The information below is designed to give answers to the most common questions from practitioners in relation to mandatory reporting.
Requirements under the National Registration Scheme from July 2010
From 1 July 2010, the National Registration Scheme requires mandatory reporting by all registered health practitioners and their employers. Since July 2012, that includes practitioners of Aboriginal and Torres Strait Islander health, Chinese medicine, medical radiation and occupational therapy
What must be reported?
The National Scheme requires registered health practitioners, employers and education providers to report when they 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 in the practitioner’s practice of the profession because the practitioner has an impairment
- placed the public at risk of harm because the practitioner has practised in a way that constitutes a significant departure from accepted professional standards.
Who must report and to whom?
Registered health practitioners, as well as employers of health practitioners and education providers, are required to report notifiable conduct to the National Agency.
Where the notification relates to a practitioner in NSW, the National Agency will forward it to the relevant NSW Council. In NSW, according to the Health Practitioner Regulation National Law (NSW) [National Law] mandatory notifications are deemed to be a complaint. That means that the Council will forward the notification to the Health Care Complaints Commission to deal with it as a complaint. Please note that making a complaint to the Commission directly does not discharge the obligation to report notifiable conduct under the National Law. However, you may wish to notify both AHPRA and the Commission about notifiable conduct to avoid any delays in before the Commission starts assessing the complaint.
For practitioners it is important to know that it is not only mandatory to report notifiable conduct by registered health practitioners in the same profession, but also to report any notifiable conduct observed in any other registered health practitioner e.g. a nurse should report a medical practitioner and vice versa.
Notifications can be made verbally or in writing.
What is a reasonable belief?
A difficult question may arise as to whether there is a ‘reasonable belief’ that a practitioner has engaged in notifiable conduct. A reasonable belief is more than a mere suspicion; it may involve observing the conduct, or having direct knowledge about it. In the case of employers and education providers, it may also be that a formal complaint about the conduct has been made. Rumours, hearsay and speculation do not form a reasonable belief.
In difficult cases, it might be a good idea to have a confidential discussion about a hypothetical situation similar to the one you are facing with a trusted colleague.
The National Board’s guidelines for mandatory reporting give further guidance on what is considered a reasonable belief.
Are there any exceptions?
A health practitioner does not have to make a mandatory report where 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 a member of a quality assurance committee, health professional council or other approved health body, and are prohibited by legislation from disclosing the notifiable conduct.
What happens if I do not report?
If a health practitioner fails to report, it is not an offence, but might result in the Council or Health Care Complaints Commission pursuing disciplinary action. A failure to report may become the subject of a complaint that could be investigated and, in a serious case, lead to the practitioner being prosecuted for unsatisfactory professional conduct.
If the employer of a health practitioner fails to report, the National Agency must give a written report to the Minister of the relevant jurisdiction. The Minister must then notify the relevant health complaints body or any other appropriate body.
If an education provider fails to report, the relevant National Board must publish details of this failure on its website.
Am I protected from liability when reporting?
Practitioners should be aware that they are protected from liability and defamation claims when reporting conduct of another practitioner 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.
- The 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.
- The protection also extends to cover a person who, in good faith, was otherwise concerned in the making of the notification or giving information.
In addition, in NSW mandatory reports are deemed to be a complaint and as such are protected under the Health Care Complaints Act that provides that the person making the complaint is exempt from liability and defamation claims, provided that it is made in good faith.
What happens after I make a notification to the National Agency?
When a notification is received by the National Agency and it relates to a practitioner in NSW, the National Agency will forward it to the relevant NSW Council. The Council will then forward the notification as a formal complaint about the reported conduct to the Health Care Complaints Commission. The Commission must assess all complaints it receives to decide about the most appropriate way to deal with the issues raised in the complaint.
Will the practitioner who is reported be notified?
Where notifiable conduct of a practitioner practising in NSW has been reported, a complaint to the Commission is made as a result. The practitioner whose conduct has been reported will usually be notified in writing about the nature of the complaint. However, if the Commission believes that notifying the practitioner could prejudice an investigation or place a person at risk of intimidation or harassment, it may not notify the practitioner whose conduct is in question
Can a practitioner request that their notification not be provided to the reported practitioner?
No, it is at the discretion of the Commission to withhold a notification/complaint, for the reasons stated above.
Can I remain anonymous?
Mandatory reporting requires you to report to the National Agency. You cannot remain anonymous. Remaining anonymous would also result in problems when you are asked to show that you have fulfilled your mandatory reporting obligations.
What actions can be taken in response to a notification?
In NSW, there are several options for the Commission in dealing with a mandatory notification / complaint that it receives. The Health Care Complaints Commission will assess the complaint and has to consult with the relevant health professional Council before making a decision.
The Commission may then take no further action, try to resolve the matter or investigate the complaint. If the Commission decides to investigate, it may result in the prosecution of the reported practitioner.
The Commission may also refer the complaint to the relevant health professional Council to take action. The Council can take immediate temporary action to protect the public health and safety. This may include suspending the reported practitioner or imposing conditions. If the Council decides to take immediate action, it must notify the affected practitioner.
The Council may refer the practitioner to its impairment and/or performance assessment programs. The Council may also decide to take no further action.
How can I find out more?
The Commission offers information sessions about mandatory reporting and the role of the Commission. To arrange a presentation, please use our online presentation booking form.