Options for regulation of unregistered health practitioners Decision Regulation Impact Statement

Despite the shortcomings in the data, reported numbers from professional associations provides the most accurate estimate available of the numbers of practitioners within the scope of this RIS.

Self-regulation and co-regulation are key features of the regulatory landscape

Some respondents suggested that the consultation paper did not adequately describe or give sufficient recognition to:

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  the self-regulatory arrangements put in place by many professional associations
  
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  the co-regulatory arrangements that apply between governments and professional associations to set and enforce standards for provision of services funded by governments.
  

While many respondents made reference to the existing self-regulatory arrangements, most also noted shortcomings of self-regulation, compared with statutory registration.

While there is much anecdotal evidence of problems, there is little hard data

Respondents identified a range of risks associated with the practice of unregistered health practitioners and identified various factors they considered reduced or exacerbated these risks. While the range of factors identified was broad, approximately 15% of respondents identified ‘lack of training and/or continuing professional development (CPD) as the single most significant risk factor. Approximately 7% or respondents identified ‘remote or isolated practice’ and ‘vulnerable patients, for example, the elderly, juvenile or chronically ill’ as risk factors.

With respect to incidence of risk, respondents generally confirmed the data already presented in the consultation paper and representation of the problem. Many respondents reported they knew of anecdotal evidence of a similar nature. A small number of submissions provided some concrete data including case studies.

The additional case studies provided were of the following main types:

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  sexual misconduct and other improper relationships with clients
  
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  failure to refer on appropriately or in a timely manner, resulting in delayed treatment and in some cases death
  
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  false and misleading claims about the effectiveness of treatment
  
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  financial exploitation
  
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  incompetent or unethical counselling services
  

In two areas of practice, substantial material was submitted on cases of harm. These were:

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  Naturopathy and Western herbal medicine
  
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  Counselling and psychotherapy
  

Consumers reported serious harm and a lack of effective avenues for redress

Consumer submissions made a number of points. First, those families who have been affected by unethical, unqualified or ‘rogue’ practitioners, particularly in the counselling and psychotherapy field, reported acute levels of distress at the harm caused to their family members, and frustration at the lack of available avenues for seeking redress. These included reports about individual practitioners who are operating in a cult like environment, as well as religious organisations offering drug and alcohol and mental health services.

The tragic experiences of AFMA members provide evidence… In many cases the lives of the clients as well as their families have been seriously affected or destroyed including instances of suicide. The families, as well as the clients, become victims of the harmful therapy. Australian False Memory Association Inc (Submission 99) I am therefore led to conclude that the system for regulating unregistered health providers is broken. ….Even when I presented a compelling case that some religious groups formulate “treatment” that mixes medical/psychological terminology and exorcism, no satisfactory action has yet to be taken. Confidential Submission 35

Submissions from a West Australian government MP and health complaints entities stressed the need for additional regulatory safeguards in this area.

Consumers of mental health services are often very vulnerable and open to exploitation and harm from their service provider and may not have the mental or emotional capacity to realise or deal with unethical behaviour on the part of that provider… It may also be easier for an unscrupulous practitioner to isolate these clients from other sources of emotional support such as families, workmates and friends. The Hon. Alison Xamon, MLC East Metropolitan, Western Australia (Submission 132)

Respondents expressed the view that consumers are often uncertain about how to make a complaint and, in many instances, there are no effective avenues of redress available. The emotional as well as financial costs of court action can be prohibitive, but many consumers do not want financial recompense. Rather, they often seek an assurance that the same thing will not happen to others.

I sincerely trust that there will be protection and avenues for recourse for other families so that they do not have to experience the heartache our family continues to experience. Confidential Submission 139

While complaints numbers are low, there is considered to be substantial
under-reporting of unethical conduct

A common view expressed was that there is likely to be substantial under-reporting of unethical or unprofessional conduct either because consumers do not know of available avenues of complaint, or for various reasons are unable or unwilling to pursue the matter, or fear they will not be taken seriously. A few submissions documented studies that suggest under-reporting of complaints, notably ARONAH, Victorian Allied Health Leaders Council (VAHLC), and D. Sauvage.

