When a practitioner finds themselves being investigated by AHPRA, it is usually advisable for them to provide a frank and forthright response. But in the current climate, is this still the best advice?
What is AHPRA’s role?
AHPRA’s function is to administer the National Law, which aims to protect the public by ensuring that only health practitioners who are suitably trained and qualified to practice in a competent and ethical manner are registered.1 The function of the Courts, on the other hand, is to maintain the rule of law.
Behrens v Herlihy: New concerns for medical practitioners
The recent decision of the New South Wales Supreme Court in Behrens v Herlihy2 has raised some serious issues in relation to disclosure of information and documents during AHPRA investigations. The case is not yet on caselaw but is detailed by Bill Madden on his medical health law blog.3
The facts: In Behrens, the plaintiff issued a subpoena on the Medical Council of NSW for the production of documents submitted by the medical practitioner (defendant) in response to a mandatory notification.
The issue: The issue before the Court was whether there was a legitimate purpose for the documents, not whether the documents were “protected” by the National Law. Under the National Law, protected information4 must not be disclosed unless, relevantly, the disclosure is required or permitted by law.5
This case raises real concerns for medical practitioners because:
- the defence under the National Law was not raised by the medical practitioner (though there may be good reason for this, that is unknown in the absence of the published judgment); and
- notwithstanding this, the plaintiff sought to avail itself of this information for use in a civil proceeding.
To date medical practitioners have generally been able to assume that any full and frank statements made to AHPRA in response to a notification will be kept confidential. Full and frank disclosure is to be encouraged if:
- AHPRA is to administer the National Law with a view to protecting the public; and
- medical practitioners are to be encouraged to show insight, reflect and learn from conduct which might have fallen short of the expected standard, so that they can continue to provide safe care and treatment in the community.How does Behrens sit with other cases?In Chinese Medicine Board of Australia v Ah Choo Teo6 the Victorian Supreme Court held that whilst there is considerable public interest in consumer protection regarding regulation of health practitioners – and that public interest could favour disclosure – in this case, public interest favoured maintaining confidentially over information provided to AHPRA.The facts: In that case, Ms Teo, a psychologist, was suspended by the Chinese Medicine Board of Australia following a complaint by a patient she treated with injections of pig intestine cells for ulcerative colitis. She later sued Pacific Media for defamation following an article it published in Mandarin Chinese following VCAT’s determination. Pacific Media, which asserted several positive defences to the claim including contextual truth and fair comment/honest opinion, issued a subpoena for material on the VCAT file, including a statement provided by Ms Teo to the Board.The decision: The Supreme Court held that disclosure of the documents could prejudice Ms Teo by exposing her to cross examination on a different and more extensive basis than on the face of the defamation claim alone.This is our concern. Will material that a medical practitioner has divulged in good faith to cooperate with AHPRA in its protective function, potentially be disclosed, thereby prejudicing him or her in a different jurisdiction, and if yes, is this reasonable?In the matter of Poke: Inquest into the Death of Poke, Delta Diawo7 raises such an issue in the coronial jurisdiction.
The facts: Ms Poke died on 18 December 2011, the cause of death being identified as global cerebral ischaemia in a setting of anaesthesia following a late term termination.8 Poke involved an application by interested parties (two medical practitioners) for the Coroner to recuse herself on the basis that she had obtained, and reviewed, documents from AHPRA pertaining to its investigation of the practitioners in relation to the death. The documents included statements provided by the practitioners in response to an immediate action notification.
The decision: While the Coroner determined that the documents would not form part of the inquest brief, and agreed that there was a public interest in AHPRA being able to discharge its statutory functions without medical practitioners fearing that statements they make in the
context of an AHPRA investigation may be produced to a Coroner later, the medical practitioners’ concern was that the Coroner had already read and considered the documents.9
Just last week, the WA State Administrative Tribunal declined an FOI application by a patient for a copy of the response provided by a psychologist to the complaint issued (by the patient) about him10. In doing so, the Tribunal found that there is a strong onus on AHPRA to provide protection against the release of personal information that is held in AHPRA’s records and that the proper and efficient conduct of the operations of [AHPRA] are assisted [when] information provided to it by a registered health practitioner under compulsion is protected information and its disclosure is prohibited…the prospects of a forthright and frank answer are considerably enhanced in circumstances where the practitioner has confidence that the information provided is protected information.
The Senate inquiry into the Medical Complaints process in Australia identified that there are possible systemic problems with the medical complaints process…related to both the administration of the process, and the regulatory framework that governs it. 11 The Committee said openly that:
A world-class health system requires an open, transparent and rigorous process for patients and others to raise concerns with the healthcare they receive, and the undermining of the process for vexatious purposes is unacceptable.
What does all this mean for medical practitioners?
While it is open to plaintiffs in medical defence claims to use all tools available to them to collate evidence to advance their case, there is a clear tension between this and the public desire for a transparent and effective system regulating the professional conduct of medical practitioners. The above decisions suggest that medical practitioners ought to perhaps approach full and frank disclosures to AHPRA with some caution where there is a likelihood that the subject matter of the notification may also lead to a claim in another forum.
If you would like any further information regarding this update, please contact:
M: 0405 807 135
- Section 3(2)(a) Health Practitioner Regulation National Law Act 2009
- NSWSC 22 June 2017
- Protected information means information that comes to a person’s knowledge in the course of, or because of, the person exercising functions under the National Law (section 214).
- Section 216(2)(c)
-  VSC 626
- Ruling on Application by interested parties for the Coroner to recuse herself (14 August 2014)
- (COR) 2011 4783  Vic CorC 57 (26 May 2016)
- The Coroner did not recuse herself, being persuaded by O’Sullivan v Medical Tribunal of New South Wales  NSWCA 374 (20 November 2009) where Basten JA opined that juridical officers are able to put out of their minds irrelevant or prejudicial material which is excluded.
- Spragg v Australian Health Practitioner Regulation Agency  WASAT 103
- Community Affairs Reference Committee – Medical Complaints process in Australia November 2016 Para 4.7
This publication is general in nature and is not comprehensive or constitute legal or medical advice. You should seek legal, medical or other professional advice before relying on any content, and practice proper clinical decision making with regard to 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. Tego Insurance Pty Ltd is not responsible to you or anyone else for any loss suffered in connection with the use of this information.
Eric is the CEO of Tego, an insurance agency offering specialist indemnity insurance solutions for the healthcare and life sciences sectors. His qualifications include a bachelor’s degree in business and law, a master’s degree from UNSW in law and management and an MBA from the AGSM.