Wed Feb 8

How can the health regulator better protect patients from sexual misconduct?

Written by: Bill Madden, Adjunct Professor, Australian Centre for Health Law Research, School of Law, Queensland University of Technology

This week’s ABC Four Corners investigation revealed the Australian Health Practitioner Regulation Agency (Ahpra), or tribunals determining such complaints, allowed a number of doctors sanctioned for sexual misconduct to resume practising.

The ABC suggests almost 500 practitioners from a range of health professions, many of whom are doctors, have come to Ahpra’s attention for “boundary violations” since 2010. Boundary violations is the generic term for health practitioner sexual behaviour problems, the most serious of which is sexual assault of a patient.

According to the ABC, about one-third of the 500 practitioners remain registered with Ahpra or have been returned to the register.

Health Minister Mark Butler has ordered a rapid review ^[1] of whether recommendations from previous reviews have been properly implemented. He told the ABC ^[2]:

If that framework is falling short of protecting patient safety, then Australians rightly expect governments at all levels to work to strengthen it.

So what is the framework? What reforms have been recommended previously? And what needs to happen now to protect patients?

Breaching doctors’ code of conduct

The Medical Board of Australia, which governs doctors, has a code of conduct ^[4]. It tells doctors that good medical practice involves never using your professional position to establish or pursue a sexual, exploitative or other inappropriate relationship with anybody under your care. This includes those close to the patient, such as their carer, guardian, spouse or the parent of a child patient.

Even if a patient consents to sexual contact, the power imbalance between the patient and the health professional nevertheless means the sexual contact is probably inappropriate. More detail appears in guidelines ^[5] specific to sexual boundaries between doctors and patients.

Similar ethical guidance appears in the United Kindom ^[6] and New Zealand ^[7].

Doctor types on laptop next to a stethoscope

Doctors receive plenty of advice on what is and isn’t appropriate or ethical conduct. Shutterstock ^[8]

What happens if a clinician assaults a patient?

Mandatory reporting rules mean health professionals have an obligation to report sexual misconduct by their peers, generally to Ahpra. Failure to do so may itself be unsatisfactory professional conduct.

Of course, a patient may make a direct complaint of sexual misconduct to Ahpra or to local health-care complaints organisations.

Immediate action can be taken by Ahpra (or other bodies in New South Wales and Queensland) pending proceedings being brought against health practitioners in various tribunals across Australia.

Those proceedings will determine if a boundary violation occurred and provide for an appropriate response, which may prevent the health practitioner from practising or may impose lesser constraints, such as mentoring or education.

Patients may also report sexual assault (or other offences such as possession of child abuse materials) to the police, which may lead to criminal prosecution and possible imprisonment. Convicted health practitioners may then not be able to obtain clearance for working with children ^[10], making it very difficult if not impossible to continue work as a doctor or other health practitioner.

Patients suffering injury (usually mental harm) can seek compensation by suing the health practitioner and, in some cases, their hospital or clinic.

Patients rarely sue Ahpra for failing to take prompt and appropriate regulatory steps. There is perhaps only one reported case ^[11] involving Ahpra, which settled before a hearing.

What’s going wrong?

Patients and doctors say the process takes too long. Unsplash/Alexander Grey ^[12]

Incidents of health professionals sexually assaulting patients are of course deeply concerning. But whether anything is “going wrong” with the current regulatory system may be debated.

Patients in different states have access to different information about health practitioners – this could be improved. Patients and doctors have also reportedly complained that the processes of Ahpra, the tribunals or the courts can take “too long”.

Whether permitting some health practitioners to return to practice after boundary violations is appropriate requires careful scrutiny of the history of the complaint.

And as mentioned in the ABC program, health practitioners, patients and Ahrpa could well benefit from more research about what is and is not working to protect patients.

How can we better protect patients?

Ahpra, which only come into existence in 2010, has taken steps to improve how it responds to boundary violation complaints.

In 2016, the Medical Board of Australia and Ahpra commissioned an independent review ^[13] into the use of chaperones to protect patients. The aim of a chaperone is to have an independent person present to supervise a doctor. Unfortunately the review reported chaperones did not adequately protect patients:

Chaperone conditions are not wholly effective to prevent patients being exposed to harm and, in some cases, sexually assaulted. Their use is largely confined to private medical practice. The system relies on inadequately informed and trained chaperones, many in a conflicted situation by being employed by the practitioner they are to observe and report on.

Chaperones are still used today in some circumstances, but probably less often.

A National Health Practitioner Ombudsman ^[14] has been established to investigate complaints and make recommendations to improve the regulation of Australia’s health practitioners. Its work is probably not well known, but it does publish ^[15] its reports and submissions.

Ahpra has also recently invited feedback ^[16] from health practitioners, employers and members of the public on the future uses of the data it collects and stores. It sought views on publishing additional information about health practitioners and their practice on the public register. The feedback process finished only recently, so we do not yet know what the outcome will be.

For boundary violation cases, there may be an argument for more transparency. This would include information about the constraints imposed on health practitioners remaining publicly visible on the Ahpra public register permanently, even if the practitioner’s period of suspension, supervision, or the like, eventually lapses.

Perhaps transparency of information is an area for attention more broadly. The ABC reported that only in NSW is information made publicly available when suspended health practitioners apply to return to practice. Arguably, this should be rolled out to the other Australian jurisdictions.

If patient protection cannot be confidently maintained, especially with “repeat offender” health practitioners, we may see calls for a “one strike and you are out” provision. This would mean health practitioners found to have serious or multiple boundary violations may never be permitted to return to practice.

This would be a serious step, but further research on the operation of the current system may assist in assessing the merit of that type of law reform.