While many in the profession view mandatory reporting as an intimidating or punishing practice, its focus is protecting the public from substantial risk of harm. There are many myths perpetuated, but they are largely untrue . A responsible approach to mandatory reporting allows us to look out for our peers, intervene before a high-risk situation escalates, protect the public from harm and practitioners from regret.
So how do you know what to report, when to report someone else and to whom? We explore the types of incidents and circumstances in which making a mandatory report is in the public’s best interests.
1. Mandatory reporting laws exist to protect patients from a small number of doctors who pose a substantial risk of harm.
Patients place a great deal of trust in their doctors and the profession, and as a result, practitioners gain more confidence in their abilities. However, doctors are fallible too and not exempt from the same challenges faced by patients, such as:
- impairment from illness, including severe mental illness
- drug and alcohol problems, and
- committing crimes, including sexual misconduct.
In addition, a doctor can make a mandatory report about another doctor’s “significant departure from accepted professional standards”. This is much more than a difference of opinion; a doctor’s action only needs to be reported if it represents a significant lack of judgement or clinical skill.
All mandatory reports in NSW must go to the Australian Health Practitioner Regulation Agency (Ahpra). Ahpra will then filter the information to the Medical Council of NSW and the Health Care Complaints Commission (HCCC). It’s important to note that mandatory notifications are incredibly rare, as few cases meet the reporting threshold of ‘a risk of substantial harm’. In fact in 2020/21, these made up only 4% of complaints to the Medical Council.
2. If you seek help for an illness, particularly mental illness, it is highly unlikely you will be the subject of a mandatory notification.
There are different thresholds that trigger a mandatory notification depending on whether you are making a notification as a treating practitioner, non-treating practitioner, employer or education provider.
For example, a treating practitioner making a mandatory notification has a higher notification threshold. This is to give doctors the confidence to seek help without fear of professional ramifications. The threshold for treating practitioners to make a mandatory notification about an impairment, intoxication while practising, or significant departure from accepted professional standards is where there is a substantial risk of harm to the public. This is quite a high bar.
This must be based on reasonable belief that the incident or behaviour that occurred led to an unacceptable risk to the public. For example, you have direct knowledge, or a report from a reliable source about their experience or observations.
There is, however, a lower threshold for making a mandatory notification as a treating practitioner that applies for sexual misconduct. If you have the reasonable belief that your practitioner-patient has engaged, is engaging or is likely to engage in sexual misconduct in connection with their practice, you must report that.
3. Illness does not equal impairment. Early treatment is a good preventative measure against mandatory notification.
Illnesses and impairments are not treated equally. Plenty of medical practitioners have suffered an illness without their practice being impaired or detrimentally affected. This may be true of both physical and mental illnesses. In fact, the Medical Board of Australia’s Dr Anne Tonkin emphasises, "One of the best ways to avoid a mandatory notification is to get help early, before an illness becomes an impairment that may put the public at risk". Fear of mandatory notification should never get in the way of your intent to seek help.
A mental or physical health condition does not automatically set you up for mandatory notification. The system is much more nuanced than that. A practitioner-patient may have an impairment that causes a detrimental impact on their capacity to practise but, unless it poses a substantial risk of harm to patients, it does not trigger a mandatory notification.
Ahpra provides several examples in their guidelines. One such example covers a practitioner-patient with a small tremor, which is being treated. The doctor has restricted their practice to consultations, and they no longer perform procedural work. Because the tremor would affect procedural work, not consultations, it causes little risk of harm to the public. This would not trigger a mandatory notification.
The focus of the updated legislation is on making sure that doctors can get the help they need without fear of being reported.
4. There are things you must self-report to Ahpra.
In NSW these concerns will be passed on to the Medical Council of NSW and the HCCC.
You must notify Ahpra within seven days of any:
- Police charges that carry 12 months or more potential imprisonment
- Conviction of an offence punishable by imprisonment
- Loss of professional indemnity insurance
- Loss of hospital rights/restrictions
- Medicare billing limitations
- Prescribing restrictions.
