How to deal with Ahpra complaints or notifications as a health professional

Complaints or notifications against health professionals are not uncommon and can have serious implications for a practitioner’s registration as well as their current and future employment. Because of this, it is vital that health professionals understand what to do when a complaint is made against them to the Australian Health Practitioner Regulation Agency (Ahpra) or another regulatory body.

If you’re a doctor, nurse, or other health practitioner, it is important to know what to expect during the complaint process. This article addresses what you should do if a complaint has been made against you, including the various grounds, processes, and potential outcomes of an investigation into that complaint.

What should I do if a complaint has been made against me?

If you have been informed that a complaint has been made against you to Ahpra, the Office of the Health Ombudsman (OHO), the Health Care Complaints Commission (HCCC) or a Health Professional Council (Council):

• do not panic – most complaints are resolved without significant implications for a practitioner’s registration and career;
• speak to your union, insurer, or a health lawyer immediately; and
• do not make any statements to the regulator without first receiving legal advice.

Who can make a complaint to Ahpra?

Although the majority of complaints come from patients and their relatives (47% and 17%, respectively), practitioners should be aware that anyone can make a complaint, including a student, colleague, or their employer.

In some instances, a notification to the Ahpra is mandatory where it involves a health professional:

• practising while intoxicated by alcohol or drugs;
• sexual misconduct relating to practice of the profession;
• placing the public at risk of harm because of a significant departure from accepted professional standards; or
• placing the public at risk of substantial harm due to a practitioner’s health or impairment.

Unfortunately, while most complaints are genuine, it is our experience that vexatious complaints do occur. Your response may be different, where you have good reason to believe that a complaint is vexatious.

What complaints can be made about a health practitioner?

The regulation of health practitioners in Australia is largely governed by the Health Practitioner Regulation National Law (National Law). The National Law has been adopted by all states and territories in Australia.

The grounds on which a person can complain about a health practitioner are broad. Generally, a complaint will allege that the performance, conduct, or health of a health professional is unsatisfactory or unacceptable.

Pursuant to section 144 of the National Law, the following complaints may be made about a registered health practitioner:

• criminal conviction or criminal finding;
• unsatisfactory professional conduct or professional misconduct;
• lack of competence;
• impairment; and/or
• whether or not they are a suitable person to hold registration.

The following complaints may be made about a student of a health profession:

• serious offences;
• impairment; and/or
• contravention of conditions.

The most common type of complaint is related to a health professional’s performance, followed by conduct and then the practitioner’s health.

What is unprofessional conduct; unsatisfactory professional performance and professional misconduct?

Most complaints will involve allegations that the health practitioner practiced their profession or conducted themselves in a way that constitutes ‘unprofessional conduct’ or ‘professional misconduct’.

Unprofessional conduct means professional conduct that is of a lesser standard than that which might be reasonably expected of the health practitioner by the public or their peers.

Unprofessional conduct might include the use of unconventional medical practices such as:

• infusions of bicarbonate soda on a patient who had breast cancer; or
• the failure of notifying the relevant Board of a relevant event, such as being charged with an offence with over 12 months of imprisonment (Note criminal history reporting obligations may vary in some States and Territories); or
• making inappropriate comments about a patient’s physique, which included lewd and sexual suggestions; or
• providing medical care to a person with whom the practitioner was engaged in a close personal relationship; or
• misappropriating medical prescribed for another for personal use.

In some circumstances, a decision maker will look behind unsatisfactory professional conduct and make a finding of unsatisfactory professional performance.

This finding is made if the practitioner’s knowledge, skill, judgement, or care is considered to be below the standard reasonably expected of a health practitioner of an equivalent level of training and experience.

Any determination of unsatisfactory professional performance requires a decision maker to embark upon a comparative exercise, made with reference to the experience of the practitioner, the care that was delivered, and the expected standard.

A finding of unsatisfactory professional performance might be more palatable than a finding of unprofessional conduct, as any identified skills deficit may be cured by remedial action such as further education and training.

An example of unsatisfactory professional performance was found where a practitioner failed to maintain an adequate system for ensuring test results were acted upon in a timely manner and failing to maintain a system for recording and storing patient clinical records.

Professional misconduct is unsatisfactory professional conduct of a sufficiently serious nature to justify suspension or cancellation of the practitioner’s registration. It also extends to more than one instance of unsatisfactory professional conduct that, when the instances are considered together, amount to conduct of a sufficiently serious nature to justify suspension or cancellation of the practitioner’s registration.

