'Views on mandatory reporting of impaired health practitioners by their treating practitioners: a qualitative study from Australia' by
Marie M Bismark, Ben Mathews, Jennifer M Morris, Laura A Thomas and David M Studdert in (2016)
BMJ Open comments
Since the time of Hippocrates, doctors have been bound by three core ethical duties: protection of patients (‘I will keep (the sick) from harm and injustice’); confidentiality (‘What I may see or hear in the course of the treatment … I will keep to myself’) and loyalty to the profession (‘To hold him who has taught me this art as equal to my parents’). Codes of practice for other health professions impose similar duties. These duties may conflict sharply with each other in situations where a health practitioner, during the course of treating a colleague, becomes aware of an impairment that may affect the colleague's ability to practice safely.
Since 2010, health practitioners in Australia have had a legal obligation to notify the Australian Health Practitioner Regulation Agency (AHPRA) if they have a reasonable belief that another health practitioner has practiced while intoxicated, engaged in sexual misconduct, significantly departed from professional standards or placed the public at risk of substantial harm because of an impairment (table 1). The purpose of the legislation is to protect the public, by ensuring that practitioners practice in a competent and ethical manner. Controversially, the mandatory reporting duty extends to practitioners who provide clinical care to an impaired practitioner, such as a psychiatrist who treats an anaesthetist with a substance use disorder or a neurologist who cares for a general practitioner with dementia. Such ‘treating practitioners’ and ‘practitioner-patients’ form the focus of this study.
Australia is not the only jurisdiction to have mandated reporting of practitioner-patients. New Zealand7 and some US states have similar requirements. However, three features of the Australian provisions make them unusually far-reaching. First, they apply to treating practitioners in 14 health professions, ranging from Aboriginal and Torres Strait Islander health practice to psychology, not merely to medical practitioners. Second, the reporting requirement is triggered by identification of a past risk of substantial harm, rather than future risks. And third, unlike some US laws, there is no safe harbour from reporting in situations where the practitioner-patient agrees to participate in an approved treatment programme. It should be noted that some exemptions for mandatory reporting by practitioner-patients exist in the states of Queensland and Western Australia, but there is none in Australia's other four states and two territories.
Mandatory reporting, especially by treating practitioners, is controversial. Proponents assert that disclosure of an impairment that places the public at risk of substantial harm is necessary to protect patients. Opponents argue that this approach deters help-seeking and drives impaired practitioners underground. The Australian Medical Association has led the call for treating practitioners to be exempt from the duty to report impaired health practitioners. A recent independent review of the national law, commissioned by the Australian state and federal health ministers, expressed the same view.
Debate over the desirability of imposing mandatory reporting requirements on treating practitioners has occurred against a background of scant evidence about the attitudes and practices of practitioners who encounter such situations. In deferring action on the recommendation of the independent review, the Australian health ministers concluded that ‘data is inconclusive’ and that further research is needed to inform a national approach. To date, the only empirical study into mandatory reporting behaviour in Australia found that such reports are rare events. Over a 13-month period, only 816 mandatory reports were lodged with AHPRA (18 reports per 10 000 practitioners per year)
One shortcoming of previous research was that, as a purely quantitative analysis of reports made to AHPRA, it had almost no information on the settings from which the reports arose, and the motivations and attitudes of the treating practitioners who made them. To better understand the knowledge and attitudes of practitioners towards their mandatory reporting duties and their experiences in dealing with impaired practitioner-patients under the new regime, we collected qualitative data from treating practitioners and medicolegal advisors in each of Australia's six states.
In discussion the authors comment
Australia's mandatory law has been the subject of vigorous debate, but the debate has occurred in a vacuum of evidence about the law's impact or effectiveness and the attitudes and experiences of practitioners in applying it. This qualitative study explored the views and experiences of 18 health practitioners and 4 medicolegal advisors on mandatory reporting by treating practitioners of impaired practitioner-patients.
Purpose of mandatory reporting
A major finding of this study relates to interviewees' knowledge of and attitude towards the general purpose of the law. There was widespread acceptance among interviewees that certain types of public health concerns can trump the general duty of patient confidentiality, as they do with respect to other conditions, such as child abuse and infectious disease, which are subject to mandatory reporting. Furthermore, all interviewees agreed that minimising the risk posed to patients by practitioner impairment—the public health policy goal which underpins the mandatory reporting law—is an important aim. Where interviewees diverged was with respect to the question of whether mandatory reporting laws are an effective mechanism by which to achieve this goal.