It does take a bit of nerve to decide to make an official complaint. Often complaints can be made to bodies that seemingly have little power to address complaints adequately… the complainant needs to be dogged in their pursuit of a complaint and not be discouraged and worn down. Consumer Submission 3 (name withheld) I suspect there is considerable non-reporting in this field. The level of vulnerability is obvious. Ombudsman and Health Complaints Commissioner Tasmania (Submission 148) There is general consensus that most cases of harm go unreported. Most commonly the reason given is that patients and their family wish to move on from what has been a negative and sometimes traumatic experience… often exacerbated by the lack of legal recourse against such practitioners. Australian Register of Naturopaths and Herbalists (ARONAH) (Submission 141)

There is strong support for further government action

Protection of the public from unqualified practice was a commonly reported objective, along with the need for a clear, well-publicised pathway for complaints and a public education program to better inform consumers and practitioners. Submissions made reference to a variety of other subsidiary objectives.

Over 90% of respondents supported further government action to strengthen regulation of unregistered health practitioners. Most respondents supported Option 3, to adopt nationally the regulatory model already in operation in NSW. While many professional associations reported that they already have in place a code of ethics and disciplinary processes, most saw their role as complementary to that of a Commissioner, with their association dealing with less serious complaints, and then referring the more serious complaints to the Commissioner. Many reported that they are powerless to deal with practitioners who breach professional standards but are not members of their association.

Each year the Australian Register of Homoeopaths Ltd (AROH) receives a number of complaints about homeopaths or their practice. In many cases we are unable to investigate the complaint or take any action, as the practitioner is not registered with AROH, as in the tragic death of Gloria Sam in NSW. In these cases we direct the complainant to the appropriate State authority. The Australian Register of Homeopaths Ltd (Submission 161)

A small number of respondents supported Option 1, arguing that there is no case for government action in this area. Those opposed to further regulation were:

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  the Pharmacy Guild submitted with respect to pharmacy assistants
  
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  three counselling organisations (PACFA, ARCAP, and ACA) with respect to counsellors and psychotherapists.
  

PACFA and ACA submissions expressed the view that further government intervention was not warranted as they considered the risks associated with their profession were small and that any complaints were adequately dealt with by their internal processes.

Given the low risk relating to Counselling and Psychotherapy, the potential costs of regulation and the effectiveness of existing regulatory mechanisms and self-regulation, it is difficult to argue there is a need for further regulation by government. However there is a need to build on existing self-regulation to ensure these more effectively manage risks to the community from unregistered health practitioners. Psychotherapy and Counselling Federation of Australia (Submission 84)

This view was not shared by consumer respondents who reported suffering harm at the hands of untrained counsellors (submissions 3, 35, 98,139 & 157).

Three submissions expressed the view that ‘pseudo medicine’ should not be legitimised through a regulatory scheme, and that CAM causes increased community mistrust of registered professions.

Statutory registration preferred by a sizeable minority of respondents

Of the respondents who opposed Option 3, most expressed the view that Option 3 would not provide sufficient protection to the public and that statutory registration was their preferred (and in some cases the only) option to satisfactorily address the risks associated with their profession. In total, 36 (20%) respondents identified statutory registration as their preferred option.

Table 6 below shows the professions where respondents nominated statutory registration as their preferred regulatory model.

Table 6: Respondents by profession who identified their preferred option as statutory registration

Profession	Number
Allied health	1
Social work practitioner/ association	7
Counselling/psychotherapy	1
Speech pathology	1
Cardiac/respiratory/sleep scientists	4
Anaesthetic technicians	1
Audiology	1
Orthotics/prosthetics	1
Sonography	3
Optical dispensers	1
Paramedics	1
Translators/interpretors	2
Oral health/dental technicians	5
Doulas	1
Personal care workers	1
Naturopaths	2
Medical practitioner (drug & alcohol services)	1
Health fund (multiple professions)	1
State registration board (Speech pathologists and dental technicians)	1
TOTAL	36

Some of these respondents appear to have an unrealistic expectation of what statutory registration can achieve, seemingly believing that if their profession were registered, there would be no more unethical or incompetent practice. The complaints data at Table 4 for the registered health professions does not bear out this view.

Strong support for a partnership with government to strengthen self-regulation

While most respondents supported Option 3, many also expressed concern about the reactive nature of the negative licensing model of regulation, particularly the absence of probity checking and minimum qualification standards for entry to practice.

Many national professional associations supported a combination of Option 2 (strengthened self-regulation) and Option3, stating that it would provide a safety net to protect the public from practitioners who choose not to participate in the profession’s self-regulatory arrangements, or who had left the professional association to avoid disciplinary action.

