Options for regulation of unregistered health practitioners Decision Regulation Impact Statement
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- Bu səhifədəki naviqasiya:
- Other improper relationships with clients
- Failure to refer on resulting in delayed diagnosis or treatment
- Other unprofessional conduct
- Table 4: Notifications to AHPRA for registered health practitioners 1 July 2011 – 30 June 2012
- Total No of Registrants* No of Notifications^ Notifications/1000
- Average 14 per 1000 registered health practitioner
- Option 1: Status quo
- Table 5: Number of submissions by type of respondent
- TOTAL 182 100%
- Professional Hypnotists of Western Australia Inc (Submission 38)
- The Australian Reiki Connection Inc (Submission 71)
- Shiatsu Therapy Association of Australia (Submission 133)
Sexual misconduct Submissions reported significant underreporting of sexual misconduct, particularly of practitioners who commence a sexual relationship with a patient while the patient is under their care. A number of cases have involved sexual assault by practitioners of patients in their care and other sexual misconduct in the form of sexual relationships between treating practitioners and patients. Examples include:
In some cases, where the offence is a single and isolated event and the practitioner is remorseful, he or she may be unlikely to reoffend. But in other cases, repeated offences have occurred, sometimes over many years, reflecting a pattern of behaviour that, if dealt with earlier, might have reduced the risk of repeat offences and prevented further victims. Where a criminal prosecution has been successful, the practitioner is not under any obligation to inform prospective patients of their criminal history, and in such instances there is no offence under consumer protection law if no misrepresentation or deceptive conduct has occurred. However, if the practitioner were registered, in order to safely return to practise, they might be required to inform every patient of any limitations placed on their practise, and in some cases, if necessary, have a chaperone present during treatments. Other improper relationships with clients Six consumer respondents to this consultation reported extreme trauma and distress associated with family breakdown following a family member attending a counsellor or psychotherapist or attending a self-growth seminar. Consumers reported exploitation and abuse associated with cult-like therapy groups, a common theme being: …no certainty of ethical practice or practice standards, no certainty of appropriate training of practitioners, no opportunity for complaints process, no professional standards to guide practice (Submission 17 at www.ahmac.gov.au/cms_documents/Submissions%20list%20for%20website.doc). Most of these submissions supported the establishment of an effective body with the power to investigate and act upon complaints from both consumers and others such as family members to prevent harm and protect the health and wellbeing of the public. Cancer care In the context of cancer care, there are numerous examples of practitioners who operate outside conventional referral and health service systems and specifically target their services directly to vulnerable cancer patients. In doing so, they may combine the use of misleading claims about their qualifications and/or treatments with pressure sales tactics, and charge unjustifiably high fees (sometimes in the tens of thousands of dollars), generally for treatments of unproven or questionable benefit. They often characterise their treatments as ‘complementary or alternative medicine’ (CAM) and present themselves as ‘pioneers’ in the treatment of patients for whom Western medicine has apparently failed. Such exploitative and predatory behaviour is not condoned by reputable CAM practitioners and brings the CAM professions into disrepute. A great many health services are provided by people who do not come within a statutory registration scheme, and the overwhelming majority of them are honest, caring and competent. However, a few health practitioners are anything but honest and competent and care for nothing more than their own financial advancement… When patients seek health services they are entitled to be protected from the shonks and rip-off merchants who peddle false hope. People battling serious or terminal illnesses can be desperate, and will sometimes hand over large amounts of money for useless treatments. They may also be influenced to forgo proven medical treatments (Parliament of New South Wales, 2006 p.2083). Consumer protection law provides an avenue of redress where practitioners use false or misleading advertising or display deceptive credentials to recruit patients. Some have been prosecuted by consumer protection regulators, with mixed results (see case studies 7 and 10 in Appendix 10). Steps are being taken in some jurisdictions to better educate consumers as to some of the pitfalls of seeking unconventional treatments and in how to identify and deal with potentially exploitative providers when making health care choices (see Cancer Council Victoria fact sheet: Complementary and alternative medicine: making informed decisions). However, community education has its limitations in these circumstances, particularly for patients whose vulnerability is heightened due to a life threatening illness or chronic health condition.
