Healthcare professionals, have you been “regulated”?

Our guest contributor, Dr Anchita Karmaker, brings a wealth of skill and knowledge bridging the great divide between legal and medical professions. Having worked for 11 years as a medical practitoner in Australia, she is currently completing her legal qualifications, with the hope to specialise in regulatory and administrative/constitutional legal issues at Susan Moriarty & Associates. 

5 reasons not to fear the regulators

Once you finish all those years of grueling study with sleepless nights, finally you get to call yourself a healthcare professional. Whether you are a Doctor, a Dentist, a Physiotherapist, or a Nurse, there is no doubt that you have sacrificed some portion of your life and brain cells to hold the privilege of becoming a gatekeeper of life and death. Going through university, you are never really taught about how the so-called registration process occurs and what happens to you once you graduate. Do you just automatically become part of this secret noble club where maybe you hold a membership ID card that you can flash, declaring your stature? What you get in your dreams and what you get in reality is painfully different, and as always, ignorance and the unknown is what breeds fear, and poor decision making. In this short editorial piece, I would like to share with you all some thoughts and facts about what it means to be regulated as a healthcare professional in Australia and where there may be some gaps that need some serious reconstruction and reform.

There are currently (approx) 700,000 healthcare professionals registered in Australia holding various titles. They are all ‘registered’ under AHPRA, short for the Australian Health Practitioner Regulation Agency. This organization is not a government organization. It is not a delegated, statutory power of the Health Minister as such. It is not a company. It is not a teaching or accreditation body and or a college. It is simply an agency that, as one of its functions, helps the various Health Practitioner Boards investigate potential risk to the public. In other words, 700,000 healthcare professionals pay a fee to this agency to make sure complaints by the public are looked into, in order to keep patients safe.

The Registration process also allows practitioners to hold a prescriber number and a provider number.  Without registration as a medical practitioner (or in some other health profession that would permit it) a person is not permitted to prescribe medications or claim from Medicare for medical services.

It is all about accountability and protection for the public against “bad” practitioners.

When did all this happen and who oversees what AHPRA does?

In 2008, the Council of Australian Government (COAG) decided to establish a single National Registration and Accreditation Scheme (National Scheme) for registered health practitioners. The COAG Health Council has ultimate oversight of the National Scheme. AHPRA is simply an agency that supports the National Boards (i.e. Medical Board of Australia, Dental Board of Australia, Pharmacy Board of Australia) to implement the National Scheme.

Why so serious?

That all makes sense, right? So why do so many practitioners fear and stress over the dreaded AHPRA complaint? Being accountable when holding such a title as a “Doctor” or a “Nurse” surely comes with a multitude of responsibilities and therefore, as healthcare professionals we are bred to be accountable and transparent with our work. Then why the fear? Investigation of complaints should be welcomed!

The truth is far from this. Regardless of the nature of the mistake, omission, or even criminal conduct, in a democratic society, one would think that the interrogation process is prevalent and necessary on the proviso that is it conducted fairly following the principle of due process/natural justice. However, case after case have come to light illustrating that this is not so for many who are subjected to this onerous process. It is often characterized as a never-ending investigation, onerous, with potential for long-standing conditions on your registration or slow, painful further tribunal/legal proceedings.

A classic example of a potential breach in natural justice is the fact that when a medical practitioner is referred to AHPRA, they have a panel of medical practitioners who are employed and paid by the agency to review and provide advice to other AHPRA staff who, in turn, make recommendations to the relevant board. The practitioner under scrutiny may never know that this has occurred, who the medical practitioner who reviewed their case was, what the person’s qualifications were, or whether there’s some reason why that person may not have brought a fair and impartial mind to the case. The Board may not even know this. This is one example of a flawed system that needs urgent attention from the finest minds of both the healthcare industry and the legal industry.

Knowing all this, and hearing all the nasty stories of how AHPRA or other regulatory bodies have allegedly destroyed practitioner’s lives, is fear and quasi-legal arguments and or fierce unorganized revolt the answer?  Here are 5 reasons I think it should not be a fear and hate-driven process:

  1. AHPRA – they are all normal people employed to do their jobs according to what training and standards they have been given to work with. They are not ogres or gods. They are simply doing their jobs. They are not Goliath. In general, they think they’re doing the right thing.
  1. Being reported to AHPRA should not be the trigger to get a mental health condition. Nor should a potential referral to AHPRA be the reason not to seek mental health treatment and support. If you have mental health issues, seek help, and get it under control. Although limited, there is case law emerging which supports this proposition. Better to be honest and upfront about your impairment rather than causing harm and then being interrogated.
  1. Let’s make a small change. If you are not happy with decisions made against you for whatever reason it may be, use the avenues of appeals and judicial review. If you do not put your hand up and protest, nothing will change, and nothing can be argued to better the system.
  1. We are part of the system. To make a change, yelling and shouting in an unorganized manner only cements the suspicion of our interrogators that we are slightly crazy. As practitioners we get people out of life and death scenarios, keeping our cool and collected face, concentrating on our craft. Why not apply these skills? We can put our minds together, identify issues such as lack of procedural fairness or lack of peer-reviewed, and agreed clinical standards, work on these issues and present a proposal as a collective to the COAG? Not as part of some politically or financially driven union or body, but as independent healthcare professionals with the sole agenda of providing a better and sustainable healthcare system for us all.
  1. Understand that there are no shortcuts. Just like we cannot be ‘half’ pregnant, you cannot complain and wish for change just by reiterating sad and emotional anecdotes. One must take action. If we want to change as a profession, we must gain the knowledge base and expertise plus the willingness to take risks with all our hearts. A Doctor cannot pretend to be a lawyer and visa versa. Perhaps, the study of law and understanding regulatory issues may have to be a compulsory part of all healthcare-related degrees so that fatal errors and holes in the system can be identified and rectified.

What’s the catch?

Although this is a NATIONAL scheme, applicable to all practitioners regardless of which state they are in, the actual NATIONAL LAW itself is a state and territory-based legislation and it is not a Commonwealth law.

Therefore, arguments regarding section 51 of the Constitution will not succeed – AHPRA/Boards are not created under Commonwealth law!

Others have thought of challenges based on section 75(iv) but recent case law and analysis of this may have made this difficult too (see below for example case law).

What to do now?

Things are changing and things will continue to change. If you are interested, read cases such as:

Craig v The Medical Board of South Australia [2001]SASC 169 this is not a recent case but it is regularly cited and gives details around what the Board should/shouldn’t do when regulating a profession.

DYB v Medical Board of Australia [2019]

HCA Burns v Corbett

If you are committed to change and would like to see this happen, there are two things you can do as a healthcare professional. One, study law and become a Lawyer. Two, support those who have already done this through fundraising and peer support groups.

Once we know what the problems are we will be able to find a solution. Surely it can’t be harder then restarting a heart that has stopped beating. Together we can create change for a fair and better tomorrow. 

We are collecting data regarding need for reform. Please answer a short survey if you are a healthcare professional: Survey Monkey

Disclaimer: this article is written as an editorial /opinion and it is not a legal advice. I am not a lawyer.

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