The publication of impaired doctors' identity by Australian and New Zealand tribunals: law, practice, and reform.

For doctors with mental health or substance use disorders, publication of their name and sensitive medical history in disciplinary decisions may adversely impact their health and may reinforce barriers to accessing early support and treatment. This article challenges the view that naming impaired doctors or disclosing the intimate details of their medical condition in disciplinary decisions always serves the public interest in open justice. We analysed and compared the approach of Australian and New Zealand health tribunals to granting orders that suppress the name and/or medical history of impaired doctors. This revealed that Australian tribunals are less likely to grant non-publication orders compared to New Zealand, despite shared common law history and similar medical regulatory frameworks. We argue that Australian tribunals could be more circumspect when dealing with sensitive information in published decisions, especially where such information does not directly form a basis for the decision reached. This could occur without compromising public protection or the underlying goals of open justice. Finally, we argue that a greater distinction should be made between those aspects of decisions that deal with conduct allegations, where full details should be published, and those that deal with impairment allegations, where only limited information should be disclosed.

Protection, Prevention or Punishment? A Cross-Jurisdictional Analysis of Regulatory Immediate Action against Medical Practitioners.

Medical regulators protect the public from unsafe, unwell, or unscrupulous medical practitioners. To facilitate a swift response to serious allegations, many regulators are equipped with far-reaching emergency powers to immediately suspend, or impose conditions on, medical practitioners' registration before facts are proven. Failing to take urgent action may expose the public to ongoing avoidable harm and may erode public trust in the profession. Equally, imposing immediate action in response to allegations that are not subsequently proven can precipitously and irreparably injure a practitioner's career and emotional wellbeing. This is the second of two articles published in the Journal of Law and Medicine that explores the emerging jurisprudence in relation to these emergency regulatory powers. This article compares the approaches to immediate action in seven countries, providing insights for policy-makers and decision-makers into how modern regulatory frameworks attempt to balance the inherent tensions between the profession, the public and the State.

Regulation in Need of Therapy? Analysis of Regulatory Decisions Relating to Impaired Doctors from 2010 to 2020.

Doctors' mental wellbeing is a critical public health issue. Rates of depression, anxiety, and substance use are higher than in the general population. Regulating unwell doctors who pose a public risk is challenging, yet there is little research into how medical regulators balance the need to protect the public from harm against the benefits of supporting and rehabilitating the unwell doctor. We analysed judgments from Australia, New Zealand, Ireland, United Kingdom, Ontario, and Singapore between 2010 and 2020 relating to impaired doctors. We found similarities in how decision-makers conceptualise impairment, how they disentangle impairment from associated conduct or performance complaints, and how regulatory principles and sanctions are applied. However, compared to other jurisdictions, Australian courts and tribunals tended to prioritise deterrence above the rehabilitation of the impaired doctor. Supporting impaired doctors' recovery, when appropriate, is critical to public protection and patient safety.

Characteristics and predictors of regulatory immediate action imposed on registered health practitioners in Australia: a retrospective cohort study.

