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New guidelines are coming for mandatory notifications

21 February 2020

From March 2020, new guidelines will come into force for mandatory notifications to AHPRA on concerns about a registered practitioner. Dr Kiran Keshwara, dentolegal consultant at Dental Protection, looks at what these mean for you

If you are concerned about another registered practitioner, mandatory notifications are there to be made by registered health practitioners (and their employers) to protect the public from the risk of harm.

The threshold for risk to the public that AHPRA places on the notification is dependent on the relationship between the person making the mandatory notification and the person who is the subject of the notification. People that can make a mandatory notification are either:  

• a treating practitioner (has become aware of a concern while treating the person)
• a non-treating practitioner (for example a colleague)
• an employer.

Most Dental Protection members would come under the category of non-treating practitioners or employer. Practitioners in Western Australia are exempt from the requirement to make a mandatory notification if that practitioner is a patient of theirs.

What triggers a mandatory notification?

The four main areas of concern discussed in detail below are:

• Impairment that places the public at substantial risk of harm – a physical or mental impairment, disability, condition or disorder (including substance abuse or dependence) that detrimentally affects or is likely to detrimentally affect the person’s capacity to practice.
• Intoxication while practising.
• Significant departure from accepted professional standards that places the public at risk of harm.
• Sexual misconduct.

Prior to making a mandatory notification, it is important to form a “reasonable belief” – this means you need to have direct knowledge, for example having witnessed the behaviour and not heard rumours or have a suspicion, about a practitioner. If someone else has directly witnessed concerning behaviour, they should be encouraged to consider whether they should make the notification instead.

Impairment

A health condition that is not likely to have a detrimental effect on a practitioner’s ability to practise their profession is not an impairment. For example, if a dentist is taking time off work for sick leave, or has appropriately modified their practice so that they do not place the public at risk, there is no requirement to notify them to AHPRA.

Case example

Dr Jones has a tremor for which he is undergoing treatment. He takes time off and when he returns to practice, he no longer performs any procedural work. This would not trigger a mandatory notification.

Intoxication

Whether a person has taken drugs or alcohol, if they are intoxicated and practising a mandatory notification can be triggered.

Significant departure from accepted professional standards

This is behaviour or treatments that are likely to place the public at risk and would be obvious to a reasonable practitioner. Provision of different types of treatments or innovative practice that meets accepted practice and is not placing the patient at harm is not a significant departure from accepted professional standards. Whether a mandatory notification has been triggered will depend upon the person making the notifications and their understanding of the code of conduct and guidelines.

Sexual misconduct

This includes:

• Sexual activity with a current patient
• Making sexual remarks
• Touching in a sexual way
• Touching in an intimate area without clinical indication
• Sexual behaviour in front of a patient.

Any sexual activity with a patient would be deemed to be sexual misconduct even with the patient’s consent. This is because of the power imbalance between a practitioner and patient. Sexual activity with former patients may be sexual misconduct depending on the patient’s vulnerability, age, capacity, how the sexual activity was established (for example, did the practitioner use information gained during their treatment of the person to contact a patient and start sexual activity), the extent of the professional relationship (the length of time the person was a patient) and how long ago the practitioner–patient relationship ended. 

Exemptions from mandatory notifications

People exempt from making a mandatory notification are:

• Employed or engaged by a professional indemnity insurer, such as the dentolegal consultants at Dental Protection
• Providing advice about legal proceedings
• Members of a quality assurance committee, council or other similar body
• Reasonably believing someone else has already made a notification about the same concern.

How to make a mandatory notification

A mandatory notification can be made to AHPRA via the ahpra.gov.au website or by calling them on 1300 419 495. Anyone making a notification in good faith is protected from civil, criminal and administrative liability, including defamation. However, if the notification is found to be vexatious or not in good faith, the notifier can be subject to regulatory action, such as a caution.

The AHPRA guidelines on mandatory notifications is an important guide to when and how notifications need to be made and has useful flowcharts that will help you determine whether a mandatory notification has been triggered.

You can also call Dental Protection to discuss your concerns about a fellow practitioner so that we can discuss the details with you and advise whether a mandatory notification should be made.

© 2019 The Medical Protection Society Limited

DPL Australia Pty Ltd (“DPLA”) is registered in Australia with ABN 24 092 695 933. Dental Protection Limited (“DPL”) is registered in England (No. 2374160) and along with DPLA is part of the Medical Protection Society Limited (“MPS”) group of companies. MPS is registered in England (No. 00036142). Both DPL and MPS have their registered office at Level 19, The Shard, 32 London Bridge Street, London, SE1 9SG. DPL serves and supports the dental members of MPS. All the benefits of MPS membership are discretionary, as set out in MPS’s Memorandum and Articles of Association. “Dental Protection member” in Australia means a non-indemnity dental member of MPS. Dental Protection members may hold membership independently or in conjunction with membership of the Australian Dental Association (W.A. Branch) Inc. (“ADA WA”).

Dental Protection members who hold membership independently need to apply for, and where applicable maintain, an individual Dental Indemnity Policy underwritten by MDA National Insurance Pty Ltd (“MDA”), ABN 56 058 271 417, AFS Licence No. 238073. DPLA is a Corporate Authorised Representative of MDA with CAR No. 326134. For such Dental Protection members, by agreement with MDA, DPLA provides point-of-contact member services, case management and colleague-to-colleague support.

Dental Protection members who are also ADA WA members need to apply for, and where applicable maintain, an individual Dental Indemnity Policy underwritten by MDA, which is available in accordance with the provisions of ADA WA membership.

None of ADA WA, DPL, DPLA and MPS are insurance companies. Dental Protection® is a registered trademark of MPS.