FAQ - Public statements (warnings)

The change to the National Law to allow National Boards and Ahpra to issue a public statement was agreed by all Australian Health Ministers following broad public consultation by Governments.

The change was passed by the Queensland Parliament, after it was debated as part of a Bill of legislative amendments.

Yes, Ahpra did targeted consultation on how we propose to implement this change and how we intend to use the power. The consultation paper was public and was published on our dedicated National Law amendments webpage. We provided the paper to more than 100 stakeholders that we thought were interested in how we were proposing to use this new power. We received 41 responses which suggests a strong interest.

We have also published a report on the consultation outcomes.

Prior to this, Governments publicly consulted on the proposal to make a change to the National Law to allow public statements to be issued by the National Boards and Ahpra.

If the matter involves a registered health practitioner, the National Board will make the decision.

In most other cases, such as when the relevant conduct occurs while the person is unregistered, Ahpra will be the decision maker.

All decisions are made in accordance with the National Law.

We take all concerns seriously and assess every notification (complaint) that is lodged with us on a case-by-case basis. It is not always necessary to issue a public statement about a concern that is raised with us, particularly if the risk is isolated or can be addressed using regulatory tools like taking immediate action to suspend a practitioner’s registration while we continue to investigate.

The decision to issue a public statement is based on the need to protect the public from serious risk when the threshold for using this power is met.

There are times when Ahpra and the National Boards need a way of warning the general public about a serious risk from an individual – either a registered health practitioner or a person who does not hold registration but is providing a health service. The National Registration and Accreditation Scheme exists to protect the public and that is our paramount obligation.

Before this change was introduced, there was no clear way for us to issue a warning to protect the public while we continued to take steps to assess and investigate a matter raising serious risks to the public.

We expect that – when it is necessary to issue a public statement to warn of a serious risk – the general public will:

• know about the risk
• understand why it is considered serious
• be able to take precautionary steps if needed
• feel confident to contact us if they are concerned that they have also been exposed to the serious risk posed by the registered practitioner or unregistered person.

Scenario example A: Major infection control, medication and record keeping issues

A notification (complaint) about a registered medical practitioner working from a home clinic is being investigated. A number of serious concerns have been raised, including that the doctor has failed to meet acceptable infection control standards, failed to store medications properly and safely, and proper records of patients and treatments have not been kept. The risks that are being considered is the potential for patients to have been administered expired vaccines and medications; potentially been exposed to a non-sterile environment and equipment during intimate examinations and procedures; and because of the poor record-keeping, there are patients have been exposed to these serious risks but cannot be contacted directly. The Medical Board of Australia decides that in addition to taking immediate action to suspend the doctor’s registration, it is necessary to issue a public statement to alert the public – and especially people who attended the home clinic – about these serious risks and to encourage them to take precautionary steps. The doctor is contacted and given the opportunity to respond to the matter before any statement is issued. A public statement is issued, and the investigation concludes with a referral of the matter to the state Tribunal for hearing.

Scenario example B: Fake practitioner seeing vulnerable patient

Ahpra receives multiple complaints about a person who is claiming to be a registered psychologist but is not registered and is not qualified. Ahpra informs the police and intends to prosecute the person for holding themselves out as a registered psychologist. In addition, Ahpra decides that it is necessary to issue a public statement. The risks that were considered include the risk that vulnerable people may have thought they were receiving advice from an appropriately qualified and experienced practitioner which may have prevented them from actually receiving the care they needed. It may take some time to identify every person that has been seen and, in fact, if proper records have not been maintained, it may be impossible. So, a public statement is the best way to inform people that they may have seen an unqualified and unregistered person and that they should instead seek assistance from an appropriately qualified practitioner at the earliest time.

The police charge the person with a number of offences, including claiming to be a registered psychologist. The person pleads guilty and is convicted in a magistrate’s court and sentenced to an intensive supervision order, he is fined and ordered to pay reparations to the victims. Without issuing a public statement, Ahpra would have been restricted to only informing victims after the prosecution was completed.

Scenario example C: Performance issue leads to immediate action suspension but public statement warning not necessary

Ahpra is notified by a public hospital employer, of a performance issue with a registered nurse who has made a medication error and then attempted to conceal the error by falsifying the medication chart. The notification is considered by the Nursing and Midwifery Board of Australia (the NMBA) and a decision is made to take immediate action to suspend the nurse’s registration.

The NMBA also considers if it is necessary to issue a public statement. The Board identifies that the matter is serious enough to warrant suspension, but the behaviour is likely isolated to the incident and if other patients have been affected the hospitals records management system would allow them to be identified. In this scenario, the suspension removes any ongoing risk and by working with the employer, we are able to manage any potential risk with other patients. In this instance the Board agree it is not necessary to warn the public by issuing a public statement.