Objective Immediate action is an emergency power available to Australian health practitioner regulatory boards to protect the public. The aim of this study was to better understand the frequency, determinants and characteristics of immediate action use in Australia. Methods This was a retrospective cohort study of 11200 health practitioners named in notifications to the Australian Health Practitioner Regulation Agency (AHPRA) between January 2011 and December 2013. All cases were followed until December 2016 to determine their final outcome. Results Of 13939 finalised notifications, 3.7% involved immediate action and 9.7% resulted in restrictive final action. Among notifications where restrictive final action was taken, 79% did not involve prior immediate action. Among notifications where immediate action was taken, 48% did not result in restrictive final action. Compared with notifications from the public, the odds of immediate action were higher for notifications lodged by employers (mandatory notifications OR=21.3, 95% CI 13.7-33.2; non-mandatory notifications OR=10.9, 95% CI 6.7-17.8) and by other health practitioners (mandatory notifications OR=11.6, 95% CI 7.6-17.8). Odds of immediate action were also higher if the notification was regulator-initiated (OR=11.6, 95% CI 7.6-17.8), lodged by an external agency such as the police (OR=11.8, 95% CI 7.7-18.1) or was a self-notification by the health practitioner themselves (OR=9.4, 95% CI 5.5-16.0). The odds of immediate action were higher for notifications about substance abuse (OR=9.9, 95% CI 6.9-14.2) and sexual misconduct (OR=5.3, 95% CI 3.5-8.3) than for notifications about communication and clinical care. Conclusions Health practitioner regulatory boards in Australia rarely used immediate action as a regulatory tool, but were more likely to do so in response to mandatory notifications or notifications pertaining to substance abuse or sexual misconduct. What is known about this topic Health practitioner regulatory boards protect the public from harm and maintain quality and standards of health care. Where the perceived risk to public safety is high, boards may suspend or restrict the practice of health practitioners before an investigation has concluded. What does this paper add? This paper is the first study in Australia, and the largest internationally, to examine the frequency, characteristics and predictors of the use of immediate action by health regulatory boards. Although immediate action is rarely used, it is most commonly employed in response to mandatory notifications or notifications pertaining to substance abuse or sexual misconduct. What are the implications for practitioners? Immediate action is a vital regulatory tool. Failing to immediately sanction a health practitioner may expose the public to preventable harm, whereas imposing immediate action where allegations are unfounded can irreparably damage a health practitioner's career. We hope that this study will assist boards to balance the interests of the public with those of health practitioners.

In Whose Interest? Recent Developments in Regulatory Immediate Action against Medical Practitioners in Australia.

"Immediate action" is a powerful regulatory tool available to Medical Boards. It protects the public from harm by restricting a medical practitioner's registration after allegations have been made, but before wrongdoing is proven. This article charts the development of these coercive powers in Australia and examines the legal, socio-political and ethical justification for supplementing a well-defined "public risk" test with a broad and controversial "public interest" test that leaves medical practitioners vulnerable to inconsistent decision-making. Compared to overseas jurisdictions, immediate action powers in Australia offer fewer procedural protections. The regulatory response to perceived threats to public trust and confidence in the medical profession needs to be proportionate, transparent, effective, and consistent, to protect the public while also being fair to practitioners.

Sexual misconduct by health professionals in Australia, 2011-2016: a retrospective analysis of notifications to health regulators.

OBJECTIVES: To assess the numbers of notifications to health regulators alleging sexual misconduct by registered health practitioners in Australia, by health care profession. DESIGN, SETTING: Retrospective cohort study; analysis of Australian Health Practitioner Regulation Agency and NSW Health Professional Councils Authority data on notifications of sexual misconduct during 2011-2016. PARTICIPANTS: All registered practitioners in 15 health professions. MAIN OUTCOME MEASURES: Notification rates (per 10 000 practitioner-years) and adjusted rate ratios (aRRs) by age, sex, profession, medical specialty, and practice location. RESULTS: Regulators received 1507 sexual misconduct notifications for 1167 of 724 649 registered health practitioners (0.2%), including 208 practitioners (18%) who were the subjects of more than one report during 2011-2016; 381 notifications (25%) alleged sexual relationships, 1126 (75%) sexual harassment or assault. Notifications regarding sexual relationships were more frequent for psychiatrists (15.2 notifications per 10 000 practitioner-years), psychologists (5.0 per 10 000 practitioner-years), and general practitioners (6.4 per 10 000 practitioner-years); the rate was higher for regional/rural than metropolitan practitioners (aRR, 1.73; 95% CI, 1.31-2.30). Notifications of sexual harassment or assault more frequently named male than female practitioners (aRR, 37.1; 95% CI, 26.7-51.5). A larger proportion of notifications of sexual misconduct than of other forms of misconduct led to regulatory sanctions (242 of 709 closed cases [34%] v 5727 of 23 855 [24%]). CONCLUSIONS: While notifications alleging sexual misconduct by health practitioners are rare, such misconduct has serious consequences for patients, practitioners, and the community. Further efforts are needed to prevent sexual misconduct in health care and to ensure thorough investigation of alleged misconduct.

