About=20 us News = and=20 updates Registration Che= ck a=20 doctor's registration Doctors'=20 Performance, Conduct & Health Resources Publication= s Policies = Legislation<= /A>=20

=20 =20 =20

Reportable Misconduct: Guidelines for Practitioners

Home=20 + Resources=20 + Policies = =20 + Reportable=20 Misconduct: Guidelines for Practitioners

Reportable misconduct under the Medical Practice=20 Act
Guidelines for practitioners
August 2008

1.=20 BACKGROUND

Section 71A of the Medical Practice Act introduces a new concept of=20 `reportable misconduct', placing an obligation on doctors to report = certain=20 types of misconduct to the Medical Board. This requirement will come = into force=20 on 1 October 2008.

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

In = its July=20 2008 newsletter, the Board foreshadowed the publication of some guidance = to=20 practitioners in relation to these provisions. These guidelines have = been=20 developed in consultation with the AMA (NSW) Limited, NSW Health and = medical=20 defence organisations. Please note that they are not a substitute for = the=20 legislation, and each instance of possible reportable misconduct needs = to be=20 considered on its merits. If you are concerned that you may have = obligations=20 under the reportable misconduct provisions, you should be seeking advice = from=20 your defence organisation or other appropriate body or = person.

2.=20 GENERAL POINTS

The reportable misconduct provisions reflect the existing statutory = Code=20 of Professional Conduct: Good Medical Practice. They are not in any = way=20 inconsistent with the existing professional obligations, though the = obligation=20 to report certain categories of particularly serious misconduct is now=20 mandatory.

The provisions apply to all registered medical practitioners = regardless of=20 the context in which the reasonable belief is formed.

The obligation = is on=20 any registered medical practitioner who believes or ought reasonably to = believe=20 that reportable misconduct has been committed to report the conduct to = the Board=20 as soon as practicable.

A reasonable belief requires a stronger level of knowledge than a = mere=20 suspicion. For example, you should not be reporting mere speculation, = rumours,=20 gossip or innuendo. A report should be based on personal knowledge of = facts or=20 circumstances that are reasonably trustworthy and that would justify a = person of=20 average caution, acting in good faith, to believe that reportable = misconduct has=20 occurred. You do not need conclusive proof that reportable misconduct = has=20 occurred. Your own professional background, experience and expertise = will also=20 be relevant in forming a reasonable belief.

As noted above, the Code of Professional Conduct already = reflects the=20 principles set out in the new provisions. In addition, medical = practitioners=20 working in the NSW Health public sector are already subject to a range = of=20 requirements relating to incident reporting, managing complaints or = concerns=20 about clinicians, and performance management. The reportable misconduct=20 provisions complement rather than substitute for these=20 requirements.

3. THREE CATEGORIES OF REPORTABLE = MISCONDUCT

The reporting obligations are not general, but focus on three areas = of=20 serious misconduct. In relation to the three specific categories of = reportable=20 misconduct, the following is noted:

3.1 ... practises medicine whilst intoxicated by drugs (whether = lawfully or=20 unlawfully administered) or alcohol,

Reporting is only required if the practitioner is believed to be = practising=20 medicine while intoxicated. There is no legal obligation under these = provisions=20 to report a practitioner who is intoxicated while not practising = medicine.

Whilst `intoxicated' is not defined in the legislation, the Board = considers=20 that a practitioner is likely to be intoxicated where his or her = capacity to=20 exercise reasonable care and skill in the practice of medicine is = impaired or=20 affected as a result of being under the influence of drugs or=20 alcohol.

Practitioners will continue to have a broader professional=20 obligation to refer a colleague whose use of drugs or alcohol, whilst = short of=20 being intoxicated at work, may be a threat to patients as a result of = its impact=20 on, for example, the practitioner's health or behaviour. The Board may = assess=20 and manage such practitioners as part of its Impaired Registrants = Program. The=20 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,=20 conduct, behaviour or performance may be a threat to the public;
do your best to find out the facts, then if necessary, notify = an=20 appropriate person such as the hospital chief executive or the Medical = Board.=20 Your comments about colleagues must be honest. If you are not sure = what to do,=20 ask an experienced colleague or contact the Medical Board or your = defence=20 organisation for advice. The safety of patients must come first at all = times;=20 and
report adverse events which reflect on the professional = performance or=20 conduct of colleagues to a hospital Chief Executive or Medical=20 Board.