Instances where professional misconduct has been found include failing to maintain professional boundaries, inappropriate prescribing and practising whilst impaired.

Who manages or investigates an Ahpra complaint?

In most Australian states and territories, a complaint about a health practitioner is made to Ahpra, which then investigates the complaint. A complaint to Ahpra is called a notification.

In New South Wales, Ahpra does not conduct investigations about health practitioners. Instead, a complaint may be made to a Council or to the HCCC, which consult with each other to determine which body will investigate or otherwise manage the complaint.

In Queensland, all complaints are made to the Office of the Health Ombudsman, which then works with Ahpra and other regulatory bodies to investigate or otherwise manage the complaint.

What happens after a complaint is made about a health professional?

If the regulatory body determines that there is an imminent or serious risk to public health and safety, it may propose to take immediate action.

The regulatory body will reach out to you over the phone to inform you about the complaint. You should take notes and try to get as much information about the complaint as you can. It is important that you do not provide a response to any allegations at this stage, particularly over the phone, as this may be detrimental to your interests.

If you are informed of a proposal to take immediate action against your registration you will be given an opportunity to respond to the proposal, however, you will be given a very limited time to respond, usually 3 working days. It is imperative that if you receive information of this nature, you take immediate steps; contact your union, insurer, or a health lawyer to get advice.

GET ADVICE FROM A HEALTH LAWYER:  1800 659 114

Even if you have received notice of a complaint or notification, we recommend contacting your union, insurer, or a health lawyer without delay to obtain advice about how to respond.

Do not contact the person who made the complaint or notification, as this might be seen as interfering with the investigation.

We also recommend you keep the complaint confidential, although you may speak about it with your family, union, insurer, a health lawyer, or your treating medical practitioner.

Generally, the regulatory body will undertake an initial assessment of the notification and decide whether to investigate. During this process, it will provide you with the allegations made against you in writing and set a timeframe for you to respond. It is important that you seek advice in preparing this response, given the potentially serious consequences that might arise if any allegations against you are substantiated.

During this assessment process, the complaint may be finalised. However, this is not always the case. From time to time, the investigative body will initiate a formal investigation to gather more information, which might include additional clinical records, statements from witnesses, and/or expert reports.

The investigation must be conducted in a way that is procedurally fair towards you. In essence, this means that you must be informed of, and given an opportunity to respond to, all the evidence relied upon in the final determination of the complaint.

What are the potential outcomes of the complaints process?

In the majority of cases, Ahpra or the relevant regulatory body will discontinue the complaint or take no further action. However, if the allegations are substantiated, and are sufficiently serious, the regulatory body may, among other things, caution or reprimand the practitioner or impose conditions on their practice.

In very serious circumstances, Ahpra or the relevant body may refer charges alleging professional misconduct to the relevant administrative tribunal in the state or territory. A tribunal may suspend or even cancel a practitioner’s registration.

Impact of an Ahpra complaint on employment

A notification or complaint against a health professional can have a serious impact on their employment, even before it is substantiated. This is especially the case where the notification or complaint is made by a colleague, manager, or employer.

If a complaint is made against you, your employer may decide to conduct a separate investigation. Your employer may decide to take action against you even if the regulator does not. Unfortunately, it is our experience that health professionals often end up having to respond to the same allegations twice.

It is unfortunately common for employers to notify Ahpra or a health regulator concurrently with conducting their own investigation or disciplinary process. It is vitally important that in responding to any employer process, you be aware that a notification may be made and that any response you give to your employer will be provided to the regulator.

If your employer decides to conduct a workplace investigation, it is important that you know your rights.

Hall Payne Lawyers take a holistic approach to such matters, assisting you to deal with the workplace matter with a keen focus on the potential implication to your registration. Our lawyers are both expert employment and health lawyers.

Seek legal advice from a lawyer experienced in health law

If you are a health professional who has been made aware that you are the subject of a complaint, it is vital to obtain legal advice immediately. You need to ensure that you understand the complaint’s process and can formulate a written response that puts you in a position to get the best possible outcome.

Hall Payne Lawyers regularly act on behalf of doctors, nurses, and other health professionals in both professional conduct and employment matters. We are highly experienced and can assist you throughout the notification or complaint process, as well as any related workplace investigation.

Contacting Hall Payne Lawyers

You can contact us by phone or email to arrange your consultation; either face-to-face at one of our offices, by telephone or by videoconference consultation.

Phone: 1800 659 114
Email: general@hallpayne.com.au