Complaint risk among mental health practitioners compared with physical health practitioners: a retrospective cohort study of complaints to health regulators in Australia.

OBJECTIVES: To understand complaint risk among mental health practitioners compared with physical health practitioners. DESIGN: Retrospective cohort study, using incidence rate ratios (IRRs) to analyse complaint risk and a multivariate regression model to identify predictors of complaints. SETTING: National study using complaints data from health regulators in Australia. PARTICIPANTS: All psychiatrists and psychologists ('mental health practitioners') and all physicians, optometrists, physiotherapists, osteopaths and chiropractors ('physical health practitioners') registered to practice in Australia between 2011 and 2016. OUTCOME MEASURES: Incidence rates, source and nature of complaints to regulators. RESULTS: In total, 7903 complaints were lodged with regulators over the 6-year period. Most complaints were lodged by patients and their families. Mental health practitioners had a complaint rate that was more than twice that of physical health practitioners (complaints per 1000 practice years: psychiatrists 119.1 vs physicians 48.0, p<0.001; psychologists 21.9 vs other allied health 7.5, p<0.001). Their risk of complaints was especially high in relation to reports, records, confidentiality, interpersonal behaviour, sexual boundary breaches and the mental health of the practitioner. Among mental health practitioners, male practitioners (psychiatrists IRR: 1.61, 95% CI 1.39 to 1.85; psychologists IRR: 1.85, 95% CI 1.65 to 2.07) and older practitioners (≥65 years compared with 36-45 years: psychiatrists IRR 2.37, 95% CI 1.95 to 2.89; psychologists IRR 1.78, 95% CI 1.47 to 2.14) were at increased risk of complaints. CONCLUSIONS: Mental health practitioners were more likely to be the subject of complaints than physical health practitioners. Areas of increased risk are related to professional ethics, communication skills and the health of mental health practitioners themselves. Further research could usefully explore whether addressing these risk factors through training, professional development and practitioner health initiatives may reduce the risk of complaints about mental health practitioners.

Identification of practitioners at high risk of complaints to health profession regulators.

BACKGROUND: Some health practitioners pose substantial threats to patient safety, yet early identification of them is notoriously difficult. We aimed to develop an algorithm for use by regulators in prospectively identifying practitioners at high risk of attracting formal complaints about health, conduct or performance issues. METHODS: Using 2011-2016 data from the national regulator of health practitioners in Australia, we conducted a retrospective cohort study of 14 registered health professions. We used recurrent-event survival analysis to estimate the risk of a complaint and used the results of this analysis to develop an algorithm for identifying practitioners at high risk of complaints. We evaluated the algorithm's discrimination, calibration and predictive properties. RESULTS: Participants were 715,415 registered health practitioners (55% nurses, 15% doctors, 6% midwives, 5% psychologists, 4% pharmacists, 15% other). The algorithm, PRONE-HP (Predicted Risk of New Event for Health Practitioners), incorporated predictors for sex, age, profession and specialty, number of prior complaints and complaint issue. Discrimination was good (C-index = 0·77, 95% CI 0·76-0·77). PRONE-HP's score values were closely calibrated with risk of a future complaint: practitioners with a score ≤ 4 had a 1% chance of a complaint within 24 months and those with a score ≥ 35 had a higher than 85% chance. Using the 90th percentile of scores within each profession to define "high risk", the predictive accuracy of PRONE-HP was good for doctors and dentists (PPV = 93·1% and 91·6%, respectively); moderate for chiropractors (PPV = 71·1%), psychologists (PPV = 54·9%), pharmacists (PPV = 39·9%) and podiatrists (PPV = 34·0%); and poor for other professions. CONCLUSIONS: The performance of PRONE-HP in predicting complaint risks varied substantially across professions. It showed particular promise for flagging doctors and dentists at high risk of accruing further complaints. Close review of available information on flagged practitioners may help to identify troubling patterns and imminent risks to patients.

Complaints about chiropractors, osteopaths, and physiotherapists: a retrospective cohort study of health, performance, and conduct concerns.