Some practitioners have failed to recognise the limitations of their practice, to the extent that where a patient’s condition does not respond to treatment, they fail to refer on appropriately (see case studies 3, 15 and 20 in Appendix 10) Other unprofessional conduct There is a range of other practitioner behaviour that may result in serious harm to consumers. Examples include:
2.4 Deregistered practitioners Some health practitioners have either been deregistered, or let their registration lapse, but have continued to practise despite serious concerns about sexual misconduct, physical assault of patients, fraud, or other unethical practices. The number of practitioners who are deregistered each year is small and some State and Territory laws have been tightened in recent years to empower disciplinary tribunals to issue prohibition orders when deregistering a practitioner. Cases have been reported of:
The South Australian Social Development Committee report documented four cases involving two former medical practitioners, one former dentist and one former psychologist (Social Development Committee 2009, p.48–51). While it does not necessarily follow that these deregistered practitioners are continuing to engage in unethical or illegal activity, their deregistration would, in most cases, indicate that they are not fit and proper to be providing the same or similar services that they previously provided as a registered practitioner. The fact that these practitioners have been willing to restructure and re-badge their practice arrangements to continue practising free from regulatory oversight suggests there is a heightened risks for consumers. Under the National Law, a State or Territory Tribunal has the power, at the time it decides to cancel a practitioner’s registration, to ‘prohibit the person from using a specified title or providing a specified health service’ (see section 196(4)(b)). While these powers are yet to be tested, their impact in protecting the public is limited because the powers cannot be applied retrospectively to practitioners who have already been deregistered prior to the introduction of the National Law, or to practitioners who have previously let their registration lapse and the relevant State or Territory registration board had no powers to pursue the matter or decided not to. There are a number of practitioners referred to in Appendix 10 who fall into this category. 2.5 Available data on complaints Health Complaints Entities from NSW, Queensland, Victoria and Western Australia have provided data on the numbers and types of complaints received in relation to unregistered health practitioners. Appendix 11 provides details of the data provided, which includes data on:
It is difficult to make comparisons between States and Territories, or to draw conclusions from the data because there is no standardisation across jurisdictions in collection and reporting. However, given the data from NSW following the introduction of a code of conduct, one would expect that the level of complaints/1000 against unregistered health practitioners would be below the level of those for registered health practitioners. Table 4 shows the notifications to AHPRA about registered health practitioners from 1 August 2010 to 31 May 2011. There is a wide range in the level of complaints/1000 for the different professions, varying from 4/1000 for nurses and midwives to 52/1000 for dental practitioners. Table 4: Notifications to AHPRA for registered health practitioners 1 July 2011 – 30 June 2012
* Registrant numbers as at 30 June 2012 ^ ‘Notification’ includes complaints from consumers, as well as colleagues and employers, and self-referrals. Source: Annual Report 2011-12 AHPRA and the National Boards 3. Consultations This section provides details of the national consultation process, and the key themes that emerged from the consultation forums and analysis of submissions. 3.1 Consultation process The national consultation was conducted in February–April 2011. A consultation paper was released on 28 February 2011 and published on the website of the Secretariat of the Australian Health Ministers Advisory Council (AHMAC). The national consultation and links to the consultation paper were advertised in State and Territory daily newspapers. Public submissions were invited, with a closing date of 15 April 2011. Public comments were guided by a series of questions set out in a ‘Quick response form’ that could be downloaded from the website. The options identified in the consultation paper that were the subject of consultation were: Option 1: Status quo – no change, rely on existing regulatory and non-regulatory mechanisms to protect the public Option 2: Strengthened self-regulation – a voluntary code of practice Option 3: Strengthened complaints handling – a statutory code of conduct and strengthened powers to investigate breaches of the code and prohibit a practitioner from continuing to provide health services if the breach is serious enough. Appendix 12 provides a list of key events relevant to this national consultation. Nine consultation forums were held, one in each State and Territory capital city and Alice Springs, during the period from late March to early April. Invitations were issued by State and Territory health departments, with the invitation lists supplemented by internet searches to identify other stakeholder organisations. Over 350 organisations and individuals attended the consultation forums (see Appendix 13 for a list of attendees). 182 written submissions were received. Appendix 14 provides a summary of the views expressed by participants and issues raised at each consultation forum.
Table 5 below lists the number of submissions received by the type of respondent. By far the largest group of respondents (approximately 68%) were individual practitioners or their representative bodies. Seventeen (17) submissions were received from consumers or consumer representative bodies. Table 5: Number of submissions by type of respondent
3.2 Key themes from submissions and forums Appendix 16 provides summary data on the views of respondents, drawn from the submissions. The main themes drawn from submissions and the consultation forums are summarised below. It is difficult to estimate the size of the sector Professional associations were asked to provide an estimate of the number of unregistered health practitioners believed to be practising in their respective professions. Most professional bodies advised that it was not possible to know with any accuracy how many practitioners were in active practice in their profession. Some provided details of their various data sources and the assumptions they had made in making their estimates. Some, notably the Australian Register of Naturopaths and Herbalists (ARONAH) and Naturopaths for Registration identified complexities such as:
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