitioner has:
▶▶ practised the profession whilst intoxicated by alcohol
or drugs
▶▶ engaged in sexual misconduct in connection with the
practice of the practitioner’s profession
▶▶ placed the public at risk of substantial harm because the
practitioner has an impairment
▶▶ placed the public at risk of harm because the practitioner
has practised the profession in a way that constitutes a
significant departure from accepted professional standards.
What is a ‘reasonable belief’?
The threshold for mandatory reporting is high. Before making
a mandatory notification you must form a ‘reasonable belief’
that the practitioner’s conduct falls within the ambit of
notifiable conduct.
A ‘reasonable belief’ should, as far as possible, be based
on actual known events rather than anecdotal accounts.
Speculation, gossip, rumours or innuendo should not be
relied on to form a ‘reasonable belief’.
What happens if a doctor is practising whilst
intoxicated by alcohol or drugs?
The National Law does not define intoxication so the word
is given its ordinary meaning. The relevant consideration is
whether the practitioner’s ability to practise their profession is
impaired or affected due to intoxication by drugs or alcohol.
Intoxication outside of work is not notifiable unless you form
a ‘reasonable belief’ that the practitioner has gone on to
practise their profession while still intoxicated.
What are my responsibilities if I know a practitioner
is engaging in sexual misconduct?
You have a mandatory obligation to report a health practitioner
who has engaged in sexual misconduct with a patient
under their care or who is connected to their practice. This
obligation applies whether the patient has consented or not
and irrespective of whether the patient initiated the sexual
relationship. Sexual activity with a former patient or with
someone who is closely related to a current patient (this includes
the parent of a patient) may constitute sexual misconduct.
What constitutes sexual misconduct?
The Medical Board of Australia’s Sexual Boundary Guidelines
(the Guidelines) defines sexual misconduct as sexual remarks,
touching patients in a sexual way, engaging in sexual behaviour
in front of a patient and sexual harassment.
What do I need to be aware of if I suspect one of my
colleagues might be impaired?
Under the National Law “impairment” is defined broadly. The
definition includes a physical or mental impairment, disability,
disorder as well as substance abuse/dependency that affects
or impairs the practitioner’s ability to practise their profession
and places the public at risk of substantial harm.
In all states and territories except Western Australia, the mandatory reporting obligation applies to patients who are health
practitioners (and students) registered under the National Law.
Western Australia is the only State to exempt health practitioners
who provide healthcare to other health practitioners.
Although the exemption applies in Western Australia, health
practitioners treating an impaired practitioner can make a
voluntary notification if they form a ‘reasonable belief’ that
the impairment could place the public at risk of harm.
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What situations are considered a significant
departure from accepted professional standards?
For there to be notifiable conduct in this category, there
must be a ‘significant departure’ from accepted standards of
practice which includes:
▶▶ a risk of harm to patients
▶▶ a “significant” departure is something best judged by
a practitioner from the same area of speciality. The
departure from accepted standards should be serious
and place the public at risk of harm.
Are there exceptions to the mandatory
reporting obligation?
There are limited exceptions under the National Law. A health
practitioner does not have to make a mandatory report
when they:
▶▶ know or reasonably believe that the notifiable conduct
has already been reported
▶▶ are providing advice about notifiable conduct for the
purpose of legal proceedings or the preparation of
legal advice
▶▶ work for an insurer that provides professional indemnity
insurance, and become aware of notifiable conduct as
a result of legal proceedings or the provision of legal
advice arising from the insurance policy
▶▶ are also a legal practitioner, and are providing legal
services to the health practitioner who has allegedly
engaged in notifiable conduct for legal proceedings or
legal advice
▶▶ are members of a quality assurance committee, health
professional council or other approved health body,
and are prohibited by legislation from disclosing the
notifiable conduct.
In Western Australia, you are exempt from the mandatory
obligation to report health practitioners who consult you. In
Western Australia, treating practitioners can make voluntary
notifications if they have concerns about their practitioner/
patient’s ability to practise safely.
Am I protected from liability if I make a
mandatory notification?
Practitioners are protected from liability and defamation
claims when reporting another practitioner, as long as
the report is made in good faith. The final outcome of a
complaint does not matter. The National Law provides that:
▶▶ a person is not liable, civilly or criminally or under
administrative process for giving information
▶▶ the making of a notification or giving information
does not constitute a breach of professional etiquette
or ethics, or a departure from accepted standards of
professional conduct
▶▶ no liability for defamation is incurred by the person because
of the making of the notification or giving information
▶▶ protection extends to a person who, in good faith, provided
the person with any information on the basis of which the
notification was made or the information was given
▶▶ protection also extends to cover a person who, in good
faith, was otherwise concerned in the making of the
notification or giving information.
In New South Wales, a mandatory report is deemed to be a
complaint and as such is protected under the Health Care
Complaints Act. Under that Act, the person making the
complaint is exempt from liability and defamation claims,
provided that the report is made in good faith.
AHPRA’s Guidelines for mandatory notifications confirm
that practitioners who make notifications that are frivolous,
vexatious or not in good faith in future may be subject to
disciplinary action.
What should my first steps be if I have concerns
about a colleague?
If you have concerns about a colleague, we recommend that
you carry out some research and obtain advice from your
colleagues (confidentially), your college or professional body,
or Avant so that you can be satisfied that the threshold is met
and a mandatory report is required.
A difference of opinion is not a reason to make a mandatory
notification, and a notification arising from a mere difference
of opinion or motivated by a desire for commercial advantage
may be considered to have been made in bad faith.
See the AHPRA Guidelines for Mandatory Notifications for
more information http://www.medicalboard.gov.au/CodesGuidelines-Policies/Guidelines-for-mandatory-notifications.aspx
For more advice, call Avant’s Medico-legal Advisory
Service on 1800 128 268.
Visit avant.org.au/risk/iq for Avant Risk IQ resources
including webinars, eLearning courses, case studies
and checklists.
This publication is not comprehensive and does not constitute legal or medical advice. You should seek legal or other professional advice before relying on any content, and practice
proper clinical decision making with regard to the individual circumstances. Persons implementing any recommendations contained in this publication must exercise their own independent skill or judgment or seek appropriate professional advice relevant to their own particular practice. Compliance with any recommendations will not in any way guarantee
discharge of the duty of care owed to patients and others coming into contact with the health professional or practice. Avant is not responsible to you or anyone else for any loss
suffered in connection with the use of this information. Information is only current at the date initially published. © Avant Mutual Group Limited 2015. 3376 07/15(0359)
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