Background: Recent media reports have highlighted the risks to patients that may occur when practitioners in the chiropractic, osteopathy and physiotherapy professions provide services in an unethical or unsafe manner. Yet research on complaints about chiropractors, osteopaths, and physiotherapists is limited. Our aim was to understand differences in the frequency and nature of formal complaints about practitioners in these professions in order to inform improvements in professional regulation and education. Methods: This retrospective cohort study analysed all formal complaints about all registered chiropractors, osteopaths, and physiotherapists in Australia lodged with health regulators between 2011 and 2016. Based on initial assessments by regulators, complaints were classified into 11 complaint issues across three domains: performance, professional conduct, and health. Differences in complaint rate were assessed using incidence rate ratios. A multivariate negative binomial regression model was used to identify predictors of complaints among practitioners in these professions. Results: Patients and their relatives were the most common source of complaints about chiropractors, osteopaths and physiotherapists. Concerns about professional conduct accounted for more than half of the complaints about practitioners in these three professions. Regulatory outcome of complaints differed by profession. Male practitioners, those who were older than 65 years, and those who practised in metropolitan areas were at higher risk of complaint. The overall rate of complaints was higher for chiropractors than osteopaths and physiotherapists (29 vs. 10 vs. 5 complaints per 1000 practice years respectively, p < 0.001). Among chiropractors, 1% of practitioners received more than one complaint - they accounted for 36% of the complaints within their profession. Conclusions: Our study demonstrates differences in the frequency of complaints by source, issue and outcome across the chiropractic, osteopathic and physiotherapy professions. Independent of profession, male sex and older age were significant risk factors for complaint in these professions. Chiropractors were at higher risk of being the subject of a complaint to their practitioner board compared with osteopaths and physiotherapists. These findings may assist regulatory boards, professional associations and universities in developing programs that avert patient dissatisfaction and harm and reduce the burden of complaints on practitioners.

Correction to: Outcomes of notifications to health practitioner boards: a retrospective cohort study.

The original article [1] contains a major error whereby all rates in Table 2 are mistakenly presented as 50% of their true values; this error was caused by a miscalculation in annualising the original values that represented the rates.

Why do surgeons receive more complaints than their physician peers?

BACKGROUND: Compared with other doctors, surgeons are at an increased risk of medicolegal events, including patient complaints and negligence claims. This retrospective study aimed to describe the frequency and nature of complaints involving surgeons compared with physicians. METHODS: We assembled a national data set of complaints about surgeons and physicians lodged with medical regulators in Australia from 2011 to 2016. We classified the complaints into 19 issues across four domains: treatment and procedures, other performance, professional conduct and health. We assessed differences in complaint risk using incidence rate ratios (IRRs). Finally, we used a multivariate model to identify predictors of complaints among surgeons. RESULTS: The rate of complaints was 2.3 times higher for surgeons than physicians (112 compared with 48 complaints per 1000 practice years, P < 0.001). Two-fifths (41%) of the higher rate of complaints among surgeons was attributable to issues other than treatments and procedures, including fees (IRR = 2.68), substance use (IRR = 2.10), communication (IRR = 1.98) and interpersonal behaviour (IRR = 1.92). Male surgeons were at a higher risk of complaints, as were specialists in orthopaedics, plastic surgery and neurosurgery. DISCUSSION: Surgeons are more than twice as likely to attract complaints as their physician peers. This elevated risk arises partly from involvement in surgical procedures and treatments, but also reflects wider concerns about interpersonal skills, professional ethics and substance use. Improved understanding of these patterns may assist efforts to reduce harm and support safe practise.

Vexatious, Misconceived and Avoidable Reports by Peers to Medical Regulators: A Qualitative Study of Health Practitioners in Australia.

The introduction of a mandatory duty to report health practitioners who engage in notifiable conduct has heightened concerns about the potential for notifications to be motivated by rivalry or spite, rather than genuine concern for patient safety. The research discussed in this article explores the views and experiences of health sector professionals in Australia regarding vexatious and misconceived notifications by doctors against other doctors. Interviewees believed most mandatory reports are made on strong grounds with sound motives. Under-reporting was seen as a more significant problem than over-reporting. Three types of inappropriate reports are identified: misconceived reports resulting from a misunderstanding of the reporting thresholds; vexatious reports made with the intention of causing trouble for another practitioner; and avoidable reports where the threshold for reporting need not have been reached if colleagues or employers provided early appropriate support. In light of recent mandatory reporting laws, this article offers recommendations that may assist in supporting appropriate reports and reducing the number of inappropriate reports.

