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Stricter rules following allegations of sexual misconduct

The number one reason doctors are disciplined for misconduct in Australia and New Zealand currently is sexual misconduct. In circumstances where there is an allegation of sexual misconduct, the Australian Health Practitioner Regulation Agency (AHPRA) can mandate that a chaperone be present when the practitioner attends to patients. In August 2016, the Chaperone Review was commissioned by AHPRA and the Medical Board of Australia (MBA) to examine the use of chaperones.

Insurers and medical practitioners need to understand the new regime as the changes (implemented as a result of the Chaperone Review) are a significant departure from previous practice. Practitioners will find it increasingly difficult to continue practising while investigations are underway and there will be more transparency in the event that a prosecution is successful.

Why the review?

The Review, undertaken by Professor Ron Paterson, was commissioned following media reports questioning the efficacy of the chaperone system. The reports followed incidences involving Melbourne neurologist, Dr Andrew Churchyard, who was continuing to practice under the supervision of a chaperone after he faced criminal charges relating to allegations that he had indecently assaulted a 19 year-old male patient, who had notified AHPRA. A further allegation was made by a second patient who was allegedly indecently assaulted by Dr Churchyard behind a drawn curtain while the chaperone was present.

The Review involved consultation with AHPRA, the MBA, the public and the profession, including a call for submissions.

Recommendations now implemented

On 26 March 2018, AHPRA announced it had implemented all of the recommendations of the Chaperone Review. The landscape for dealing with allegations of sexual misconduct has been significantly altered as a result.

The position is now that:

  • chaperones must only be used in exceptional circumstances as an interim measure while allegations of sexual misconduct are investigated
  • in the event that they are used, patients must be advised at the time of booking why the practitioner requires a chaperone
  • chaperones are to be registered health practitioners with no pre-existing employment or contractual relationship to the practitioner under investigation
  • AHPRA will create a specialist team to improve the handling of sexual misconduct claims and will provide more information to patients where chaperoning is considered appropriate
  • the MBA will audit all sexual misconduct "immediate action" decisions made by AHPRA
  • there will be improved communication between investigators and those notifying AHPRA of incidents
  • guidelines will be established as to when staff should notify police
  • interim restrictions and suspensions will be reviewed at least every six months, and 
  • links to public disciplinary decisions published by courts and tribunals will be included on a practitioner's listing on the Register of Practitioners published on the AHPRA website.

Professor Paterson said: "Putting links to published disciplinary decisions and court rulings on the online register will enable concerned patients to check relevant information for themselves. Patients and the public will be better informed and protected by these changes to the management of sexual misconduct cases."

We would like to acknowledge the contribution of Lani Carter to this article.

The Health Care Complaints Commission and Dental Council's investigative approach to complaints

It has become common practice in NSW for the Health Care Complaints Commission (HCCC) and the Dental Council (the Council) to conduct full investigations into all complaints made against health practitioners, regardless of their perceived merits and whether they are false or malicious.

This power to investigate is derived from s 23(1) of the Health Care Complaints Act 1993, which requires that the relevant professional council be "of the opinion" that a complaint should be investigated. To form that opinion, the HCCC or the Council may request the person being complained of respond to the complaint, or allow inspectors to visit their practice to ensure they comply with codes and practice, to determine whether the complaint has merit.

This is all it takes for insurance policies to be triggered and thousands of dollars spent. Due to the number of complaints and the potentially severe consequences of complaints being upheld, including de-registration, lawyers are often engaged to draft responses.

A case in point

The well-known fear and cost of investigation has prompted unfortunate instances of malicious complaints. A disgruntled former owner of a practice who reported the new owners for breaches of hygiene and professional conduct serves as an example. It appears that the former owner stole the identity of a former student of the new owners and posed as her during the online complaints procedure to the HCCC.

The HCCC referred the complaint to the Council. The Council asked the practice to provide a response to a Notice to Provide Infection Control Information under s 164G of the Health Practitioner National Law. That involved three dentists in the practice spending a weekend reviewing their hygiene control procedures and producing four folders of documents to accompany submissions stating how and why the practice was compliant.

The Council then provided the practice with the complaint. One of the dentists rang the notional complainant to discover she had not made the complaint. The "real" student informed the Council and requested the complaint be withdrawn due to the likely identity theft.

But that was not the end of the matter. The Council decided that, pursuant to the legislation, they must investigate the complaint, even knowing it was malicious. Again, the practice was required to provide a detailed response.

A costly issue could have been avoided had the HCCC checked the bona fides of the complainant.

What should medical practitioners do?

The threshold to conduct a full investigation by the HCCC and Dental Council is minimal, however for medical practitioners the process often takes time (several weeks and months), results in high costs and a lot of stress. Unfortunately at this stage, there is little medical practitioners can do to avoid the situation. In saying this, medical practitioners should mitigate the situation by reporting (and disclosing) everything to their insurers and, if engaged, legal representatives as quickly as possible.

We would like to acknowledge the contribution of Mark Doepel, Henry Bourke and Dylan Moller to this article.

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