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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?