Disclosing Adverse Events to Patients: International Norms and Trends.

OBJECTIVES: There is a growing expectation in health systems around the world that patients will be fully informed when adverse events occur. However, current disclosure practices often fall short of this expectation. METHODS: We reviewed trends in policy and practice in 5 countries with extensive experience with adverse event disclosure: the United States, the United Kingdom, Canada, New Zealand, and Australia. RESULTS: We identified 5 themes that reflect key challenges to disclosure: (1) the challenge of putting policy into large-scale practice, (2) the conflict between patient safety theory and patient expectations, (3) the conflict between legal privilege for quality improvement and open disclosure, (4) the challenge of aligning open disclosure with liability compensation, and (5) the challenge of measurement related to disclosure. CONCLUSIONS: Potential solutions include health worker education coupled with incentives to embed policy into practice, better communication about approaches beyond the punitive, legislation that allows both disclosure to patients and quality improvement protection for institutions, apology protection for providers, comprehensive disclosure programs that include patient compensation, delinking of patient compensation from regulatory scrutiny of disclosing physicians, legal and contractual requirements for disclosure, and better measurement of its occurrence and quality. A longer-term solution involves educating the public and health care workers about patient safety.

Views on mandatory reporting of impaired health practitioners by their treating practitioners: a qualitative study from Australia.

OBJECTIVE: To explore the views and experiences of health sector professionals in Australia regarding a new national law requiring treating practitioners to report impaired health practitioners whose impairments came to their attention in the course of providing treatment. METHOD: We conducted a thematic analysis of in-depth, semistructured interviews with 18 health practitioners and 4 medicolegal advisors from Australia's 6 states, each of whom had experience with applying the new mandatory reporting law in practice. RESULTS: Interviewees perceived the introduction of a mandatory reporting law as a response to failures of the profession to adequately protect the public from impaired practitioners. Mandatory reporting of impaired practitioners was reported to have several benefits: it provides treating practitioners with a 'lever' to influence behaviour, offers protections to those who make reports and underscores the duty to protect the public from harm. However, many viewed it as a blunt instrument that did not sufficiently take account of the realities of clinical practice. In deciding whether or not to make a report, interviewees reported exercising clinical discretion, and being influenced by three competing considerations: protection of the public, confidentiality of patient information and loyalty to their profession. CONCLUSIONS: Competing ethical considerations limit the willingness of Australian health practitioners to report impaired practitioner-patients under a mandatory reporting law. Improved understanding and implementation of the law may bolster the public protection offered by mandatory reports, reduce the need to breach practitioner-patient confidentiality and help align the law with the loyalty that practitioners feel to support, rather than punish, their impaired colleagues.

Outcomes of notifications to health practitioner boards: a retrospective cohort study.

