Resources – helping you understand mandatory notifications

What is a mandatory notification and what changes have come into effect?

Under the National Law¹, certain groups must make mandatory notifications about practitioners when their health, conduct or performance poses a risk to the public. There are four concerns that may trigger a mandatory notification. Depending on the type of concern, you must assess the risk of harm to the public when deciding whether to make a notification. The four concerns are:

• impairment
• intoxication while practising
• significant departure from accepted professional standards, and
• sexual misconduct.

Groups and individuals who may be required to make mandatory notifications are:

• treating practitioners (i.e. you become aware of the concern while treating the registered practitioner as your patient)
• non-treating practitioners (e.g. colleagues who are registered practitioners)
• employers of practitioners, and
• education providers (only in relation to registered students and impairment).

In early March 2020, changes will come into effect raising the threshold for when treating practitioners are required to make a mandatory notification in relation to impairment, intoxication or practice that significantly departs from accepted professional standards. However, a lower threshold for reporting applies for sexual misconduct. With the exception of sexual misconduct, a mandatory notification by a treating practitioner about their practitioner-patient is required only when there is a substantial risk of harm to the public. This is a very high threshold for reporting and is likely to be infrequent.

The changes only apply to when a treating practitioner must make a mandatory notification. There is no change to the reporting threshold for when non-treating practitioners or employers or education providers must make a mandatory notification.

To help explain the requirements for making a mandatory notification under the National Law, National Boards and Ahpra have developed Guidelines: Mandatory notifications about registered health practitioners and Guidelines: Mandatory notifications about registered students to help explain the reporting requirements, who has to notify us and how to do this. Please read these to find out more.

How are mandatory notifications managed by Ahpra?

A mandatory notification is managed by Ahpra in the same way as other notifications. For more detail on the notifications process, see Concerns about practitioners on the Ahpra website.

Notifications about students are managed in the same way as notifications about practitioners, so students should also refer to this information.

Will I be penalised for not making a mandatory notification?

The mandatory notification obligations are intended to protect the public and public safety is our first priority. Notifying when you are required to is also an important ethical obligation.

If a health practitioner fails to make a mandatory notification it may be a breach of professional standards and there are other possible consequences for employers and education providers. While it is not common for action to be taken, you must make a mandatory notification when you believe the threshold is met.

We understand that deciding whether to make a mandatory notification may be a difficult decision and requires careful consideration of the relevant risk factors. A mandatory notification should not be made based on a fear of a penalty for not notifying. Mandatory notifications should only be made when you think the threshold for notifying is met.

If in doubt, we encourage potential notifiers to seek advice. You can speak to your insurer, legal advisor, or professional association. You can also call Ahpra on 1300 419 495 for clarification or to seek more information about making a notification.

¹ The Health Practitioner Regulation National Law Act, as in force in each state and territory

Do I need to make a mandatory notification?

The National Boards and Ahpra have developed guidelines and other resources to help you decide whether you need to make a mandatory notification.

After reading this information, if you are unsure about whether to make a mandatory notification, you may wish to seek advice from your insurer, legal advisor, or professional association on specific circumstances.

You can also find more information about raising a concern by calling Ahpra on 1300 419 495.

How do I work out whether I’m a treating or a non-treating practitioner?

If you have treated another registered health practitioner as a patient, it is important to clarify if you are still in a treating relationship with the practitioner-patient. The circumstances for making a mandatory notification are more limited for a treating practitioner. This is to give a practitioner-patient the confidence to seek help if they need it without undue concern about a mandatory notification.

A treating practitioner is a practitioner who, while treating another practitioner, becomes aware of information that may trigger a mandatory notification. That is, the information is obtained while treating the patient. If you become aware of information about a practitioner-patient outside of the treating context, then the mandatory notification obligations of a non-treating practitioner may apply to you.

The Guidelines: Mandatory notifications about registered health practitioners set out information about who is a treating practitioner or non-treating practitioner for the purposes of a mandatory notification.

I am a member of a healthcare team who is treating a practitioner-patient, do I need to notify?

If you are a treating practitioner as part of a healthcare team, you should communicate with the other treating practitioners in the team to discuss and seek advice about whether a mandatory notification is required and to find out if anyone else has made (or plans to make) a notification. If no-one else has made a mandatory notification, then you would be obliged to make one if the threshold for mandatory reporting is met. If another treating practitioner has made a mandatory notification, then you do not have to make one.

I am a preceptor or supervisor in a clinical setting, do I need to notify?

Yes. If you are a registered practitioner, you are required to apply the mandatory notification guidelines relevant to registered practitioners or registered students.

Are registered practitioners employed by an indemnity provider exempt from notifying?

There are exemptions for registered health practitioners employed by a professional indemnity insurer in certain circumstances. The exemptions are set out in the National Law and the Guidelines: Mandatory notifications about registered health practitioners and Guidelines: Mandatory notifications about registered students.