5. Being the subject of a mandatory notification is not career ending.
In fact, it can be the first step to you getting the help you need to get well, receive support and continue in your career. The intention is not to exclude or suspend doctors who are unwell, but to ensure public safety. Remember, a mandatory notification is vastly different to a complaint and is only made in the case of serious unmanaged risk to the public.
In cases where doctors have insight into their condition, are engaging proactively with their treating teams, and are undertaking treatment, a mandatory report is generally not required.
However, where regulators do agree there is serious, unmanaged risk to the public, the case is reviewed by a panel who consider how this risk can be best managed. Doctors may not be suspended, but instead have conditions placed on their practice to help manage the risk. For example, conditions may be placed to ensure they seek ongoing treatment, limit the number of patients they see, remove prescribing rights of high-risk addictive medications or prevent them from undertaking particular procedures.
6. You have a responsibility to make a report if you see a non-patient colleague demonstrating the concerning behaviours mentioned in the mandatory reporting guidelines.
The health care system relies on the good reputation of medical professionals within the community. Without the trust and presumption of competence, patients are less likely to seek treatment or follow treatment advice.
The number of complaints the Medical Council receives from doctors (including mandatory reports) is extremely small. This shows the hesitation of doctors to report the concerning behaviours of their peers. Fear of professional ramifications, retribution or the potential damage to a colleague’s career all play a part in this space. However, mandatory notification legislation is in place to protect the public and prevent substantial risk of harm. It also sets the reported doctor on a path to getting help. Mandatory notifications cannot be made anonymously.
Medical Council President, Dr John Sammut says, “While many in the profession view mandatory reporting as an intimidating or punishing practice, its focus is on protecting the public from a substantial risk of harm. There are many myths perpetuated, but they are largely untrue. A responsible approach to mandatory reporting allows us to protect the public from harm and look out for our peers by intervening before a high-risk situation escalates or consequences arise that leave a practitioner perpetually in regret.
7. As an employer, you have the same obligations as a non-treating practitioner.
However, it is still the employer’s responsibility to manage the employee practitioner’s performance and protect the public from risk of harm. Employers are expected to have processes and protocols in place to assess when and how a mandatory notification would be made.
Factors including circumstance, the doctor’s scope of practice and context, extent of engagement with treatment, controls such as breaks from work, and other arrangements can affect the level of risk –– and the need to report. The risk assessment should holistically consider all relevant factors, with some factors weighted more heavily than others, depending on the circumstance. A tool to assess risk can be found on the Ahpra website.
8. Mandatory notifications are only required for medical students when they are undertaking clinical training.
If a student is not likely to have contact with the public in their clinical training in the foreseeable future, then there is minimal risk to the public arising out of clinical contact. If the student is in contact with the public as part of their clinical training, or will soon have contact with the public, then, before making a notification, you need to consider:
• whether there is a risk to patients or the wider community
• whether there is a real and substantial risk of severe harm occurring
• whether the risk to the public can be managed through treatment or other strategies.
The guidelines on reporting registered students may assist you in assessing risk.
9. The key to coming out the other side of a mandatory notification is support.
There is no doubt that being the subject of a mandatory notification is a highly emotive and stressful time. It is important to ensure that you have support throughout the process, whether that be from your own doctor, family, or colleagues. There are also professional services such as the Doctors’ Health Advisory Service that can assist you 24/7. Ahpra has produced a video that answers common questions about the process.
If you are the subject of a notification, please contact your medical indemnity insurer. Your insurer will have significant experience dealing with these notifications.
10. If you’re unsure of whether to make a report, there are people you can talk to.
It’s not always clear whether a colleague’s behaviour meets the threshold for reporting and it’s not an easy decision to make. If you are unsure of whether a report should be made, consider reaching out confidentially to a peer, supervisor, or your medical indemnity insurer, or make an anonymous enquiry to Ahpra.
Ahpra has a number of resources to help doctors decide whether a mandatory report is required. The guidelines contain tools to help you assess the psychosocial and clinical risks of harm to the public, as well as flow charts to help with decision making. In the next edition, we will also explore how mandatory notification can play out with various real-world scenarios.