Disciplinary notations on the Australian Register of Medical Practitioners

One of the fundamental realignments that has occurred to the doctor–patient relationship is the capacity of patients to acquire information from the internet and, on the basis of it, interact with their practitioners in new and different ways. Some of the knowledge that is readily accessible is empowering; much of it requires discernment and knowledge to enable informed evaluation. An emerging role for medical practitioners is to mediate such information, contextualise it and interpret it for their patients.

One aspect of the information available in cyberspace is the ability of patients to access information about their health care providers. The national system of regulation for Australian medical practitioners (the National Law) — enacted by all states and territories (eg, the Health Practitioner Regulation National Law Act 2009 [Qld]; see http://www.ahpra.gov.au/Legislation-and-Publications/Legislation.aspx) — is part of the challenging process of change because it mandates publication of key outcomes from the disciplinary process on the Medical Register. Practitioners who are the subject of such information will need to develop strategies to explain and put it into perspective for their patients. The Federation of State Medical Boards in the United States makes available extensive information about doctors’ disciplinary status and about conditions on their practice,1 as does the General Medical Council in the United Kingdom.2 The international trend3 is in favour of increasing disclosure of such information by regulatory authorities.4

Performance and professional standards panels, and health panels convened by the Medical Board of Australia (the Board) have significant powers. An important change brought about by the National Law is that most of the “determinations” (sanctions) that are imposed by such bodies, other than reprimands and cautions, can only be by way of conditions on registration. Conditions include requirements to complete further education, undertake supervised practice, do or refrain from doing something, manage a practice in a particular way, or report to a specified person. External decisionmakers, generally tribunals, deal with more serious disciplinary matters. They can impose similar determinations, as well as fines, some additional conditions, suspensions and cancellations of registration.

Problematically, s 225(j) of the National Law requires the publicly accessible Register to include, for the first time, the fact that a practitioner has been reprimanded, but not the terms of or reason for the reprimand. No time frame for retention of such material on the Register (or even whether “old” reprimands should be included on the Register) is specified. Under s 226(3), the Board may decide to remove from the Register reference to a practitioner having been reprimanded “if it considers that it is no longer necessary or appropriate for the information to be recorded on the Register”. This could be interpreted as quite a low threshold and is a highly discretionary decision, potentially the subject of inconsistent implementation.

Section 225(k) requires recording any condition placed on registration, as well as details of any condition or undertaking entered into by the Board with a practitioner. Recording such conditions, when a stay has been ordered against their operation pending the hearing of an appeal, has proven inconsistent across Australia under the new law.

There is an important qualification to recording conditions. Under s 226(1), the Board can decide that a condition imposed or an undertaking accepted because the practitioner has “an impairment” (which is very broadly defined, and includes substance misuse) need not be recorded if “it is necessary to protect the practitioner’s privacy” and “there is no overriding public interest for the condition or the details of the undertaking to be recorded”. Otherwise, it must be recorded. No guidance is given as to what constitutes privacy for this purpose, or to how the “public interest” should be interpreted. However, unless there is a very good reason to the contrary, recording conditions is the starting point.

In addition, under s 226(2), the Board can decide that information relating to a practitioner should not be included on the Register if the practitioner so requests, and if “the Board reasonably believes the inclusion of the information on the register would present a serious risk to the health or safety of the practitioner”. This is a very narrow exception and will occur relatively rarely.

Difficult issues for practitioners’ privacy and commercial viability arise from these provisions. The situation is the more complex because decisions by “responsible tribunals” (like those of courts) are published on the internet, generally without being anonymised.

As yet, there is uncertainty about how the provisions relating to practitioners’ personal information and the “overriding public interest”, in respect of health matters, will be interpreted by the Board. To facilitate, or at least not militate against, practitioners’ recovery, personal health information should be protected as far as possible. The other perspective is consumerist — that patients and potential patients have a right to know about health conditions or other factors that have been found to have affected practitioners’ capacity to deliver professional services. Victorian Health Services Commissioner Beth Wilson has argued that patients have “a right to know about doctors’ past misdemeanours”,5 while former Deputy President of the New South Wales Medical Board, Peter Arnold, has contended that once conditions on a doctor’s registration have been satisfied, the issue is resolved and the Register should not retain a permanent record of such matters.5 Joanna Flynn, Chair of the Medical Board of Australia, has encouraged debate on the subject.5

Another unknown is how the Board will interpret its discretion to remove information about the imposition of reprimands on a case-by-case basis in considering what is “necessary” or “appropriate”, the latter term being so broad as to defy predictable interpretation. A difficult aspect of this is that reprimands can be imposed for relatively minor infractions but also for very serious matters. The contrast is with “cautions”, which, under the National Law, now become a significantly less serious determination and are not published, presumably to reflect their status as only a minor chastisement. There is much to be said for the Board publishing the basis of reprimands (rather than merely that a doctor has been chastised) so that the public can understand the nature, context and, potentially, the continuing relevance (or otherwise) of a doctor’s transgression. However, as yet there is no clear legislative warrant for this.

It will be important for the Board to formulate publicly available guidelines that will enable practitioners to understand better — and to make submissions about — when conditions should not be published on the Register because of privacy considerations, and when reference to reprimands should be removed so that practitioners can live down and rehabilitate from mistakes of the past. This would promote transparency and consistency in the decision-making process and encourage practitioners to seek medical attention when they need it without fear of the consequences. An option would be for reference to reprimands to be removed from the Register after a period of, say, 3 years, and for conditions that have been satisfied to be removed after a comparable period. Similarly, it is important that the Board formulate a position about the level of information it will publish about practitioners’ health conditions, so that they are not unduly prejudiced in their health privacy and their potential for recovery by such material being published on the Register.