Choosing a new doctor? Their sexual misconduct may soon be on the record

Boundary violations cover a range of behaviours, including innuendo and intrusive questions. Ground Picture/Shutterstock^[10]

The Medical Board of Australia’s guidelines for sexual boundaries^[11] describes how boundary violations breach patient trust, undermine patient safety, and erode public confidence in the medical profession.

As much^[12] research^[13] indicates, patients who are violated while seeking health care may endure^[14] profound distress and experience lifelong trauma.

Read more: A doctor's sexual advances towards a patient are never ok, even if 'consensual'^[15]

How common are boundary violations?

Research with patients^[16] indicates boundary violations in health care are^[17] under-reported^[18].

Still, Australia’s national regulator of health practitioners, known as Ahpra, received^[19] 841 notifications about 728 registered practitioners concerning boundary violations in 2022-2023. This is an increase of more than 220% from 2019-2020.

Of these notifications, 359 related to medical practitioners (including psychiatrists), while 215 related to nurses and 120 to psychologists.

Independent analysis of Australian tribunal cases for boundary violations indicates between roughly 65% and 80%^[20] of those accused are male.

Read more: Rape, sexual assault and sexual harassment: what’s the difference?^[21]

Why now?

As reported boundary violations have surged, public interest in the issue and its impacts has sharpened.

Media reports have described practitioners engaged in exploitative sexual^[22] relationships^[23], as well as inappropriate touching^[24] and physical examinations^[25].

Meanwhile, public inquiries have spotlighted the regulator’s role and responsibilities.

For instance, Tasmania’s inquiry^[26] into child sexual abuse examined evidence^[27] of Ahpra’s response to sexual abuse by a paediatric nurse^[28]. The National Health Practitioner Ombudsman^[29]’s review^[30] found protections for complainants should be strengthened.

At the same time, several^[31] rigorous^[32] Australian^[33] studies^[34] have highlighted regulatory weak spots and proposed options for reform.

Here is what is on the table.

1. More public information about past violations

This proposed reform would allow Ahpra to disclose the “full regulatory history” of any health professional found guilty of professional misconduct for sexual violations in a civil tribunal or found guilty of sexual offences in a criminal court.

This would raise “red flags” on the public register about certain practitioners, which a patient could access.

Currently, regulatory impositions – such as practice conditions, reprimands, suspensions or deregistrations – are recorded on the register but usually removed once they lapse or expire.

2. Consistent reinstatement of deregistered practitioners

This seeks to harmonise across the country how deregistered health practitioners are reinstated.

Currently, only New South Wales law requires disqualified health practitioners to obtain a “reinstatement order^[35]” from a civil tribunal before applying to the relevant health profession council for reinstatement. The tribunal’s deliberations are heard in open hearings, its reasons and decision published to the public, and in turn may be reported by the media and read by patients.

Elsewhere, the state health practitioner boards typically reinstate practitioners without any publicly available decision, or the reasons behind the decision.

3. Banning non-disclosure agreements

The 2022 independent investigation into cosmetic surgery practitioners^[36] in Australia revealed some doctors who resolved disputes privately with aggrieved patients had used non-disclosure or confidentiality agreements, presumably to shield themselves from liability.

While such agreements would likely^[37] be unenforceable^[38], they may lead patients to falsely believe they are legally bound to silence.

This proposed reform seeks to prohibit health practitioners using non-disclosure agreements to eliminate any chance they might stop or dissuade patients from reporting misconduct.

Proposed changes would ban health practitioners from trying to stop patients from reporting them. KellySHUTSTOC/Shutterstock^[39]

What would the proposed changes mean?

Many publicised^[40] boundary violation cases^[41] involve practitioners who have been reinstated after disqualification for previous misconduct. This includes where they have changed their names^[42].

Currently, many patients who have been harmed by serial offenders have no way of knowing a practitioner had been previously sanctioned for the same or similar misconduct.

Data on repeat offending are patchy^[43]. However, analysis^[44] of the available Australian data indicates repeat offending is “the norm rather than the exception^[45]”.

While some health practitioners will see these reforms as oppressive or punitive, only those found guilty in an open tribunal or court of the most serious professional misconduct for boundary-crossing transgressions or sexual crimes would be affected.

While promising, the reforms are not laid in stone. Public consultation is now underway^[46] until February 19.

Read more https://theconversation.com/choosing-a-new-doctor-their-sexual-misconduct-may-soon-be-on-the-record-223082