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30 Sep 2014

Laws that compel medical practitioner to report doctor-patients who may pose a public risk are counter-productive and should be changed, according to medico-legal experts.

As a review of national medical registration and accreditation standards led by former WA health bureaucrat Kim Snowball moves into high gear, a study of the mandatory reporting regime for health practitioners has concluded it is deterring doctors who need help from seeking care and potentially compromising patient safety.

Under the National Law, doctors in all states and territories except Western Australia are required by law to notify the Australian Health Practitioner Regulation Agency (AHPRA) if they believe a health practitioner they are treating has practised while drunk or on drugs, has engaged in sexual misconduct, has provided care in a way significantly at odds with accepted professional standards, or has an impairment that could put patient safety at risk.

In WA, there is an exemption from reporting doctor-patients with an impairment.

The mandatory reporting obligation was introduced late last decade following several high-profile cases in both Australia and overseas where doctors had harmed or endangered their patients, including Dr Jayant Patel in Bundaberg, Dr Graeme Reeves in Bega and Dr Abdalla Khalafalla in Mackay.

Associate Professor Louise Nash, of Sydney University’s Brain and Mind Research Institute, said that although mandatory reporting laws had been introduced with the aim of protecting the public, it was likely that they were having the opposite effect.

A/Professor Nash said the fact that mandatory reporting had been implemented as part of major changes to the regulation of the medical profession, including the introduction of a national registration system, meant it was very difficult to disentangle its specific impact.

But she told Australian Medicine that a recent beyondblue report had highlighted the danger that mandatory reporting laws would make it less likely that medical practitioners with problems would seek treatment, keeping their problems hidden and increasing the risk of patient harm.

In its report on mental health in the medical profession, beyondblue found more than a third of 12,252 doctors surveyed would be reluctant to seek help for mental health problems because of concerns it could have implications for their registration and right to practise, while more than a quarter expressed concern it might impair their career prospects.

A/Professor Nash said this was a striking finding that showed fears mandatory reporting laws were deterring doctors from seeking help were well founded.

It is this concern that has underpinned the AMA’s long-standing objection to the inclusion of treating medical practitioners in mandatory reporting requirements.

“It is critical that health practitioners are not deterred, for any reason, from seeking early treatment for health conditions,” the Association said.

Not only may mandatory reporting laws be counter-productive, they are also unnecessary, according to critics.

Both A/Professor Nash and the AMA said the evidence showed that the vast majority of doctors who posed a risk to patient safety were identified other than through mandatory reporting, and that the exemption provided for practitioners in WA had not compromised the protection of patients.

In her study, co-authored with WA MP Nick Goiran, University of Queensland general practice academic Margaret Kay and Avant Head of Advocacy Georgie Haysom, A/Professor Nash cited figures from AHPRA’s 2012-13 annual report showing that, of 4709 notifications received about medical practitioners, only 299 were mandatory reports, and just 10 came from a treating practitioner.

The AMA said a consultation paper prepared as part of the Snowball review found no evidence that the WA exemption for treating practitioners had impaired the ability of the Medical Board to protect patients, as had a study published in the Medical Journal of Australia which found 92 per cent of notifications were made by a practitioner’s colleagues or employer.

“The case has not been made that the mandatory reporting requirement on treating practitioners outweighs the need to ensure health practitioners seek early treatment for their health conditions,” the Association said.

A/Professor Nash said the Snowball review should consider bringing mandatory reporting laws in other states and territories into line with those in WA.

“Doctors who are unwell need to feel they can attend their treating doctor without the stumbling block of mandatory reporting,” she and her co-authors wrote. “Doctors have a right to a therapeutic relationship through which care will be provided. They have a right to confidential care without being concerned that they will be reported.”

A/Professor Nash said it was unfair that doctors in the rest of Australia were treated differently to those in WA.

“The continuing refusal by other jurisdictions to provide health professionals with the same authentic access to care for their own health is unjust,” her report said. “While it may be politically uncomfortable for other jurisdictions to revisit this, delay benefits no sector of society it potentially compromises patient safety.”

Adrian Rollins

Published: 30 Sep 2014