Its 'proposals and issues summary' states
Proposals and issues in the consultation paper relate to the following five reform themes:
- Governance of the National Scheme
- Registration functions
- Health, performance and conduct
- Offences and penalties
- Information and privacy.
Governance of the national scheme
3.1 Objectives and guiding principles – referencing cultural safety for Aboriginal and Torres Strait Islander Peoples
This section seeks feedback about whether the guiding principles and/or objectives of the Health Practitioner Regulation National Law (the National Law) should be amended to require consideration of cultural safety for Aboriginal and Torres Strait Islander Peoples in the regulatory work of National Boards, Australian Health Practitioner Regulation Agency (AHPRA), Accreditation Authorities and all entities operating under the National Law, in order to address health disparities between Indigenous and non-Indigenous Australians.
3.2 Chairing of National Boards
Eligibility for appointment to chair a National Board This section asks for a preferred option on whether the role of Chair of a National Board should be open to both community and practitioner members or whether this role should be reserved for practitioner members only. The options proposed for consultation are:
1. no change – only a practitioner member may be appointed to the role of Chair
2. amend the National Law to remove the requirement for the Chair to be a practitioner member, allowing either a practitioner member or a community member to fill the role
3. amend the National Law to provide that the role of Chair is reserved for practitioner members only, unless it is necessary for the good governance of the Board that a community member be appointed.
3.3 System linkages
This section on strengthening system linkages considers whether: • the current powers of National Boards and AHPRA to share and receive information with other agencies are adequate to protect the public and enable timely action • the current linkages between National Boards, AHPRA and other regulators are working effectively • there should be a statutory basis to support the conduct of joint investigations with other regulators, such as drugs and poisons, public health consumer protection regulators, and, if so whether changes would be required to the National Law.
3.4 Name of the Agency Management Committee
This section seeks feedback about whether the National Law should be amended to retitle the Agency Management Committee of AHPRA as the Australian Health Practitioner Regulation Agency (AHPRA) Board or the AHPRA Management Board.
Registration functions 4.1 Registration improperly obtained – falsified or misleading registration documentation
This section seeks feedback about whether the National Law should be amended to enable a National Board to withdraw a practitioner’s registration where it has been improperly obtained, without having to commence disciplinary proceedings against them under Part 8.
4.2 Endorsement of registration for midwife practitioners
This section asks whether the provision in the National Law that empowers the Nursing and Midwifery Board to grant an endorsement to a registered midwife to practise as a midwife practitioner should be repealed.
4.3.1 Undertakings on registration Power to accept an undertaking at first registration and at renewal (instead of imposing a condition)
This section seeks feedback about whether the National Law should be amended to empower a National Board to accept an undertaking from a practitioner at first registration or at renewal of registration.
4.3.2 Failure to comply with an undertaking – impact on renewal of registration
This section seeks feedback about whether the National Law should be amended to empower a National Board to refuse to renew the registration of a practitioner on the grounds that the practitioner has failed to comply with an undertaking given to the Board
4.4 Reporting of professional negligence settlements and judgements
This section asks for a preferred option in relation to the reporting to the National Boards of professional negligence settlements and judgements. The four options proposed for consultation are:
1. no change – rely on the existing notifications process and practitioner credentialing to detect at risk practitioners
2. practitioner obligation to disclose during a disciplinary process
3. practitioner obligation to report
4. insurer obligation to report.
4.5 Reporting of charges and convictions for scheduled medicines offences
This section seeks feedback about whether the National Law should be amended to require a practitioner to notify their National Board if they have been charged with or convicted of an offence under drugs and poisons legislation in any jurisdiction.
4.6 Practitioners who practise while their registration has lapsed
This section seeks feedback about whether the National Law should be amended to provide National Boards the discretion to deal with a practitioner who has inadvertently practised while unregistered for a short period, and in doing so has breached the title protection or practice restriction provisions, by applying the disciplinary powers under Part 8 section 178, rather than prosecuting the practitioner for an offence under Part 7.
