The Conversation (Au and NZ) – By Bill Madden, Adjunct Fellow, School of Law & School of Medicine, Western Sydney University
This leads many to wonder whether our health regulations are sound enough to protect patients. We do have a national health regulator that usually operates effectively, but it currently doesn’t have all the data it needs to make good judgements on professional negligence.
Who is our regulator?
Our national health regulator, the Australian Health Practitioner Regulation Agency (AHPRA), has been operating nationally for almost ten years. Prior to that there were individual systems in each state and territory, but no national system.
AHPRA now administers a national registration and accreditation scheme for health practitioners, extending to 15 national boards that also play a role in maintaining standards in health care.
Medical practitioners, nurses, midwives and pharmacists are of course covered. Perhaps less well known are the boards for Aboriginal and Torres Strait Islander health practice, Chinese medicine, chiropractors and osteopaths. In all there are about 700,000 registered health practitioners and about 150,000 registered students.
But AHPRA not only registers health practitioners, it also has a “disciplinary” role – though not for all states. In New South Wales, for example, that disciplinary role is performed by the Health Care Complaints Commission, which cooperates with AHPRA.from www.shutterstock.com
Practitioner performance and conduct
Recognition of appropriate qualifications for practitioners and their registration is unfortunately not enough to guarantee highest-quality health treatments. The performance or conduct of registered health practitioners sometimes requires “disciplinary” action by AHRPA or the state-based health complaints bodies.
Recent disciplinary matters cover many health services, as can be seen from the NSW Health Care Complaints Commission website. Examples include a pharmacist involved in the illegal supply of prohibited drugs, a doctor engaged in inappropriate “off-label” prescribing of ketamine and his failure to maintain adequate medical records, and a psychologist providing an excessive number of treatment sessions at an excessive cost.
Similar (and arguably greater) problems may arise in relation to the provision of health-related services by people who are not registered health practitioners. The NSW Health Care Complaints Commission recently issued a public warning based on its concerns about unsafe practices involving subdermal (under the skin) implants inserted for “extreme” body modification purposes, such as horns and crowns.
Minimising the chance of future harm
It’s been recognised for some time that there may be a problem with repeat offenders putting the public at risk. A consultation paper was recently released by the Council of Australian Governments health council with a view to enhancing the powers of AHPRA, to keep the national law up to date and fit for purpose.
The paper notes there are increasing expectations (from governments and the community) that the national boards, such as the Medical Board of Australia and the Nursing and Midwifery Board, monitor and intervene early where a practitioner’s practice presents a risk to public health and safety.
Accurately predicting future risk requires all useful information about past and present practice issues to reach AHPRA and the national boards. At the moment, AHPRA and the national boards do not have information about compensation claims made against health practitioners.
So one enhanced power raised for discussion in the consultation paper is the compulsory reporting of compensation claim data. The national law would have to be amended to impose an obligation to report professional negligence settlements and judgements to AHPRA. Such an obligation might be imposed on a practitioner personally, and/or on the practitioners indemnity insurer.
One example of a potentially reportable judgement might be a recent matter where a medical practitioner was held liable for delaying the diagnosis of possible chronic renal disease. While such publicly-available judgements could be located by AHPRA, confidential settlements cannot.
Establishing AHPRA was a sensible step. While not perfect, it has been working well in conjunction with the national boards. But there is room for improvement.
In the modern world we rely heavily on data, which makes it difficult to argue against the compulsory reporting of claims data as a new power for AHPRA to enhance its capacity to protect the public. This might be of particular value in relation to health practitioners who appear to be involved more often in compensation claims, such as those in cosmetic surgery.– Who is our health regulator, AHPRA, and does it operate effectively?