Non-disparaging clauses in resignation agreements do not exempt someone from needing to make a mandatory notification.

As a treating practitioner do I have to treat a practitioner-patient different from other patients?

No. You are not expected to treat a practitioner-patient different to how you would treat other patients.

The role of a treating practitioner is to provide clinical care and treatment to practitioner-patients.

Mandatory notification requirements for a treating practitioner only arise from concerns you become aware of while providing treatment.  

I am a treating practitioner, can I take into account strategies implemented to mitigate risk?

Yes. A treating practitioner can take into account strategies put in place by the practitioner and/or the employer that reduce the risk of harm to the public.

A treating practitioner only needs to make a mandatory notification in relation to a practitioner-patient’s impairment, intoxication or departure from accepted professional standards if this is placing the public at substantial risk of harm. This is a higher threshold for reporting than non-treating practitioners and employers.

The National Law and guidelines set out specific considerations for treating practitioners in relation to impairment. Additional factors to consider include circumstance, practice context, controls such as oversight and incident reporting, and other arrangements can affect the level of risk –– and the need to report.

However, a mandatory notification may have to be made if the practitioner-patient:

• resigns or is practising in other workplaces where risk to the public is not being managed
• is not compliant with strategies and measures implemented to address risks and their health, conduct or performance continues to place the public at substantial risk of harm.

What if an employer has implemented strategies to mitigate risk?

Employers should always consider strategies to mitigate risk in the workplace in the case of poor performance or when a practitioner has an impairment.

Such measures may include a performance improvement plan that involves training, supervision and/or restriction of practice until competency is established or making changes to the workplace or employment (such as sick leave) to accommodate or manage the risk to the public that the impairment may create.

However, it is important that employers make a mandatory notification if they reasonably believe that a health practitioner has behaved in a way that constitutes notifiable conduct. This includes intoxication while practising, sexual misconduct in connection with practice, when the public has been placed at risk of substantial harm because of the practitioner’s impairment or where the public has been placed at risk of harm because the practitioner has practised in a way that is a significant departure from accepted professional standards.

Employers should also be mindful that the practitioner may be practising in other workplaces where any risk to the public is not being managed.

If a practitioner is not compliant with strategies and measures implemented to address risk and the threshold for making a mandatory notification is met, then an employer must make a mandatory notification.

Do I have to make a mandatory notification after a health practitioner resigns?

Yes. If you believe that the threshold for making a mandatory notification is met, you must make a mandatory notification even, if the employee has resigned.

Non-disparaging clauses in resignation agreements do not exempt someone from needing to make a mandatory notification.

If the behaviour or incident does not reach the threshold for making a mandatory notification, but you have significant concerns about the ongoing risk of harm to the public, you can consider making a voluntary notification.

How do registered students raise concerns about other students or practitioners?

Registered students are not required to make mandatory notifications about other students or practitioners. Students (like anyone) may make a voluntary notification if they have concerns about a practitioner or student.

Students can also raise their concerns with a person or organisation that has obligations to make a mandatory notification.

Which guidelines apply to health practitioners who are also studying?

A student is a person whose name is entered in a student register. If a registered practitioner is undertaking study in the same profession in which they are registered they are not registered as a student (for example an enrolled nurse studying to be a registered nurse), and the Guidelines: Mandatory notifications about registered health practitioners apply.

If a registered practitioner is undertaking study in a different profession than the profession in which they are registered, they are entered as a student in the student register (for example a dentist studying to be a medical practitioner). Therefore, if the identified concern is in relation to practice as a student, the Guidelines: Mandatory notifications about registered students would apply.

Which guidelines apply to a person with provisional registration?

For the purposes of mandatory notifications, a provisionally registered practitioner is a registered practitioner and not a student. Therefore, the Guidelines: Mandatory notifications about registered health practitioners would apply.

This also applies to a person who holds provisional registration as a psychologist and is undertaking a postgraduate approved program of study or internship.

When does a ‘substantial risk of harm to the public’ arise for students?

A mandatory notification is not required unless the student is undertaking clinical training.

If a student is not likely to have contact with the public in their clinical training in the foreseeable future, then there is minimal risk to the public arising out of clinical contact.

If the student is in contact with the public as part of their clinical training, or will soon have contact with the public, then, before making a notification, you must consider:

• whether there is a risk to patients or the wider community
• whether there is a substantial risk of harm, that is a real risk of a severe harm occurring
• whether the risk to the public can be managed through treatment or other strategies.

The Guidelines: Mandatory notifications about registered students set out factors that may assist you in assessing risk.

Is a mandatory notification automatically required for practitioners and students with mental ill-health resulting in a voluntary or involuntary admission? What about a drug affected admission/presentation or inpatient addiction treatment?

No, a mandatory notification is not automatically required for any of these scenarios.

A decision to make a mandatory notification should be based on the risk to the public and other risks set out in the guidelines about practitioners and the guidelines about students.

