Serious misconduct of health professionals in disciplinary tribunals under the National Law 2010-17.

Objective There is a gap in knowledge regarding serious disciplinary matters concerning health professionals under the Health Practitioner Regulation National Law Act 2009 (hereafter 'National Law'). The present study applies a typology of misconduct to the first 7 years of available tribunal cases under the National Law brought against the five most populous regulated health professions with the overarching goal of mapping the relationship between type of misconduct and outcome. As subquestions, the study examined whether the ostensibly uniform law is producing consistency of outcomes, both between the professions and between jurisdictions. Methods All publicly available Australian tribunal-level decisions concerning complaints of serious misconduct and/or impairment brought against the five most populous regulated health professions (nurses and midwives, doctors, psychologists, pharmacists, and dentists) were gathered from 1 July 2010 to 30 June 2017. Decisions were coded for case and respondent attributes, the type/s of misconduct alleged, whether proved, and the relevant disciplinary outcome. Respondent attributes were: profession, sex, legal representation, and certain identified 'risk' factors from previous studies. The type of allegation was coded based on five main categories or heads of misconduct, with subtypes within each. Outcomes for proved conduct were coded and categorised for severity. Analyses of cases was conducted using SPSS, version 21 (IBM, New York, NY, USA). Data was subject to statistical analysis using Pearson's Chi-squared test with an α value of 0.05. Results Major variations were identified in outcomes across the professions, with doctors being subject to less severe outcomes than other professions, in particular compared with nurses, even when the same main head of misconduct was in issue. Differences in legal representation did not completely account for such variation. Marked disparities were also identified between outcomes in different states and territories, suggesting that the National Law is not being applied in a uniform manner. Conclusion Tribunal cases reflected complaint data in that: (1) male practitioners were greatly over-represented as respondents; (2) outcomes were most severe for sexual misconduct and least severe for clinical care; and (3) doctors faced less severe outcomes than other professions. There were also significant variations in severity of outcome by jurisdiction. Variations were more pronounced when deregistration was the focus of analysis. What is known about this topic? Existing research on complaints data under the National Law in place since 2010 has suggested that doctors may be receiving less severe outcomes than other professions at board level. There is a gap in knowledge concerning serious disciplinary matters heard by tribunals. Unlike data on complaints against regulated health professionals collated by AHPRA, legal tribunals, which hear only the most serious matters, do not record data on cases in a consistent or centralised form. What does this paper add? This study is the first to compare tribunal outcomes for the five most populous professions by reference to the type of misconduct proved. The finding that different professions are receiving different outcomes for the same malfeasance is novel. Other novel findings include significant variations in severity of outcome by jurisdiction, more pronounced variations in outcomes by both profession and jurisdiction when deregistration was the focus of analysis and variations in outcome according to legal representation. What are the implications for practitioners? There are major implications for policy makers and decision makers in terms of whether the National Law is operating consistently, with important outcomes for practitioners in terms of equitable and fair treatment when facing disciplinary charges.

What is the Responsibility of Australian Medical Professionals Whose Patients Travel Abroad for Assisted Reproduction?

Australian medical professionals whose patients undertake assisted reproductive treatment abroad face a conflict: to try to provide optimal and on-going care for their patient at the same time as ensuring compliance with Australian legal, ethical, and professional rules which proscribe as unsafe or unethical key aspects of such treatment. A major suggestion from literature on medical travel is that risks to the patient can be mitigated through the involvement of the local professional. However, the force of legal regulation and ethical guidance in Australia strenuously directs clinicians away from involvement in overseas reproductive treatment. This article reports on 37 interviews with Australians travelling abroad for surrogacy, egg donation, and embryo donation, reflecting on patients' experiences with Australian medical professionals both before and after they travelled. Patient reports demonstrate a fragmented and bewildering medical landscape in Australia, in which the ability to access domestic care and expertise varied markedly depending upon the kind of treatment patients were seeking abroad, and the mode of practice of the Australian doctor. Doctors practicing within licensed IVF clinics were notably more constrained than those outside such a setting. Patients seeking egg donation were offered information and received a wide range of diagnostic and preparatory treatments, while those seeking surrogacy were shunned, chided and offered limited (and sometimes covert) assistance. While recent changes to national ethical guidance improve clarity on information giving, the ethical and legal propriety of Australian medical professionals providing diagnostic or preparatory treatment for cross border reproduction remains uncertain.

The Role of professional facilitators in cross-border assisted reproduction.

