Latest correspondence to Senator Rennick on COVID-19 vaccinations

14 Jan 2022

Senator Gerard Rennick has written to us again about Ahpra and the National Boards’ position on COVID-19 vaccinations and related matters. We are sharing our response to Senator Rennick to clarify the facts and our position.

Our response to Senator Rennick’s initial correspondence was published on 23 November 2021.

6 January 2022

Senator Gerard Rennick
Senator for Queensland

Via email: senator.rennick@aph.gov.au

Dear Senator Rennick

COVID-19 vaccination and related matters

Thank-you for your letter dated 23 December 2021 which contains a range of questions and comments regarding our approach to regulating practitioners through the global pandemic.  In this response I provide further information to that provided in Ahpra’s correspondence of 23 November 2021.  For completeness, the information provided in this response should be read along with our previous response.  I hope the following information is useful in clarifying both the facts and our approach to regulating practitioners through the pandemic.

Practitioners providing advice and seeking informed consent

In our previous letter to you, we set out our expectations of registered health practitioners when providing information and treatment to the public during the pandemic.  This includes when a practitioner seeks the informed consent of a patient to proceed with treatment.  With this in mind, we again draw your attention to:

• our COVID-19 vaccine position statement which is consistent with the public health approaches being taken in all jurisdictions, and
• our approach to practitioners who conscientiously object to COVID 19 vaccination. The published vaccine position statement includes information for practitioners who conscientiously object to assist them to meet their obligations as a health practitioner.

Each of the 15 National Boards have a Code of Conduct in place which sets out what good practice involves when registered practitioners seek to obtain informed consent from their patients.  For example, section 4.5 of the Medical Board of Australia’s Good medical practice: A code of conduct for doctors in Australia covers the requirements of doctors in obtaining informed consent, as does section 3.5 of the Pharmacy Board of Australia’s Code of conduct for pharmacists.  These expectations of registered health practitioners are not new and predate the COVID-19 pandemic.

At all times, Ahpra and National Boards expect health practitioners to use their professional judgement and the best available evidence in practice.  This includes when providing information to the public about public health issues such as COVID-19 and vaccination, including for the purposes of obtaining informed consent. When advocating for community and population health, health practitioners must also use their expertise and influence to protect and advance the health and wellbeing of individuals as well as communities and broader populations.

Ensuring our advice puts the safety of the public first and is up to date

In your letter, you have queried the basis for our advice to practitioners that promotion of anti-vaccination material or health advice that contradicts the best available scientific evidence or undermines the national immunization campaign is not supported by National Boards.

The safety of the public is our first priority during the COVID-19 pandemic.  Ahpra and National Boards are in regular contact with agencies and bodies with recognised lead roles in providing advice on the management of COVID-19, such as the Therapeutic Goods Administration, ATAGI, the Australian Commission for Safety and Quality in Health Care, and Commonwealth, State and Territory Health Departments.  The advice from these bodies helps to ensure that our regulatory advice to practitioners remains consistent and based on the best available evidence regarding the pandemic.  When the advice from these bodies changes, we will consider what advice to practitioners may also need to change to ensure it stays up to date and prioritises public safety.

The statutory authority of Ahpra and the National Boards

Your letter asks about our statutory authority to take regulatory action regarding registered health practitioners, what actions could be taken and what standards and guidelines are followed when regulatory action is being considered.

Our legislated powers to regulate health practitioners are provided under the Health Practitioner Regulation National Law (commonly known as the National Law), that is in force in each state and territory. You can find links to this legislation here. Section 178 (2) of the National Law sets out what action a National Board may take where it reasonably believes that the performance or conduct of a registered health practitioner is not satisfactory or a health practitioner has an impairment.  A copy of this section is provided in an appendix to this letter.  These actions include (but are not limited to):

• caution the registered health practitioner
• accept an undertaking from the registered health practitioner
• impose conditions on the practitioner’s registration (for example, require the practitioner to complete specified education or training, or to refrain from doing something in connection the practitioner’s practice)
• refer the matter to another entity (such as a State or Territory based health complaints entity) for further action.

Please note that Ahpra does not directly deal with specific concerns about the conduct, health or performance of registered health practitioners in NSW, and in Queensland we only deal with those matters referred to us by the Office of the Health Ombudsman.

As we have previously stated, neither Ahpra nor the 15 National Boards have any legal powers to ‘deregister’ a registered health practitioner. In circumstances where this is being proposed by a Board, cancellation of registration can only be a decision of a state / territory tribunal or a Court.

We have a comprehensive and publicly available regulatory guide on our website that sets out how National Boards and Ahpra manage notifications that are made concerning health, performance and conduct issues of registered health practitioners.  We also have more information on the notifications process on our website.

We note but do not agree with your view that our expectations that practitioners act according to the best available scientific advice and consider the safety and well-being of patients in their practice may be a violation of the Australian Constitution.

The comments attributed to Mr Brett Simmonds in our joint statement with National Boards of 9 March 2021 are in his capacity as the Co-Chair of a Forum of Chairs of all 15 National Boards (Mr Simmonds is also Chair of the Pharmacy Board of Australia).  His comments are in line with both his responsibilities as the Co-Chair of this Forum and as Chair of a National Board.

I hope this information has been helpful in addressing your questions. I note that you have published your correspondence with me on your website. I would be very happy for you to publish my response as well.

Thank you for raising this matter with me.

Yours sincerely

Ms Kym Ayscough

Acting Chief Executive Officer