Speech Pathology Australia currently has strong self-regulation mechanisms, linked to membership, that ensure that speech pathologists have the appropriate qualifications and practice competencies; that they practise within the Association’s code of ethics and scope of practice; and that their practice is recent and current… The Government through a national framework should recognise the robust self-regulatory mechanisms of those professions who can demonstrate they have these (the mandatory standards of AHPRA) in place. Speech Pathology Australia (Submission 107) Where professional associations have robust structures of self-regulation in place, DAA sees little benefit and potential losses if these processes are removed in favour of additional intervention… DAA would like to see government agencies and others recognise the credentials such as Accredit Practising Dietitian in lieu of registration for professions with robust self-regulation. Dietitians Association of Australia (Submission 117) ATMS is therefore of the view that, whilst the government should not necessarily be the gatekeeper to professional entry, both Government and associations such as the ATMS should work in partnership to safeguard both the integrity of practice modalities, the health system more broadly and obviously the community, from rogue and unqualified practitioners. Australian Traditional Medicine Society Ltd (Submission 52)

A number of professional associations provide detailed proposals for a ‘co-regulatory model’ and called for governments to support and endorse self-regulatory arrangements through an accreditation scheme for professional bodies and/or other incentives to encourage practitioner cooperation and compliance.

…Professionally trained practitioners, compliant with a genuine professional association set of rules and guidelines greatly reduce risk. The Australian Traditional Medicine Society Ltd (ATMS) believes that the government should simply set the “flags to swim between” but allow peak bodies such as ATMS to determine the standards for admission to the professions… ATMS strongly advocate the need for the Federal government to work with its State and Territory partners to establish a high-level principle of probity checks to be administered by official channels in partnership with professional associations. Moreover, ATMS holds the view that there should be an additional level of authentication by the Government to test any professional association’s bona fides. Australian Traditional Medicine Society (Submission 52)

Other respondents pointed to the conflict of interest in self-regulatory arrangements that provide for a professional association to investigate complaints against its members while also being responsible for representing its members and promoting their interests.

We are a small group of professionals who know all of our colleagues throughout Australia and new Zealand and would like to avoid accusations of collusion that could be managed if an investigation and subsequent action was administered by a different body. Australian and New Zealand College of Perfusionists(Submission 87 The key purpose of the associations is to represent the interests of their member practitioners. A national register was seen as a necessary step towards the clear demarcation between roles, therefore, avoiding any potential conflict of interest, particularly in relation to disciplinary matters. Australian Register of Homoeopaths (Submission 141) A voluntary code of conduct is not in the best interests of the Australian public as it effectively asks professional associations to investigate complaints made by the public against their members whilst they are charged with upholding their members’ best interests. National Herbalists Association Australia (Submission 153 My experience as an unregistered healthcare professional is that professional associations who profess self-regulation tend to focus on continuing education and having a code of ethics as evidence of regulation. Such measures are preventative, but they do not constitute regulation of misconduct. When complaints are raised, professional bodies investigating their own members lacks credibility as there is a conflict of interest between retaining membership, prioritising one aspect of conduct over another, and objectivity and transparency are difficult to demonstrate. Dr L. Collingridge (Submission 83)

Some also identified the challenges, including the costs associated with properly resourced complaints handling, and a complaints handling process that is managed primarily by volunteers without sufficient training or expertise.

We believe that self-regulation provides less than adequate protection to the public. The executive of most professional associations is made up of volunteers. Investigation of complaints by the public, by those who are colleagues or competitors of the professional being complained about, introduces conflicts of interest and a perceived lack of objectivity. Australian Association of Audiologists in Private Practice (Submission 177) The complaints mechanisms that have been established by some professional associations are likely to be flawed because of a lack of clear process, a lack of experience in matters of fairness and the application of natural justice, and processes differ from one professional association to another… Naturopaths for Registration (Submission 88)

The benefits of extending regulation considered to outweigh the costs

Many respondents expressed the view that the cost to the community of doing nothing far outweighed the cost of extending regulation.

Few respondents addressed the question of what it might cost to comply with a national Code of Conduct. Those who did address this question expressed the view that they did not think they would incur any additional costs associated with complying with a statutory code of conduct, or if they did, the costs would be minimal, since they were already required to meet similar standards through membership of their professional association. The NHAA reported that cost increases to its members as a result of the introduction of the NSW Code of Conduct had been very minor.

The experience of the introduction of the compulsory code of conduct in NSW presented no significant costs to practitioners. Minor costs were incurred from changes within practices regarding the display of materials relevant to the statutory code. National Herbalists Association Australia (Submission 153)