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Conditions – why do we get them and what happens if we don’t comply?

13 April 2021

Dr Ralph Neller, Dentolegal Consultant at Dental Protection, outlines the complaints handling process and how Dental Protection can assist


I’ve received a complaint from AHPRA – what happens next?

There is a specific complaints management process when a complaint is lodged with a state health department. Most states have a government agency that receives all healthcare-related complaints and they do the initial assessment. For ease of reference in this article, we will refer to these as the Complaints Commission. The preliminary assessment by these agencies is to determine if the complaint constitutes professional misconduct or unprofessional conduct by a health professional. As part of this assessment process, the practitioner will be given the opportunity to provide a written submission in response to the allegations.

When you receive a notification, you must immediately contact Dental Protection to report it and seek advice from a dentolegal consultant. You will need to provide a copy of the notification and associated documentation and a copy of the patient’s records. The dentolegal consultant will review the documents, then advise and assist you with your response to the allegations in the complaint.

Once submitted, the Complaints Commission will assess if the complaint constitutes professional misconduct. If it does, they will refer the matter to the Civil and Administration Tribunal. Referrals to the Tribunal are rare and only for very serious misdemeanours. However, the vast majority of complaints about healthcare fall into the category of unprofessional conduct and can be managed by the Complaints Commission; alternatively it will be referred to the Dental Board or Dental Council for further assessment, which for ease of reference in this article we will refer to as AHPRA.

What are the likely outcomes for a practitioner?

The first thing to remember is that the vast majority of matters are dismissed with no further action.  In other cases, the Complaints Commission may determine that the matter should be managed under their processes, so it will offer to mediate to achieve local resolution. This is a voluntary process, whereby the dental practitioner and patient negotiate a settlement. This is likely to include some form of compensation, such as a refund or reimbursement for costs associated with remedial treatment.

If the Commission refers the matter to the Dental Board, AHPRA will send an email to the practitioner to confirm that they have received the referral from the complaints commission and also provide an opportunity for the practitioner to send a supplementary submission. They will then assess whether the practitioner has provided safe, appropriate and quality treatment in accordance with accepted clinical standards. Sometimes AHPRA will seek additional information from the practitioner, as well as having the case reviewed by an independent practitioner. If this occurs it can delay the final decision; however, on most occasions, the practitioner will be notified of the decision within three months.

What are the possible outcomes from here?

These matters can be dismissed with no further action. However, should AHPRA determine that disciplinary action is required based on their finding of unsatisfactory professional conduct – ie the treatment provided was not of a standard equivalent to that of your peers of a similar level of experience – they can do any or all of the following:

  • Issue a caution
  • Accept undertakings
  • Impose conditions on your practice

If a caution is issued it should be understood that AHPRA considers your treatment substandard; but they are only issuing a warning and will not take any further action at this time. However, should a similar complaint be lodged in the future, then more severe disciplinary action will be taken. A caution is not put on the public register.

AHPRA may accept that you will voluntarily give an undertaking –for example, of further education to improve your practice.

If AHPRA is concerned that the treatment provided was seriously deficient, then they will impose conditions on your practice. The details of any conditions will be put on the public register, except those relating to health impairment. In these instances the existence of an undertaking is noted, but not the details.

What are the common conditions?

Conditions are imposed to ensure the practitioner has clear direction on the areas of dentistry that AHPRA considers need to improve.

Examples of conditions include:

  • Additional CPD
  • Audits – dental records and infection control
  • Working under supervision
  • Engaging a mentor
  • On-site performance review

What are the common problems in complying with these?

CPD – you are given a timeline to complete the required education. However, before doing any courses, you will need to provide AHPRA with a copy of the course outline and get their approval that it satisfies their requirements; this can be difficult and sometimes personalised courses have to be prepared. All CPD has to be funded by the practitioner. Once the additional CPD has been completed you are required to submit a reflective piece on what you have implemented in your practice to improve performance.

Audits – AHPRA may require you to pay for an auditor to audit your records or infection control, and this may have to be repeated several times depending on your level of compliance in meeting AHPRA’s standards. Alternatively, AHPRA may do random audits (ie unannounced).

Supervision – you will need to find a supervisor (plus a back-up) in the particular area of dentistry of concern. Unfortunately, supervisors can only be working with one practitioner at a time and this can limit availability. Working under supervision can be difficult, especially in times of COVID-19.

Mentoring can be as difficult as supervision, with the main difficulty finding a suitable practitioner as both supervisors and mentors must be approved by AHPRA from the outset.

Onsite performance review – AHPRA will appoint an independent practitioner to assess your clinical performance. This can be nerve-racking and disruptive to your practice.

What happens if I breach my conditions?

This is very serious. Sometimes it can’t be helped if courses are cancelled or postponed. However, should it occur, you must immediately contact AHPRA Monitoring and explain the situation. Usually they are understanding and an extension can be obtained. However, if conditions are perceived to have been deliberately breached, then AHPRA will have no hesitation issuing a Section 150 notice and conducting a hearing, which may lead to a period of suspension.

Can I get my conditions removed and if so, how?

Keep in contact with Dental Protection, and the dentolegal consultant who is assisting you, to let them know when you have completed all the requirements of your conditions. The dentolegal consultant will help you draft a letter to seek a review of the conditions, or complete any other relevant paperwork for your state or territory. Once AHPRA agrees that you have met all the requirements of the conditions, they will remove the details from the public register.

Throughout the process, your dentolegal consultant will remain on hand to provide advice and continuing support to you. If you have any similar concerns to those outlined in this article, don’t hesitate to contact Dental Protection on 1800 444 542.

For a more in-depth discussion with Dr Ralph Neller and Dr Annalene Weston on this topic, listen to our podcast episode “How to comply with Dental Board conditions, and what happens when you don’t”  available now.

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