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Health Alert

Law Report - Failure to Make a Mandatory Report

| Published by Michael Gorton AM

Written by Michael Gorton AM, Principal at Russell Kennedy Lawyers and Laura Haffenden, Law Student

Requirements for health practitioners to make mandatory reports under the Health Practitioner Regulation National Law have been in place since 2010. It requires health practitioners to make a mandatory report in relation to the conduct of the health practitioners. Conduct that must be reported includes:-

  • Practice affected by drugs and alcohol
  • Sexual misconduct in practice
  • Practitioners impairment that imposes a risk to the public (include physical or mental health)
  • A practitioner who places the public at risk of harm in a way that constitutes a significant departure from acceptable professional standards

A recent legal case highlights the consequences for a doctor who fails to make a mandatory report.

In a case before the New South Wales Civil and Administrative Tribunal, a senior neurosurgeon was suspended for three months for, amongst other things, failure to report a registrar who died in connection with a drug overdose. The neurosurgeon who was a mentor of the registrar, and was involved in a relationship with the registrar, failed to report the use of drugs. The neurosurgeon went so far as to prescribe Pregabalin to assist the registrar’s withdrawal from the drug GHB. In 2013, the registrar died of an overdose. The circumstances both of the neurosurgeon drug use, and failure to report the drug use of the registrar came to light.

The failure to report carried serious implications. By reporting a colleague’s drug use, it may enable the colleague to seek help and assistance. It also enables the regulator to put in place relevant conditions, to ensure that the public and patients are protected. In this case, it was argued that the failure to report by the neurosurgeon may have contributed to the death of a colleague.

Whilst there is understandable reluctance to “dob in” a colleague, the obligations of mandatory reporting are fixed by law, and can carry consequences for those who breach these obligations.

Doctors will also be aware of the current debate in relation to the mandatory reporting provisions in relation to impairments, which may create a reluctance for doctors, who have any impairment, from seeking the assistance of medical colleagues and clinical help. This issue is a live debate at present, with New South Wales indicating that it may reverse the position in relation to mandatory reporting for impairment. Western Australia has, since 2010, not required mandatory reporting in relation to an impairment by a treating doctor. Western Australia has differed from the provisions in other States.

In the case of the neurosurgeon, following suspension there will be a number of conditions on the practice of the neurosurgeon. It serves as a reminder that mandatory reporting is an obligation on all health practitioners.

For more information, please contact Michael Gorton AM