Reportable Misconduct: Guidelines for Practitioners

Reportable misconduct under the Medical Practice Act
Guidelines for practitioners

August 2008

1. BACKGROUND

Section 71A of the Medical Practice Act introduces a new concept of `reportable misconduct', placing an obligation on doctors to report certain types of misconduct to the Medical Board. This requirement will come into force on 1 October 2008.

The legislation is quoted in full at the end of the document.

In its July 2008 newsletter, the Board foreshadowed the publication of some guidance to practitioners in relation to these provisions. These guidelines have been developed in consultation with the AMA (NSW) Limited, NSW Health and medical defence organisations. Please note that they are not a substitute for the legislation, and each instance of possible reportable misconduct needs to be considered on its merits. If you are concerned that you may have obligations under the reportable misconduct provisions, you should be seeking advice from your defence organisation or other appropriate body or person.

2. GENERAL POINTS

The reportable misconduct provisions reflect the existing statutory Code of Professional Conduct: Good Medical Practice. They are not in any way inconsistent with the existing professional obligations, though the obligation to report certain categories of particularly serious misconduct is now mandatory.

The provisions apply to all registered medical practitioners regardless of the context in which the reasonable belief is formed.

The obligation is on any registered medical practitioner who believes or ought reasonably to believe that reportable misconduct has been committed to report the conduct to the Board as soon as practicable.

A reasonable belief requires a stronger level of knowledge than a mere suspicion. For example, you should not be reporting mere speculation, rumours, gossip or innuendo. A report should be based on personal knowledge of facts or circumstances that are reasonably trustworthy and that would justify a person of average caution, acting in good faith, to believe that reportable misconduct has occurred. You do not need conclusive proof that reportable misconduct has occurred. Your own professional background, experience and expertise will also be relevant in forming a reasonable belief.

As noted above, the Code of Professional Conduct already reflects the principles set out in the new provisions. In addition, medical practitioners working in the NSW Health public sector are already subject to a range of requirements relating to incident reporting, managing complaints or concerns about clinicians, and performance management. The reportable misconduct provisions complement rather than substitute for these requirements.


3. THREE CATEGORIES OF REPORTABLE MISCONDUCT

The reporting obligations are not general, but focus on three areas of serious misconduct. In relation to the three specific categories of reportable misconduct, the following is noted:

3.1 ... practises medicine whilst intoxicated by drugs (whether lawfully or unlawfully administered) or alcohol,

Reporting is only required if the practitioner is believed to be practising medicine while intoxicated. There is no legal obligation under these provisions to report a practitioner who is intoxicated while not practising medicine.

Whilst `intoxicated' is not defined in the legislation, the Board considers that a practitioner is likely to be intoxicated where his or her capacity to exercise reasonable care and skill in the practice of medicine is impaired or affected as a result of being under the influence of drugs or alcohol.

Practitioners will continue to have a broader professional obligation to refer a colleague whose use of drugs or alcohol, whilst short of being intoxicated at work, may be a threat to patients as a result of its impact on, for example, the practitioner's health or behaviour. The Board may assess and manage such practitioners as part of its Impaired Registrants Program. The Code of Professional Conduct already states in this regard:

In order to protect your patients and the public, you should:

  • be vigilant in identifying doctors or other colleagues whose health, conduct, behaviour or performance may be a threat to the public;
  • do your best to find out the facts, then if necessary, notify an appropriate person such as the hospital chief executive or the Medical Board. Your comments about colleagues must be honest. If you are not sure what to do, ask an experienced colleague or contact the Medical Board or your defence organisation for advice. The safety of patients must come first at all times; and
  • report adverse events which reflect on the professional performance or conduct of colleagues to a hospital Chief Executive or Medical Board.
3.2 ... practises medicine in a manner that constitutes a flagrant departure from accepted standards of professional practice or competence and risks harm to some other person,

Dictionary definitions of `flagrant' include:

`glaring, notorious, scandalous' (Macquarie Dictionary);
and
`conspicuously offensive; especially: so obviously inconsistent with what is right or proper as to appear to be a flouting of law or morality' (Merriam-Webster On-Line Dictionary).

The term carries with it a connotation of conspicuous or gross departure, with an element of a wilful or reckless flouting of acceptable standards.

The Board considers a flagrant departure from accepted standards involves a very high degree of departure from such standards. Conduct which is merely careless or negligent (in the sense that it fails to meet the standards of care owed to patients) will generally not be flagrant. Whilst it is possible for reasonable practitioners to disagree about whether a particular practice is or is not negligent, a flagrant departure is likely to be one which is both serious and obvious to any reasonable practitioner. This is particularly likely to be the case where another practitioner engages in reckless, unethical, wilful or criminal behaviour.

As previously stated, if in doubt about whether something involves `a flagrant departure from accepted standards', seek advice.

The term `flagrant departure from accepted standards of professional practice or competence' encompasses not only clinical skills, but would also include a flagrant departure from accepted standards of professional behaviour.

The reportable misconduct must pose a risk of harm to some other person as well as constituting a flagrant departure from accepted standards of professional practice or competence, before mandatory reporting is required.

3.3 ... engages in sexual misconduct in connection with the practice of medicine.

The misconduct to be reported is linked to the practice of medicine. Under current Board policy, it is an absolute rule that a medical practitioner who engages in sexual activity with a current patient is guilty of professional misconduct. Engaging in sexual activity with a patient following the termination of the doctor/patient relationship may also amount to professional misconduct, depending on the circumstances of each case. For more information refer to the Board's policy on sexual misconduct.

4. OTHER LEGAL OBLIGATIONS

In some circumstances, medical practitioners will be under specific legal obligations not to disclose information. In particular practitioners who are members of an approved quality assurance committee or root cause analysis team pursuant to the Health Administration Act must not disclose any information acquired in their capacity as a member, except in certain specified circumstances. It is an offence to do so. Accordingly, where a practitioner forms a belief or reasonable belief that reportable misconduct has occurred based on information received in their capacity as a member of an approved QA committee or RCA team, they are not required to report the matter to the Board under these new provisions. Existing processes for bringing these matters to attention should be followed.

Medical practitioners who are members of non-approved quality assurance or peer review committees are not subject to statutory non-disclosure requirements, and so will be required to report to the Medical Board where they believe or ought reasonably to believe there has been reportable misconduct by another practitioner.

If you have any concerns as to whether you are obliged to notify the Medical Board of reportable misconduct, or need legal advice as to whether the conduct itself is reportable, contact your defence organisation or AMA. Legal advice provided to you will remain confidential.

5. LEGISLATION

Section 71A provides as follows:

71A Reportable misconduct
(1) A registered medical practitioner commits reportable misconduct in the following circumstances:
(a) if he or she practises medicine while intoxicated by drugs (whether lawfully or unlawfully administered) or alcohol,
(b) if he or she practises medicine in a manner that constitutes a flagrant departure from accepted standards of professional practice or competence and risks harm to some other person,
(c) if he or she engages in sexual misconduct in connection with the practice of medicine.
(2) A registered medical practitioner who believes, or ought reasonably to believe, that some other registered medical practitioner has committed reportable misconduct must, as soon as practicable, report the conduct to the Board.
Note. Pursuant to sections 36 (1) (b) and 37, failure to comply with this section will constitute either unsatisfactory professional conduct or professional misconduct.

(3) A report under this section:

(a) is to be made and dealt with in the same way as a complaint, and

(b) is taken to be a complaint, both for the purposes of this Part and for the purposes of sections 96 and 98 of the Health Care Complaints Act 1993.