Is a mandatory notification automatically required for practitioners or students with an infectious disease performing Exposure Prone Procedures (EPPs)?

A person with an infectious disease (for example, a blood borne virus) who is performing EPPs does not necessarily require a mandatory notification.

A person who practises appropriately and safely in the light of their condition and complies with any registration standards or guidelines and professional standards and protocols would not trigger a mandatory notification.

A person who performs EPPs and does not comply with the relevant guidelines, standards or protocols may require a mandatory notification.

Do I need to make a mandatory notification about a practitioner intoxicated outside of work?

Intoxication outside of work does not trigger a mandatory notification unless:

• the practitioner has gone to work while still intoxicated, or
• the practitioner is on call. If a practitioner is on call, they are practising and should not be intoxicated.

What is the difference between intoxication and impairment?

Intoxication while practising is being under the influence of alcohol or drugs. ‘Drugs’ include illicit drugs and prescribed and over-the-counter medicines.

Impairment in the National Law is defined as 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 practise the profession.

Impairment is the only concern that may trigger a mandatory notification about a student.

Intoxication and impairment may both trigger a mandatory notification about a practitioner.

Intoxication is not necessarily an impairment.

Repeated intoxication may be an indication of an impairment.

If you are a treating practitioner, the circumstances for making a mandatory notification about practitioners intoxicated while practising are more limited than for employers and non-treating practitioners. Check the guidelines for more information.

What is a ‘significant’ departure from accepted professional standards?

The term significant is not defined in the National Law. Decisions about what is a significant departure should be made by applying your professional judgement.

Factors to consider include that a significant departure:

• is serious, not slight or moderate 
• would be obvious to a reasonable practitioner.

Do I need to make a notification about a practitioner using innovative practice?

A mandatory notification would be required only in circumstances where a practitioner’s practice is a significant departure from accepted professional standards that places the public at risk of harm (or substantial risk of harm for treating practitioners).

Factors relevant to assessing the need to notify may include, practice context, controls such as oversight, incident reporting, attitude towards compliance with professional standards, and extent of harm.

Who can identify practice outside of accepted professional standards?

The National Law requires non-treating practitioners and employers to make a mandatory notification about significant departures from accepted professional standards that place the public at risk of harm (or substantial risk of harm for treating practitioners).

Although a practitioner in the same profession or specialty may be in the best position to identify a significant departure from accepted professional standards, a practitioner from another profession or specialty may also be able to identify this, such as when:

• the breach is obvious, for example, falsifying informed consent in patient medical records
• the practitioner is part of a healthcare team where other members of the team can identify a breach of standards as the professions work together closely.

An employer may also receive information from a colleague or supervisor of a practitioner based on which they can form a reasonable belief that there is a significant departure from accepted professional standards. Employers should ensure that they do not use a mandatory notification as a performance or risk management tool.

What is substantial harm?

The term substantial harm is not defined in the National Law. Decisions about risk of substantial harm should be made by applying your professional judgement.

Factors to consider include that a substantial harm is:

• severe or significant in size, it is not trivial
• it has occurred or is likely to occur
• based on knowledge, not guesses or speculation.

The type of harm may also be relevant, for example an injury to health or safety is more likely to result in a substantial harm than an economic injury.

To be substantial, injury may involve ‘causing severe harm to a small number of people’ or a ‘small harm to many people’.

Should all sexual misconduct be reported?

Yes. Sexual misconduct is:

• in connection with the practice of the practitioner’s health profession, and
• with people under the practitioner’s care or linked to the practitioner’s practice of the health profession.

What is meant by ‘might’ engage in sexual misconduct in the guidelines?

The National Law requires a treating practitioner to make a mandatory notification if they think there is a risk of sexual misconduct by the practitioner in the future.

For example, a practitioner discloses a detailed plan to engage in grooming conduct with a patient.

Grooming is a process that involves developing a relationship with a person by building trust, often with gifts or promises, and the groomer (practitioner) asking for something in return which leads to sexual misconduct.

Can you form a reasonable belief if you have not directly witnessed the behaviour or incident?

You generally need direct knowledge (not just a suspicion) of the incident or behaviour that led to a concern to form a reasonable belief. As a practitioner or employer, you are most likely to form a reasonable belief when you directly observe the incident or behaviour.

If you do not have direct knowledge, it is best to encourage the person with the most direct knowledge of the incident or behaviour to consider whether to make a notification themselves.

However, in some circumstances if you have not directly witnessed the behaviour or incident but have received information from a reliable and trustworthy source, you have objectively assessed all surrounding circumstances, and your belief is well-founded given the facts and circumstances (not just suspicions), then you are able to form a reasonable belief.

For example, a ‘reasonable belief’ might be formed when:

• a patient or client states they have been in a sexual relationship with a health practitioner who was also their treating practitioner
• a student on a placement states that the practitioner fails to maintain adequate infection control processes and procedures (for example failing to sterilise reusable instruments and reusing single use items).