4.7 Power to require a practitioner to renew their registration if their suspension spans a registration renewal date
This section seeks feedback about whether the National Law should be amended to clarify whether a practitioner returning from suspension, whose suspension has passed one or more renewal dates, should be required to apply to renew their registration so that the National Board may consider their suitability to practice.
Health, performance and conduct
5.1 Mandatory notifications by employers
This section seeks feedback about whether the National Law should be amended to clarify the mandatory reporting obligations of employers, including a specific obligation to notify AHPRA when a practitioner’s right to practise is withdrawn or restricted due to patient safety concerns associated with their conduct, professional performance or health.
5.2.1 Preliminary assessment of notifications
Access to clinical records during preliminary assessment This section seeks feedback about whether the National Law should be amended to empower practitioners and employers to provide patient and practitioner records when requested to do so by a National Board during the preliminary assessment stage of a notification.
5.2.2 Referral to another entity at or following preliminary assessment
This section seeks feedback about whether the National Law should be amended to clarify the powers of a National Board following preliminary assessment, including a specific power to enable the National Board to refer a matter to be dealt with by another entity including a Court in the case of an expert witness.
5.3 Investigation powers: Production of documents and the privilege against self-incrimination
This section seeks feedback about amending the provisions of the National Law which relate to producing documents or answering questions to require a person to produce self-incriminating material or give them the option to do so. Feedback is sought in relation to the potential scope of such a requirement and protections for the use of the material.
5.4.1 Regulatory actions available to National Boards Show cause process for practitioners and students
This section seeks feedback on whether the National Law should be amended to: • enable a National Board to take action under another Division following a show cause process under section 179 • remove the current section 179(3) exemption and thereby provide a statutory requirement for a National Board to offer a show cause process under section 179, in any circumstance where it proposes to take relevant action under section 178, and aligning to current operational practice and policy.
5.4.2 Discretion not to refer a matter to a tribunal
This section seeks feedback about whether the National Law should be amended to empower a National Board to decide not to refer a matter to the responsible tribunal for hearing, when the Board reasonably forms the view that there are no serious ongoing risks to the public and, if this option is preferred, consideration to be given to what constraints should be placed on the exercise of such discretion.
5.4.3 Settlement by agreement between the parties
This section seeks feedback about whether the National Law should be amended to provide flexibility for National Boards to settle a matter by agreement between the practitioner, the notifier and the Board, where any public risks identified in the notification are adequately addressed, and the parties are agreeable to the process.
5.4.4 Public statements and warnings
This section seeks feedback about whether the National Law should be amended to empower a National Board/AHPRA to issue a public statement or warning with respect to risks to the public identified in the course of exercise of regulatory powers under the National Law, and whether such powers should be subject to a ‘show cause’ process before a public statement or warning is issued.
5.5.1 Information sharing powers
Power to disclose details of chaperone conditions This section seeks feedback about whether the National Law should be amended to empower a National Board to: • require a practitioner to disclose to their patients/clients the reasons for a chaperone requirement imposed on their registration • provide powers for a National Board to brief chaperones as to the reasons for the chaperone.
5.5.2 Power to give notice to a practitioner’s former employer
This section seeks feedback about whether the National Law should be amended to enable a National Board to obtain previous employer details and disclose to a practitioner’s previous employer/s changes to the practitioner’s registration status, where there is reasonable belief that the practitioner’s practice may have exposed people to risk of harm and, if the proposal is preferred, the timeframe that should apply for the exercise of these notice powers.
5.6.1 Rights of review of National Board decisions Right of appeal of a caution
This section seeks feedback about whether the National Law should be amended to enable a right of appeal against a decision by a National Board to issue a caution. The options proposed for consultation are: 1. no change – a caution would continue not to be an appealable decision. 2. establish an internal review process ¬– this would enable a practitioner to seek a review of a caution by an appropriate independent person appointed by the relevant National Board 3. amend the National Law to include a caution as an appellable decision – the list of appellable decisions would be amended.
