May 4, 2015
By: Helen Turnbull, Avant Special Counsel – Professional Conduct
A GP admitted to professional misconduct after failing to make a mandatory notification of a colleague’s sexual misconduct. The case serves as a warning to doctors that failing to adhere to mandatory notification requirements can have serious personal and professional ramifications.
The decision is one of the first published decisions in Australia involving a doctor being subjected to disciplinary action due to failure to make a mandatory notification under the Health Practitioner Regulations National Law (ACT) Act 2010 after becoming aware of notifiable conduct.
The facts
In The Medical Board of Australia v Al-Naser [2015] ACAT 15, the Tribunal found that the GP’s colleague engaged in a sexual relationship with a patient for eight months in 2012. The respondent, a GP who owned the practice, was unaware of the relationship between their colleague and the patient until the patient disclosed the relationship to the GP owner during a consultation in late 2012.
The GP owner took over the care of the patient without disclosing the colleague’s affair to AHPRA. Subsequent consultations focused on the impact that the colleague’s affair had on the patient. During the final consultation, the GP owner prepared a mental health plan for the patient and, at the patient’s request, referred her to a psychologist who made the mandatory notification.
The GP owner also engaged in physical contact with the patient during her consultations and made comments of a personal nature regarding her looks and physical similarity to a former girlfriend.
Your mandatory notification obligations
Under the National Law a doctor has a mandatory obligation to notify Australian Health Practitioner Regulation Agency (AHPRA) when they have a “reasonable belief” that a doctor has engaged in ‘notifiable conduct.’
You have a mandatory obligation to report another doctor who has engaged in sexual misconduct with a patient under their care or who is connected to their practice. This obligation applies whether the patient has consented or not and irrespective of whether the patient initiated the sexual relationship.
Mandatory reporting not only covers sexual misconduct but also competence such as substandard practice which places the public at risk of harm. Doctors should only notify AHPRA if they have a reasonable belief. AHPRA’s Guidelines for mandatory notifications focus on serious instances of substandard practice or conduct by doctors, or impairment.
A reasonable belief requires a stronger level of knowledge than a mere suspicion. Generally it would involve direct knowledge or observation of the behaviour which gives rise to the notification. While you should treat all patient complaints seriously, you must have a ‘reasonable belief’ as to the credibility of the patient.
For example, in one case a patient was irritated that a GP would no longer perform house calls for her elderly mother and commented to the practice manager that the GP had slept with her in the surgery numerous times. The head of practice was unsure whether to report the GP and sought our advice. After investigating, the practice manager found that on the dates cited by the patient, the GP was on an overseas trip.
For more information on mandatory reporting requirements, visit Avant’s Health and Wellbeing website.
Professional misconduct: a serious breach
In this case, the GP owner clearly breached the mandatory notification requirements and admitted to professional misconduct. It was a clear decision that a doctor’s failure to mandatory notify can be seen as a serious breach of conduct.
The Tribunal endorsed the finding of professional misconduct and significant conditions were placed on his registration. The GP owner was referred to the Cognitive Institute’s Intensive Performance and Professionalism Series: Clinical Communication Programme and ordered not to have any actual or perceived role as a supervisor in any practice that he owns, or has an interest in or works in, for a period of two years.
The Tribunal also directed that the GP owner must have a mentor whom he meets with on a monthly basis for a period of 12 months to discuss any issues of clinical practice, medical ethics and cultural awareness. The mentor must also provide six monthly reports to the Medical Board of Australia.
As a result, the GP owner’s failure to notify of the colleague’s sexual misconduct has had a serious impact on both their reputation and medical practice.
Key Lessons
- • Do not immediately make a notification about a colleague simply because you are worried that if you don’t, you may face disciplinary action.
- • Do not act on your own, seek advice from Avant if you have concerns about a colleague and are considering a mandatory notification.
- • It is a serious step to make a mandatory notification. There is a high threshold to meet before you notify.
- • Before making a mandatory notification make sure you read AHPRA’s Guidelines for mandatory notifications.
- • You cannot make a mandatory notification of sexual misconduct simply based on gossip or innuendo.
- • If there is an admission from the doctor, then you must notify. If a patient complains that there has been a sexual relationship with your colleague, then look at all the evidence.
- • Do not use mandatory notifications as a pay-back against another colleague. You are not protected against vexatious claims.