When practitioners would prefer speedy punishment to years spent clearing their name, something is going terribly wrong.
The two biggest criticisms of the health practitioner regulators tend to be their timeliness and the quality of their decisions.
We know that AHPRA in particular is woeful at acting in a timely manner. There have been numerous enquiries into the regulators on the specific topic of excessive delay. Even now, many practitioners have been under investigation by AHPRA for more than four or five years – and that is completely unacceptable.
There are numerous reasons for those delays, which I will not get into here, but they include resourcing and over-investigating.
An aged investigation will usually adversely impact everyone in the process. The person most affected is nearly always, of course, the practitioner.
Being under investigation can cause you to doubt everything you thought you knew about yourself. It can cause you to change the way that you work, and not always for the better. It is stressful and harms personal relationships.
Six months under investigation is an eternity. Two years is almost unthinkable. Five years is … something I don’t really have words for (and I am not someone who is usually short of words).
I have assisted multiple clients who have been the subject of lengthy investigations stretching over years, only to have no action taken at the end of it. I vividly recall one practitioner saying at the end of their investigation that they wished that they had just admitted all the allegations at the start – allegations that were not ultimately made out – so that they could have had some conditions imposed and put it behind them.
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That practitioner is not alone. Many practitioners have expressed to me that they just want it over, even if the worst is found against them.
Another related issue is that the sheer number of investigations means that those who may have engaged in professional misconduct are not investigated quickly either, as most matters take years to get to a tribunal. Ninety-five percent of matters are less serious and need far less resources spent on them.
The damage caused by excessive delay cannot be accurately quantified, but to me it is the most obvious “solvable” issue that currently exists in our system.
Turning to the second criticism of regulators, there will always be imperfect decision-making in this area.
That is because perfect health regulation requires the regulator to accurately predict the future (Minority Report-style) to pre-emptively restrict or prevent the unsafe from practising the profession, while permitting the rest of the profession to work unhindered.
It is an impossible task. Regulators are often blind to unsafe practitioners until they receive a complaint (after the damage is done), and even then the truth is very hard to determine.
With that said, a reasonable proportion of the decisions made by regulators are decent decisions. The quality of their decisions likely increases with additional time taken, but there are diminishing returns – a decision that takes three months instead of one month will probably be substantially better, but a decision that takes five years instead of one year is not likely to have the same increase in quality.
Indeed, significant delay actually reduces the quality of decisions; evidence is lost, and the memory of witnesses fades.
Despite all the enquiries into the problems of delay, the issue has not gone away over the last 20 years. If anything, it has gotten worse.
For the practitioner I mentioned earlier, the better decision that was ultimately made – that they were innocent of the allegations – was not worth the time that it took to get a better decision. A poor and inaccurate decision was preferable if it meant that the matter was over faster.
So what can be done?
I would suggest, perhaps controversially, that we should lean into that imperfect decision-making.
Excluding matters that are very serious and likely to go to a tribunal (which can usually be identified very early), I would propose that all other matters should be decided within a very short time period of, say, three to four months. If they are not decided in that time frame, the regulator must justify it publicly to the relevant minister and the public, with extreme pressure to finalise matters that go beyond that date.
Part of this shift could be a new category of condition – conditions aimed at educating or increasing knowledge, which are not publicly on the register. These conditions would be imposed on the basis that the complaint identifies a potential area of deficiency. They would not need to be notified to an employer or a notifier. They would be supportive, not punitive, aimed solely at increasing skills.
This system would result in more conditions being imposed, but they would be conditions that do not fit into the current “name and shame” approach.
Rather, the fact of a condition being imposed would not in any way mean that you have done the wrong thing. It is simply that as part of your CPD that year you need to complete education on a particular topic (or topics). It would give you an area of focus for development and would mean that the regulators can spend their time dealing with more serious matters.
The negative impact of significant delays is so damaging that it is worth taking a slight hit to the quality of decision-making. Providing a pressure valve that allows most matters to be dealt with quickly has the potential to greatly improve many aspects of our current system, and particularly the experience for practitioners.
I’m curious to know your thoughts about the above (including if you significantly disagree), and what you think could be done to deal with the issue of delay.
David Gardner is a lawyer, and a former manager and investigator at AHPRA. In addition to his legal practice, he is the director of AHPD, a new CPD provider of high-quality education to doctors on largely neglected non-clinical topics.