5.6.2 The rights of review of notifiers
This section seeks feedback about whether the National Law should be amended to provide a right for a notifier to seek a merits review of certain disciplinary decisions of a National Board and, if the proposal is supported, consideration to be given to the decisions that should be reviewable and who should hear such appeals, for example, an internal panel convened by AHPRA, or the National Health Practitioner Ombudsman and Privacy Commissioner, or some other entity. The options proposed for consultation are: 1. no legislative change – rely on administrative measures to improve the notifier experience 2. amend the National Law to extend the powers of the National Health Practitioner Ombudsman and Privacy Commissioner to enable to the commissioner to request that a National board reconsider a matter in specified circumstances 3. amend the National Law to provide a limited right of review for notifiers who are aggrieved by certain decisions of a National board to a fresh panel of reviewers convened by AHPRA.
Offences and penalties
6.1 Title protection: surgeons and cosmetic surgeons
This section seeks feedback about whether the National Law should be amended to restrict the use of the titles ‘cosmetic surgeon’ and ‘surgeon’, and, if the proposal is supported, consideration to be given to which practitioners should be able to use these titles.
6.2 Direct or incite offences
This section seeks feedback about whether the current provisions of the National Law are sufficient to equip regulators to deal with corporate directors or managers who direct or incite their registered health practitioner employees to practise in ways that would constitute unprofessional conduct or professional misconduct.
6.3.1 Advertising offences Prohibiting testimonials in advertising
This section asks whether the prohibition on testimonials is still needed in the context of the internet age and social media or whether the prohibition should be modified in some way. Two options are presented: 1. retain the current prohibition on use of testimonials in advertising of regulated health services 2. amend the National Law to limit the scope of the prohibition on use of testimonials in advertising, to apply only to advertising undertaken by the registered health practitioner, or their employer. The prohibition would not apply to testimonials via means such as service directory sites or consumer blogs, that are not linked to the practitioner and for which a practitioner has no control of the content. Under this option, there would be nothing to prevent a consumer publishing on a website or via social media a testimonial about a registered health practitioner or regulated health service, as long as this is not solicited by or linked to the practitioner to whom it relates.
6.3.2 Advertising offences Penalties for advertising offences
This section seeks feedback on whether the monetary penalty for advertising offences is set at an appropriate level, given other offences under the National Law, and community expectations about the seriousness of the offending behaviour. There are three main options: 1. status quo –the maximum penalties for breach of advertising provisions would remain at $5,000 for an individual, and $10,000 for a body corporate 2. increase the penalties for breach of advertising provisions to $60,000 for an individual and $120,000 for a body corporate, in line with the proposed increased penalties for other offences which will be introduced with the Tranche 1A amendments 3. increase the penalties for breach of advertising provisions by another amount to more closely align with advertising breaches under the Australian Consumer Law.
Information and privacy
7.1 Information on the public register Power to publish more information on the public register
This section seeks feedback about whether the National Law should be amended to expand the type of information recorded on the national registers and specialist registers. This includes the publication of disciplinary information, and seeks views on timeframes and thresholds for publication and removal of information.
Power to suppress information from the public register
This section seeks feedback about whether section 226 of the National Law should be amended to: • broaden the grounds for an application for suppression of information beyond serious risk to health or safety of the registered practitioner • require or empower a National Board to remove the employment details (principal place of practice) of a practitioner from the public register in cases of domestic and family violence • enable National Boards not to record information on, or remove information from, the public register where a party other than the registered health practitioner may be adversely affected.
7.2 Use of aliases by registered practitioners
This section seeks feedback about whether the National Law should be amended to provide AHPRA with the power to record on the public registers additional names or aliases under which a practitioner offers regulated health services to the public.
7.3 Power to disclose identifying information about unregistered practitioners to employers
This section seeks feedback about whether the National Law should be amended to enable a National Board/AHPRA to disclose information to an unregistered person’s employer if, on investigation, a risk to public safety is identified.