Approximately one-third of interviewees opposed mandatory reporting obligations for treating practitioners under any circumstances, opining that decisions about reporting should always be left to individual practitioners. However, a majority supported mandatory reporting requirements for treating practitioners in certain circumstances. Among such guarded supporters were a number of interviewees who had experienced tensions and reticence when faced with the decision of making such a report. In their view, the existence of the legal duty provided practitioners with a ‘lever’ to influence the behaviour of impaired practitioners, offered protections to those who did make reports and underscored the duty to protect the public from harm.
There are some internal tensions in these findings. On the one hand, some of the practitioners we interviewed opposed any kind of mandatory reporting law. On the other hand, everyone supported the overriding policy goal of minimising the risk posed to patients by practitioner impairment. How can these standpoints be reconciled? One interpretation is that practitioners have misconceived the nature of the reporting duty and its parallels with existing ethical duties to protect third parties from harm. Perhaps the kind of case they envisage as triggering the requirement to report is not, in fact, the target of the law. Indeed, the Medical Board has seen the need to issue a number of statements clarifying that the threshold for reporting is high and is not triggered in situations where a practitioner is compliant with treatment and any risk to the public has been appropriately managed. An alternative interpretation is that practitioners have adopted a utilitarian approach and believe that the good achieved by reporting practitioners with impairments—at least under the current regulatory system—is outweighed by the harm associated with discouraging other impaired practitioners from seeking help for their impairing conditions.
Interface with clinical practice
Another major finding is that, regardless of whether they supported the existence of a mandatory duty to report, all interviewees identified deficiencies in the way that the legal regime currently operates. These concerns focused on three areas: knowledge, content and administration of the law.
Knowledge of the law
The first concern was that, while the medicolegal advisors had a predictably strong knowledge of the law, most interviewees felt that health practitioners did not have a clear understanding of their obligations. (Indeed, it was apparent that the interviewees themselves, who were sampled specifically because of their familiarity with the reporting regime, exhibited a shaky grasp of some of its details.) Studies of other mandatory reporting regimes have also found that mandated reporters often do not have the required training to properly fulfil their role. A fundamental tenet of the rule of law is that a law must be reasonably intelligible, clear and predictable for those to whom it applies. Yet interviewees relied heavily on medical indemnity providers for advice on their reporting responsibilities.
Interviewees also noted that it was difficult to access any case studies on mandatory reporting by treating practitioners or to obtain real-time advice on their obligations from AHPRA. This reported absence of sufficient education is a flaw in implementation. However, it is a remediable flaw. All practitioners need and deserve sufficient education about the nature of the mandatory reporting law, its context, purpose, scope and method of implementation. This will better enable effective reporting behaviour, limit ineffective reporting behaviour and foster attitudes conducive to relevant policy goals.20 ,23 One component of this training should be case studies demonstrating the range of potential scenarios and appropriate responses. In particular, concrete information on what constitutes a ‘substantial harm’ is essential. At present, far too much is left to the eye of the beholder. Such education would provide treating practitioners and practitioner-patients with the understanding necessary to ensure smooth operation of the reporting rules. Besides enabling reporters to fulfil their duties, it may help dispel misperceptions that discourage help-seeking among impaired practitioners.
Content of the law
The second concern was that the wording of the law failed to accord with the realities of clinical decision-making. Interviewees emphasised a range of clinical and contextual factors—not mentioned in the legislation—that need to be taken into account in resolving the three-way tension between patient confidentiality, protection of the public and loyalty to colleagues. This finding resonates with previous research on mandatory reporting of child abuse, which showed that a range of case characteristics influence reporting intentions.
