Sexual misconduct laws must ‘strike the right balance’

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Under proposed changes, doctors found guilty of sexual misconduct or boundary violations could have their whole regulatory history published in perpetuity.

The AMA and RACGP are urging the government to take doctors’ rights to procedural justice into consideration while it works to strengthen AHPRA’s approach to sexual misconduct.

Spurred by media reports of health practitioners who had reoffended after returning to practice following a finding of sexual misconduct or sexual boundary violation, federal and state health ministers committed to reforms in February 2023.

There are three proposed changes to the Health Practitioner Regulation National Law which are now in the consultation phase.

The first amendment is the biggest in terms of potential impact.

It would require the national boards to permanently publish a practitioner’s full regulatory history on the register should they be found to have engaged in sexual misconduct, a sexual boundary violation or been convicted for a criminal sexual offence unrelated to practice.

“[Under these rules] the regulatory information published on the register would include all regulatory actions taken against a practitioner by the relevant national board, or tribunal decisions against that practitioner from 2010 onwards,” the background paper on the reforms said.

“This means that the full regulatory history of the practitioner, including regulatory history which is unrelated to the professional misconduct that is sexual in nature, would be published.”

Examples of the information that could be published are links to tribunal decisions, undertakings provided by the practitioner and reprimands.

Practitioners will be able to appeal to their relevant board to have information excluded or removed in limited circumstances. These include the removal of information relating to an impairment or health condition, information suppressed by the court and information that could pose a risk to the health or safety of the practitioner or their family.

The second amendment is more minor and seeks to establish nationally consistent rules for reinstating a practitioner with a cancelled or disqualified registration.

It would introduce a requirement for doctors to seek a reinstatement order from a tribunal prior to applying for re-registration.

Rounding out the trio of changes is a draft provision to prevent practitioners from going after a notifier who has reported them to AHPRA in good faith.

People who make a notification about a practitioner currently have no specific protections from harm, threats, intimidation, harassment or coercion under national law.

It also clarifies that signing a non-disclosure agreement does not prevent someone from making a good-faith notification to AHPRA.

The proposal to publish the full regulatory histories of doctors who have been found to have engaged in sexual misconduct has proven controversial.

“It is essential that doctors who have been found to have done the wrong thing are appropriately sanctioned in order to shine a light on the devastating impact that sexual abuse can have within the community and to protect patients and the public,” Medical Indemnity Protection Society chief medical officer and GP Dr Owen Bradfield told The Medical Republic.

“It is also important to ensure that the public has confidence not only in the medical profession, but also the systems of regulation in place to protect vulnerable Australians.

“On the other hand, it is important to ensure that any amendments to the National Law do not unfairly impact on the overwhelming majority of doctors who do the right thing.”

Right now, AHPRA is only allowed to display sanctions until they expire or the national board decides it is no longer necessary.

Because of the way the amendment is structured, the publishing-then-deleting process would continue for doctors found to have engaged in non-sexual professional misconduct. 

Dr Bradfield, who has dual qualifications in medicine and law, raised questions about what the amendment implied about AHPRA’s existing processes.

“For example, if existing regulatory processes and sanctions are effective and fit-for-purpose, then the public should be sufficiently confident that when a national board restricts a practitioner’s registration, that action was necessary to protect the public from an identified risk of harm posed by that practitioner continuing to practise,” he said.

Logically, it would follow that the public should be sufficiently confident in a national board’s judgement when it lifts a restriction.

“Therefore, if a National Board finds that there is no ongoing risk posed to the public by the practitioner resuming practice, then it seems unclear what purpose is being served by the practitioner’s regulatory history being published in full,” Dr Bradfield said.

It’s a view that both the AMA and RACGP shared in respective submissions on the amendments.

The AMA went so far as to call the permanent inclusion of a practitioner’s entire regulatory history on the register a “serious and ongoing punishment in perpetuity” and called for the scope to be narrowed to only include previous instances of sexual boundary violations or sexual misconduct.

The term ‘sexual misconduct’ encompasses actions like touching a patient inappropriately or engaging in consensual or non-consensual sex with a patient, while a ‘sexual boundary violation’ includes conducting unwarranted physical examinations or sexual remarks.

While inappropriately touching a patient in a sexual manner is both misconduct and a boundary violation, blowing a kiss to a patient would just be a boundary violation.

To keep it simple, nearly all sexual misconduct is also a sexual boundary violation, but not all sexual boundary violations are sexual misconduct.

The RACGP recommended that the publication of tribunal outcomes for complex cases be considered on a case-by-case basis “as the publication of previous disciplinary history has the potential to impact beyond the intended consequences of any regulatory action”.

Both doctor representative bodies supported the other two amendments but cited concern over AHPRA’s historical management of vexatious notifications.

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