Legal action

There were 348 notifications plus 10 compliance breaches (358 matters) open in the tribunal stage at 30 June, compared with 305 at the same time last year. Of the 141 matters closed at the tribunal stage in the year, nine matters were withdrawn or did not proceed because the practitioner was deceased or lacked capacity; or sanctions had been imposed on the practitioner because of another matter. Of the 132 matters decided by a tribunal, 100% resulted in some form of disciplinary action. This shows that National Boards continue to appropriately identify the thresholds for referring a matter to a tribunal to protect the public.

Of the 29 National Board matters decided by panels this year, more than 80% resulted in some form of regulatory action.

There were 106 appeals lodged nationally about decisions made by National Boards. The number of appeals lodged annually has increased significantly over recent years as follows: 106 appeals in 2019/20, 62 appeals in 2018/19, and 28 appeals in 2017/18. 

The majority of these related to the professions with higher regulatory decision volumes, such as medical practitioners (54) and nurses (21). There were 73 appeals finalised.

There were 72 appeals not yet decided at 30 June. 

Our National Legal Practice (NLP) continued to provide high-quality advice and service to Ahpra and National Boards. An important part of our regulatory work is in the responsible tribunals. For example, matters of note include, but are not limited to: 

• findings of professional misconduct in Board referrals involving: 
  • family violence offending, and other serious criminal offending 
  • sexual boundary breaches, and other general boundary breaches 
  • prescribing of ‘peptides’ or other drugs that are at risk of misuse/abuse, for non-therapeutic purposes 
  • failure to comply with conditions imposed on a registration by a Board or a panel 
• significant periods of disqualification in Board referrals involving: 
  • mismanagement and a failure to provide safe and effective nursing and midwifery care by a manager of maternity services (10 years) 
  • a practitioner who obtained registration because he or another person provided the Board with a document that was false or misleading in a material particular; made false statements about his surgical qualifications to a potential employer and the Australian Medical Council (AMC); and created a false email from the AMC verifying his surgical qualifications (eight years) 
• two appeal matters that examined a National Board’s power to take immediate action under: 
  • section 156(1)(a), despite an acquittal in associated criminal proceedings
  • section 156(1)(e), for conduct broader than the ‘example’ provided for in that section. 

In both matters, the responsible tribunal confirmed the National Board's decision to take immediate action. 

Ahpra’s Regulatory guide is an invaluable resource for Ahpra, National Boards, stakeholders, practitioners, legal service providers and members of the public wanting to understand the regulatory process under the National Law. 

We published 77 summaries of court and tribunal decisions about health practitioner regulation. These summaries provide practitioners with professional learning opportunities in their pursuit of safe and ethical standards of practice and behaviour, while helping patients know what to expect from a registered health practitioner under the National Law. 

Some of the unacceptable conduct displayed by the practitioners in the summaries included: breaches of professional boundaries, engaging in sexual relationship with patients, accessing child exploitation materials, inappropriate prescribing, false claims as a health practitioner, practising while registration was suspended, unsatisfactory professional performance, and falsifying records to gain registration.

Ahpra recorded 605 new criminal offence complaints. This is a growth of 9.8% in comparison to criminal offence complaints received in the previous year. 

Of criminal offence complaints received nationally, 68.1% related to concerns about alleged unlawful use of title and unlawful claims to registration. More than half of all new offence complaints are made about people who are not registered health practitioners or companies. 

This year 602 criminal offence complaints have been closed. This is a 25.2% increase in comparison to offence complaints closed in the previous year. 

At 30 June 2020, there were 232 criminal offence complaints under review, in comparison to 238 at 30 June 2019. 

There has been a number of significant prosecutions this year that demonstrate the importance of the criminal offence function for the protection of the public. 

Ahpra completed 11 proceedings in the courts for offences under the National Law across five jurisdictions. All prosecutions resulted in findings of guilt. One of these matters was pending appeal by the defendant at 30 June. These outcomes show that Ahpra continues to identify appropriate thresholds for referring offence complaints for prosecution to protect the public. 

A further 11 prosecutions and two appeals (including one from a matter determined in 2018/19) are ongoing before the courts at 30 June. 

While the restrictions imposed in response to the COVID-19 pandemic had some effect, the impact was fairly limited. With a history of working flexibly, our move to having the entire practice working from home went very smoothly. Staff adapted to the new way of working quickly, finding innovative ways to stay in touch with their colleagues and stakeholders. In addition, regular online briefings were held to ensure that all staff were aware of the impact of decisions in significant cases and the development of important opinions and advices. 

There were a number of external impacts during this time, including: 

• Tribunals across the country deferred face-to-face hearings or scheduled them as virtual hearings. A significant number of hearings were adjourned. The impact of this will likely be felt over the next six to 12 months as tribunals work to move through the deferred hearings. 
• Most Magistrates’ and Local Courts deferred face-to-face hearings. This move saw the adjournment of some criminal prosecutions that we had instituted. 
• Special arrangements had to be made for the execution of important legal documents – either being executed in rare personal meetings or done in accordance with the recently introduced legislative provisions allowing the remote witnessing of documents.