3.2 ... practises medicine in a manner that=20 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=20 Dictionary);
and
`conspicuously offensive; especially: so = obviously=20 inconsistent with what is right or proper as to appear to be a = flouting of law=20 or morality' (Merriam-Webster On-Line Dictionary).

The term carries with it a connotation of conspicuous or gross = departure,=20 with an element of a wilful or reckless flouting of acceptable = standards.

The Board considers a flagrant departure from accepted standards = involves a=20 very high degree of departure from such standards. Conduct which is = merely=20 careless or negligent (in the sense that it fails to meet the standards = of care=20 owed to patients) will generally not be flagrant. Whilst it is possible = for=20 reasonable practitioners to disagree about whether a particular practice = is or=20 is not negligent, a flagrant departure is likely to be one which is both = serious=20 and obvious to any reasonable practitioner. This is particularly likely = to be=20 the case where another practitioner engages in reckless, unethical, = wilful or=20 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=20 or competence' encompasses not only clinical skills, but would also = include a=20 flagrant departure from accepted standards of professional = behaviour.

The=20 reportable misconduct must pose a risk of harm to some other person as = well as=20 constituting a flagrant departure from accepted standards of = professional=20 practice or competence, before mandatory reporting is = required.

3.3 ... engages in sexual misconduct in connection with the practice = of=20 medicine.
The misconduct to be reported is linked to the = practice of=20 medicine. Under current Board policy, it is an absolute rule that a = medical=20 practitioner who engages in sexual activity with a current patient is = guilty of=20 professional misconduct. Engaging in sexual activity with a patient = following=20 the termination of the doctor/patient relationship may also amount to=20 professional misconduct, depending on the circumstances of each case. = For more=20 information refer to the Board's=20 policy on sexual misconduct.

4. OTHER LEGAL = OBLIGATIONS

In some circumstances, medical practitioners will be under specific = legal=20 obligations not to disclose information. In particular practitioners who = are=20 members of an approved quality assurance committee or root cause = analysis team=20 pursuant to the Health Administration Act must not disclose any = information=20 acquired in their capacity as a member, except in certain specified=20 circumstances. It is an offence to do so. Accordingly, where a = practitioner=20 forms a belief or reasonable belief that reportable misconduct has = occurred=20 based on information received in their capacity as a member of an = approved QA=20 committee or RCA team, they are not required to report the matter to the = Board=20 under these new provisions. Existing processes for bringing these = matters to=20 attention should be followed.

Medical practitioners who are members of non-approved quality = assurance or=20 peer review committees are not subject to statutory non-disclosure = requirements,=20 and so will be required to report to the Medical Board where they = believe or=20 ought reasonably to believe there has been reportable misconduct by = another=20 practitioner.

If you have any concerns as to whether you are obliged = to=20 notify the Medical Board of reportable misconduct, or need legal advice = as to=20 whether the conduct itself is reportable, contact your defence = organisation or=20 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=20 misconduct in the following circumstances:
(a) if he or she practises medicine while intoxicated by = drugs=20 (whether lawfully or unlawfully administered) or alcohol,
(b) if = he or=20 she practises medicine in a manner that constitutes a flagrant = departure=20 from accepted standards of professional practice or competence and = risks=20 harm to some other person,
(c) if he or she engages in sexual = misconduct=20 in connection with the practice of medicine.
(2) A = registered=20 medical practitioner who believes, or ought reasonably to believe, = that some=20 other registered medical practitioner has committed reportable = misconduct=20 must, as soon as practicable, report the conduct to the = Board.
Note.=20 Pursuant to sections 36 (1) (b) and 37, failure to comply with = this=20 section will constitute either unsatisfactory professional conduct or=20 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=20 for the purposes of sections 96 and 98 of the Health Care Complaints = Act=20 1993.

=C2=A9 2009 New South Wales Medical Board

Con= tact=20 Us | Disclaimer = ; | =20 Register of Medical=20 Practitioners

Site by=20 Internetrix