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

Abstract

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.