The operations of those who facilitate travel across international borders for access to assisted reproduction are little understood. Within the broader field of research into medical travel facilitators, most empirical studies have addressed websites and promotional materials, with few qualitative investigations of individuals who are service providers. The research presented here centres on interviews with 23 professionals facilitating cross-border assisted reproduction. This study sought to understand how facilitators and service providers operate within a professional framework, examining their understanding of the ethical limits on their roles within a largely unregulated and rapidly evolving international 'marketplace'. Broadly, participants trusted in the market to 'find its own level', such that unscrupulous players would not succeed because others would not refer to, or work with, them. In instances where a clear risk to the health of reproductive contributors or to the well-being of future children was perceived, participants understood their own ethical duty to be limited to service denial or withdrawal of participation. Among the eight facilitators who were not legal or medical professionals, there was a striking commonality, in that all had personal experience of assisted reproduction, both as patients and as reproductive contributors. Within this group, and particularly among the six women who directly 'matchmade' arrangements between intended parents, egg donors and surrogates, was a strong sense of 'embodied' expertise and claims to ethical practice based upon that expertise.

How are complementary health professions regulated in Australia? An examination of complementary health professions in the national registration and accreditation scheme.

OBJECTIVES: This study aims to provide an empirical examination of how complementary medicine practice in Australia is actually regulated under the current national registration model. METHODS: Data was obtained from Australian Health Practitioner Regulation Agency (AHPRA) Annual Reports for the years 2011/12-2014/15 and supplemented by the Chinese Medical Registration Board of Victoria (CMRBV) Annual Reports in 2011/12 for Chinese Medicine complaints. The data analysed includes complaint statistics, stage of closure of complaints and the outcome of complaints concerning Chinese medicine, chiropractic and osteopathy under the National Law. RESULTS: During 2014-2015 the number of complaints per 100 registrants for was highest for the medical board (4.4), while much lower for the chiropractic (1.5), osteopath (0.7) and Chinese medicine (0.5) boards. For conventional boards, 58% of complaints were closed at the assessment stage, while 57%, 29% and 16% of complaints to the osteopath, Chinese medicine and chiropractic boards respectively were closed at the assessment stage. The decision to suspend or cancel registration of health professionals was 17% from the Chinese medicine board, 14% from the Osteopathy Board, 1.5% from the chiropractor board and 0.6% from the medical board. CONCLUSION: It appears that complementary medicine practitioner regulation works at least as well as conventional regulation, and at most complementary medicine boards take a stricter interpretation of misconduct though more research would need to be undertaken to state this definitively. Our findings indicate that the public are using the statutory complaint mechanisms available to them with respect to the three CM groups.

Reflecting the 'human nature' of IVF embryos: disappearing women in ethics, law, and fertility practice.

Many laws and ethical documents instruct us that disembodied embryos created through IVF processes are not mere tissue; they are 'widely regarded' as unique objects of serious moral consideration. Even in jurisdictions which disavow any overt characterization of embryonic personhood, the embryo, by virtue of its uniqueness and orientation toward future development, is said to have a 'special status' or command 'respect'. The woman whose desire for a child or children created this embryo, and who inhabits the body to whom it may one day be returned, is an omission or at best an afterthought in such frameworks. This paper engages in an historical analysis of this conundrum in the Australian context. It argues that the institutional structure of foundational ethics bodies (made up of a mandated mix of scientific and religious representation, in practice dominated by men, and absent any requirement of the participation of women patients) has produced the embryo as an object of ideological compromise: 'not mere cells' and 'not life', but a poorly bounded and endlessly contested something-in-between. The paper then turns to engage with the narratives of a selection of women patients about their sense of connectedness to their stored or discarded embryos, drawn from a larger study on decision making concerning patient's experience of decision making about IVF embryos. I draw on these narratives to ask how we could reorient law and policy toward the concerns, needs and desires of such women.

Learning from Cross-Border Reproduction.

Drawing upon the preliminary findings of an Australian empirical project on cross-border reproduction (CBR), this article argues that regulators and policymakers could learn from the experiences of those who travel overseas in order to access fertility treatment and surrogacy. It makes four principal observations. First, the distinction between so-called 'altruistic' and 'commercial' gamete donation and surrogacy is increasingly unsustainable and is not experienced as meaningful by many participants in CBR. Secondly, the status of the law in CBR is profoundly equivocal; for participants it is often there and not there at the same time. Thirdly, self-sourced information, from the internet and more specifically social media such as Facebook, is now the principal source of information and peer support for reproductive travellers. Fourthly, and relatedly, domestic reproductive services providers are often sidestepped. If one of the goals of regulation is to minimise the risk of harm to participants, it is not clear that it is currently achieving this aim, and this article argues that any reforms will only work if they are more responsive to the reality of CBR.