As it stands, some elements of discretion are already built in to the reporting duty. For example, the concept of ‘reasonable belief’ requires the practitioner to discern grounds for believing that the practitioner has an impairment and that, because of the impairment, the practitioner has placed the public at risk of substantial harm. If these conditions are not present, the duty is not activated and the practitioner is entitled to take other lesser steps to encourage the practitioner to seek assistance voluntarily. Seen in this way, the legal duty does already offer some leeway for choices to be informed by the clinical context and circumstance. However, practitioners remained concerned that the focus on past behaviour fails to take into account whether or not a practitioner-patient was willing and able to comply with an appropriate treatment plan. This finding is consistent with a recent review of mandatory reports by treating practitioners which found that most mandatory reports involve a practitioner-patient who lacks insight, is dishonest with the treating practitioner or shows a reckless disregard for patient safety.
Administration of the law
Finally, some interviewees expressed a lack of confidence in the ability of the regulator to respond to mandatory reports in a fair, timely, predictable and effective manner. This finding is consistent with results of previous studies that have found that failure to make a mandatory report is often associated with a belief that reporting will not result in an effective response. The concern is further heightened in the context of reporting an impaired peer. Involvement in medicolegal processes can be highly stressful, for whistle-blowing practitioners and for health practitioners who are subject to complaint.
When regulatory outcomes are seen as unpredictable, or likely to exacerbate rather than address the impairment, incentives not to report, spurred by considerations of patient confidentiality and professional loyalty, are more likely to hold sway.
Research in other contexts has shown that mandated reporters respond well to their duties, and sustain their intrinsic confidence and commitment to fulfilling them, when supported by robust and responsive systems. A sound regulatory system needs to possess sufficient oversight and responsive capacity and the system must not only require compliance by the regulated actors, but must demonstrate accountability to those actors. In this context, this could include (1) ensuring prompt responses to reports, (2) provision of information to the reporter about the resulting processes and outcomes and (3) appropriate and proportional responses to the concern, occurring along a spectrum from providing support and rehabilitation to disciplinary measures.
The authors conclude
On the basis of the findings from this study, we offer three recommendations for improving the operation of Australia's mandatory reporting regime, as it is applies to the obligations of treating practitioners with respect to practitioner-patients. These recommendations aim to reduce the tensions—real or perceived—between competing considerations of public protection, confidentiality and loyalty.
First, greater efforts should be made to educate practitioners about the scope of their duty under the law. At a minimum, these efforts must provide practitioners with guidance regarding how they approach the more subjective elements of the law, including the concepts of ‘reasonable belief’ and ‘substantial harm’. In a recent case involving an impaired pharmacist, a Tribunal in New South Wales expressed concern that the failure to make a notification was “indicative of a failure to understand, or properly implement, the mandatory notification provisions in the National Law.”
If many practitioners do not know the precise scope and function of the law, or worse, have a misinformed and an exaggerated sense of their reporting obligations, they are almost certainly more likely to view the law as a blunt instrument that is insensitive to the realities of clinical practice.
Second, even supporters of the law should accept that it has a flaw that is out of step with similar regimes in other places and should be rectified. Under the current law, any practitioner who has placed the public at risk of substantial harm in the practitioner's practice of the profession because of an impairment must be notified, even if their condition is now being effectively managed. The reporting duty should be amended to explicitly assure access to confidential treatment (ie, no need to report) for practitioners who voluntarily participate in an agreed treatment plan and take necessary steps to protect patients from harm (eg, by limiting the nature or extent of their practice for a period of time). This would largely restrict notifications to situations where a practitioner is unable or unwilling to comply with an appropriate management plan and may therefore encourage help-seeking behaviour among practitioners with health concerns.
Finally, regulators, practitioner health programmes, educators, insurers and professional bodies should work together to ensure that mandatory reports result in a fair, sensitive and timely response. Concerns that the regulatory response to mandatory reports is slow, stressful and unpredictable currently limit the willingness of Australian health practitioners to report impaired practitioner-patients. Little is known about the experiences of practitioners who have been subject to a mandatory report or the extent to which different regulatory responses may either exacerbate or help address health impairments. Greater transparency around likely outcomes of a report—as provided for example by the Legal Services Board in Victoria—combined with a more supportive and streamlined regulatory process would benefit practitioners, reporters and members of the public who may otherwise be exposed to a risk of harm.
In combination, these three measures may bolster the public protection offered by mandatory reports, reduce the need to breach practitioner-patient confidentiality and help align the law with the loyalty that practitioners feel to support, rather than punish, their impaired colleagues.