We know that being the subject of a notification (complaint) can be distressing for practitioners. Making a public statement is not a decision that we take lightly. The power is exercised only in extraordinary circumstances where it is reasonably believed to be necessary to warn the general public about a serious risk.

The decision is always based on the need to protect the public from serious risk. We give the practitioner or unregistered person written notice outlining the reasons why we consider it necessary to issue a public statement and give them an opportunity to respond before a decision is made. We will make every effort to reach out to the registered practitioner or person via SMS to alert them to the written notice.

The potential impact on the registered practitioner or person is one relevant factor that the decision maker will take into account as part of this decision-making process. Ultimately, however, the decision to issue a public statement will always be based on the need to protect the public from serious risk. The public statement may be revised or removed if it is no longer reasonably believed to be necessary to protect public health or safety from a serious risk.

The making of a public statement potentially has a very significant impact upon the person who is named in the statement. Even the subsequent revocation of the public statement may not entirely address the impact upon a person and accordingly, the statutory provision sets a high threshold for the exercise of the power.

The decision-maker needs to form a reasonable belief that the legal threshold set out in the National Law has been met. The Regulatory Guide provides detail about this threshold. In summary, to determine whether or not the matter poses a serious risk to public safety and it is necessary to issue a public statement to warn people of the risk and any precautionary steps they may need to take, the decision maker will consider:

• the nature and seriousness of the person’s conduct, performance or health
• the impact on the person if the public statement was made and their response; but the protection of the public will be paramount,
• the registered practitioner or unregistered person’s reaction to any warning in respect of the conduct will be relevant to deciding whether a public statement is necessary and the form it will take;
• whether any state or territory health complaints entity or another body has already issued a public warning about the person or health services provided by the person
• whether any other regulatory action (such as immediate action) has been taken and whether that is sufficient to protect public health or safety.

The decision will be taken on a case by case basis.

A public statement will be published on the Ahpra website on the Public statements and warnings page .

If the statement is about a registered health practitioner, a link to the statement will also be included on the practitioner’s registration on the public register.

If the public statement is about a practitioner whose registration has been cancelled, or who is disqualified or prohibited, there will be a link to the statement from their listing on the Register of cancelled, disqualified and/or prohibited health practitioners.

When we publish the statement, it is considered to be made. Any revision to, or revocation of, the statement will also be made on the Public statements and warnings page .

Once a decision has been made that it is necessary to make a public statement to warn the general public about a serious risk, we will advise the person of the decision and when the statement will be published.

A public statement may be revised at any time and must be revoked if the grounds on which the statement was made no longer exist or never existed.

Ahpra and the National Bords will consider revoking the public statement either on the application of the relevant person, another person, or on their own motion.

If we need to revise or revoke a public statement, we will do so as soon as is reasonably practical.

We will alert the public of the revision or revocation in the same way as we did with the original statement.

The minimum 24-hour timeframe is about publishing the statement after the practitioner or person is given an opportunity to respond to a written notice and after a decision to issue a public statement has been made. The decision maker needs to weigh up the fact that the practitioner or person will need to get advice and support and respond to the notice, alongside the fact that there is a serious risk that needs to be addressed.

The National Law does not prescribe the wording for the public statement. The content of a public statement will vary from case to case, determined largely by reference to the identified serious risk and the level of information required to be provided to effectively address that risk.

In determining the content of a public statement, the decision maker will also take into account any submission made by the practitioner or person about the content and the fact that the relevant person may not yet have had the issues considered by an external tribunal or court.

A public statement sets out:

• the provision of the National Law under which it is being made
• the background to the public statement, including details of the conduct, performance or health that is reasonably believed to pose a serious risk
• the necessary actions that the public should take to protect themselves from the risk
• who members of the public can contact if they have any concerns.

Health complaints bodies in New South Wales, Queensland, South Australia, Victoria and Western Australia administer the National Code of Conduct for Health Care Workers. The code applies to health care workers delivering a health service and was introduced to strengthen regulation of unregistered health care workers. Ahpra has a strong working relationship with all health complaints bodies and if there is a situation where we are both considering the need to issue a public statement about an unregistered person; we will use our existing communication channels to make sure that the right regulatory body/bodies issue the statement.

In Queensland, which is a co-regulatory jurisdiction, all notifications and complaints are lodged with the Queensland Office of the Health Ombudsman (OHO) and the OHO decides whether to keep the matter or refer the matter to Ahpra or a National Board for action. The law for the OHO has also been changed to allow a public statement to be issued about a registered health practitioner who is practising in Queensland. Ahpra and the OHO have a formal joint consideration process that will be used as needed to make sure that the right regulatory body/bodies issue the public statement.

In New South Wales, which is a co-regulatory jurisdiction, all notifications about registered health practitioners practicing in that state are managed by the NSW Health Professional Councils and the NSW Health Care Commission. The Commissioner has, for some time, had the ability to issue a public warning and will continue to have this power for matters involving a registered health practitioner who is practising in New South Wales.