Embryo donation and understanding of kinship: the impact of law and policy.

STUDY QUESTION: What is the impact of law and policy upon the experience of embryo donation for reproductive use? SUMMARY ANSWER: Access to, and experience of, embryo donation are influenced by a number of external factors including laws that impose embryo storage limits, those that frame counselling and approval requirements and allow for, or mandate, donor identity disclosure. WHAT IS KNOWN ALREADY: To date only three qualitative studies in Australia and New Zealand have been completed on the experience of embryo donation for reproductive purposes, each with a small cohort of interviewees and divergent findings. STUDY DESIGN, SIZE, DURATION: Embryo donors, recipients, and would-be donors were interviewed between July 2010 and July 2012, with three additional interviews between September 2015 and September 2016, on their experiences of embryo donation. The sampling protocol had the advantage of addressing donation practices across multiple clinical sites under distinct legal frameworks. PARTICIPANTS/MATERIALS, SETTINGS, METHODS: Participants were recruited from five Australian jurisdictions and across 11 clinical sites. Twenty-six participants were interviewed, comprising: 11 people who had donated embryos for the reproductive use of others (nine individuals and one couple), six recipients of donated embryos (four individuals and one couple) and nine individuals who had attempted to donate, or had a strong desire to donate, but had been prevented from doing so. In total, participants reported on 15 completed donation experiences; of which nine had resulted in offspring to the knowledge of the donor. MAIN RESULTS AND THE ROLE OF CHANCE: Donors positively desired donation and did not find the decision difficult. Neither donors nor recipients saw the donation process as akin to adoption . The process and practice of donation varied considerably across different jurisdictions and clinical sites. LIMITATIONS, REASONS FOR CAUTION: Because the pool of donors and recipients is small, caution must be exercised over drawing general conclusions. Saturation was not reached on themes of counselling models and future contact. WIDER IMPLICATIONS OF THE FINDINGS: The differences between our findings and those of a previous study are attributable to varied legal and counselling regimes. Therefore, law and policy governing embryo storage limits, counselling protocols and identity disclosure shape the donation experience and how it is described. STUDY FUNDING/COMPETING INTERESTS: This research was supported by Discovery Project Grants DP 0986213 and 15010157 from the Australian Research Council and additional funding from UTS: Law. There are no conflicts of interest to declare. TRIAL REGISTRATION NUMBER: Not applicable.

Rethinking "Commercial" Surrogacy in Australia.

This article proposes reconsideration of laws prohibiting paid surrogacy in Australia in light of increasing transnational commercial surrogacy. The social science evidence base concerning domestic surrogacy in developed economies demonstrates that payment alone cannot be used to differentiate "good" surrogacy arrangements from "bad" ones. Compensated domestic surrogacy and the introduction of professional intermediaries and mechanisms such as advertising are proposed as a feasible harm-minimisation approach. I contend that Australia can learn from commercial surrogacy practices elsewhere, without replicating them.

Responsive regulation of cross-border assisted reproduction.

This article considers the question: how might Australian regulators constructively respond to the dynamic and complex challenges posed by cross-border assisted reproduction? To begin, the article summarises the available international scholarship and outlines what little we know about Australian cross-border reproductive travel. Of the three generally proposed responses to cross-border reproductive care (prohibition, harm minimisation and harmonisation), the article summarily rejects the first approach, and instead discusses a mixture of the latter two. The article proposes the beginnings of an immediate policy response aimed not at stopping cross-border practices per se, but rather at understanding and reducing the risks associated with them, as well as flagging the pursuit of more ambitious meta-goals such as developing more equitable and accessible treatment frameworks for assisted reproductive technology and encouraging domestic self-sufficiency in reproduction.

Numerical limits in donor conception regimes: genetic links and 'extended family' in the era of identity disclosure.

This article critically examines the setting of limits on the number of children or family groups that may be formed with a single donor in assisted conception regimes. Originally, under conditions of anonymity, numerical limits were said to contain the risk of inadvertent consanguinity between offspring who would not know, and could not know, that they were genetic half siblings, and also between donor and offspring. The increasing embrace of identity disclosure regimes has led to calls for stricter numerical limits based on the purported harm of being exposed to 'too many' genetic relatives in the future. This article asks: how many is too many? And how do we know? The UK and Australian positions are examined, and placed alongside a discussion of qualitative research involving interviews with twenty parents of donor conceived children.