The Health Practitioner Regulation National Law (NSW) (National Law) requires practitioners, employers and education providers to report ‘notifiable conduct’, as defined in section 140, to the Australian Health Practitioner Regulation Agency (AHPRA). The primary purpose of this is to prevent the public being placed at risk of harm. This law applies to all health practitioners registered under the National Law (not just practitioners within our own profession), employers of practitioners and education providers. In addition to your legal obligations, you are also under an ethical obligation to notify concerns about a practitioner. Although students are not required by law to make a mandatory notification, they can be subject to a notification.
Mandatory notification under the National Law is concerned with protecting the public from risk of harm. The threshold for reporting a practitioner is high, as the Psychology Board of Australia recognises that it is a serious step to take against someone who more often than not is a peer or colleague.
The National Law also provides for voluntary notifications. This relates to a behaviour that may represent a risk but does not meet the threshold for mandatory reporting.
What constitutes notifiable conduct?
Section 140 of the National Law defines notifiable conduct as when a practitioner has:
- practised the profession while under the influence of alcohol or drugs;
- engaged in sexual misconduct in relation to the practice of their profession (for example: engaging in sexual activity with or in front of a current client; making sexual remarks to a client; and, engaging in sexual activity with someone who is closely related to a client. Engaging in sexual activity with a prior client can also constitute sexual misconduct);
- an impairment which in their practice of the profession has (or reasonably could) place the public at risk of significant harm. Section 5 of the National Law defines impairment for a practitioner as being “a physical or mental impairment, disability, condition or disorder (including substance abuse or dependence) that detrimentally affects or is likely to detrimentally affect the person’s capacity to practise the profession”. Context is important and it is not sufficient that the practitioner may have an impairment of sorts, but rather, that the impairment must have placed the public at risk of substantial harm;
- placed the public at risk of harm because the practitioner has practised in a way that is significantly below accepted professional standards. In this instance, potential risk of harm does not need to be significant, but the departure from professional standards does need to be significant.
When to report?
When considering whether to make a mandatory notification, reasonable belief which goes beyond suspicion must first be formed. While it is not always possible to have direct knowledge or observation of the conduct, reasonable belief is unlikely to be formed on the basis of gossip or rumours alone, although it could be formed if the information was relayed to you by a respectable/reliable source.
Consequences of not reporting
There are no penalties prescribed under the National Law for a practitioner who fails to make a mandatory notification. However, any practitioner who fails to make a mandatory notification when required may be subject to health, conduct or performance action.
How to make a notification?
Under the National Law, notifications are made to AHPRA who then refers them to the relevant National Board and agency. Notifications should be made in writing and include what the notification is about.
A full copy of the requirements and guidelines for mandatory reporting can be accessed via the Psychology Board of Australia’s webpage. All registered psychologists and psychology students should familiarise themselves with these guidelines.