BACKGROUND: Medical boards and other practitioner boards aim to protect the public from unsafe practice. Previous research has examined disciplinary actions against doctors, but other professions (e.g., nurses and midwives, dentists, psychologists, pharmacists) remain understudied. We sought to describe the outcomes of notifications of concern regarding the health, performance, and conduct of health practitioners from ten professions in Australia and to identify factors associated with the imposition of restrictive actions. METHODS: We conducted a retrospective cohort study of all notifications lodged with the Australian Health Practitioner Regulation Agency over 24 months. Notifications were followed for 30-54 months. Our main outcome was restrictive actions, defined as decisions that imposed undertakings, conditions, or suspension or cancellation of registration. RESULTS: There were 8307 notifications. The notification rate was highest among doctors (IR = 29.0 per 1000 practitioner years) and dentists (IR = 41.4) and lowest among nurses and midwives (IR = 4.1). One in ten notifications resulted in restrictive action; fewer than one in 300 notifications resulted in suspension or cancellation of registration. Compared with notifications about clinical care, the odds of restrictive action were higher for notifications relating to health impairments (drug misuse, OR = 7.0; alcohol misuse, OR = 4.6; mental illness, OR = 4.1, physical or cognitive illness, OR = 3.7), unlawful prescribing or use of medications (OR = 2.1) and violation of sexual boundaries (OR = 1.7). The odds were higher where the report was made by another health practitioner (OR = 2.9) or employer (OR = 6.9) rather than a patient or relative. Nurses and midwives (OR = 1.8), psychologists (OR = 4.5), dentists (OR = 4.7), and other health practitioners (OR = 5.3) all had greater odds of being subject to restrictive actions than doctors. CONCLUSIONS: Restrictive actions are the strongest measures health practitioner boards can take to protect the public from harm and these actions can have profound effects on the livelihood, reputations and well-being of practitioners. In Australia, restrictive actions are rarely imposed and there is variation in their use depending on the source of the notification, the type of issue involved, and the profession of the practitioner.

Suicide by health professionals: a retrospective mortality study in Australia, 2001-2012.

OBJECTIVES: To report age-standardised rates and methods of suicide by health professionals, and to compare these with suicide rates for other occupations. STUDY DESIGN: Retrospective mortality study. SETTING, PARTICIPANTS: All intentional self-harm cases recorded by the National Coronial Information System during the period 2001-2012 were initially included. Cases were excluded if the person was unemployed at the time of death, if their employment status was unknown or occupational information was missing, or if they were under 20 years of age at the time of death. Suicide rates were calculated using Australian Bureau of Statistics population-level data from the 2006 census. MAIN OUTCOME MEASURES: Suicide rates and method of suicide by occupational group. RESULTS: Suicide rates for female health professionals were higher than for women in other occupations (medical practitioners: incidence rate ratio [IRR], 2.52; 95% CI, 1.55-4.09; P < 0.001; nurses and midwives: IRR, 2.65; 95% CI, 2.22-3.15; P < 0.001). Suicide rates for male medical practitioners were not significantly higher than for other occupations, but the suicide rate for male nurses and midwives was significantly higher than for men working outside the health professions (IRR, 1.50; 95% CI 1.12-2.01; P = 0.006). The suicide rate for health professionals with ready access to prescription medications was higher than for those in health professions without such access or in non-health professional occupations. The most frequent method of suicide used by health professionals was self-poisoning. CONCLUSION: Our results indicate the need for targeted prevention of suicide by health professionals.

Prevalence and Characteristics of Physicians Prone to Malpractice Claims.

BACKGROUND: The distribution of malpractice claims among physicians is not well understood. If claim-prone physicians account for a substantial share of all claims, the ability to reliably identify them at an early stage could guide efforts to improve care. METHODS: Using data from the National Practitioner Data Bank, we analyzed 66,426 claims paid against 54,099 physicians from 2005 through 2014. We calculated concentrations of claims among physicians. We used multivariable recurrent-event survival analysis to identify characteristics of physicians at high risk for recurrent claims and to quantify risk levels over time. RESULTS: Approximately 1% of all physicians accounted for 32% of paid claims. Among physicians with paid claims, 84% incurred only one during the study period (accounting for 68% of all paid claims), 16% had at least two paid claims (accounting for 32% of the claims), and 4% had at least three paid claims (accounting for 12% of the claims). In adjusted analyses, the risk of recurrence increased with the number of previous paid claims. For example, as compared with physicians who had one previous paid claim, the 2160 physicians who had three paid claims had three times the risk of incurring another (hazard ratio, 3.11; 95% confidence interval [CI], 2.84 to 3.41); this corresponded in absolute terms to a 24% chance (95% CI, 22 to 26) of another paid claim within 2 years. Risks of recurrence also varied widely according to specialty--for example, the risk among neurosurgeons was four times as great as the risk among psychiatrists. CONCLUSIONS: Over a recent 10-year period, a small number of physicians with distinctive characteristics accounted for a disproportionately large number of paid malpractice claims.