SEPTEMBER 2008

IN THIS ISSUE

Please Select an Article to Read

• Australian Law Reform Commission’s Privacy Report – Health Update
• Special Commission of Inquiry into NSW Public Hospitals releases its First Report
• Pharmacists and Franchising
• Accessing funds in the current market environment
• Aged Care Update
• Amendments to the NSW Medical Practice Act introduce compulsory reporting of doctors for sexual misconduct, substance abuse and incompetent clinical practice
• Case note: Peer evidence as to competent medical practice
• Proposed changes to general requirements for labelling of medicines
• Windfall for Medical Insurers in Medical Malpractice Cases
• Protecting Root Cause Analysis in NSW private health facilities
• Case Note: Court Of Appeal reversal on Domestic Assistance Threshold under Civil Liability Act
• New procedures for Medical Negligence Claims in the NSW Supreme Court
• IVF Donors to lose anonymity under new legislation in New South Wales

 

Amendments to the NSW Medical Practice Act introduce compulsory reporting of doctors for sexual misconduct, substance abuse and incompetent clinical practice

The Medical Practice Amendment Act 2008 has introduced strict reporting requirements for doctors who have reason to believe one of their colleagues is practising medicine unsafely. 

The amendments introduce the concept of “reportable misconduct”.  A doctor commits reportable misconduct if he or she:

• practises medicine while intoxicated by drugs or alcohol;
• practises medicine in a manner that constitutes a flagrant departure from accepted standards of professional practice or competence and risks harm to some other person; or
• engages in sexual misconduct in connection with the practice of medicine.

A doctor who believes, or ought reasonably to believe, that another doctor has committed reportable misconduct must report the conduct to the NSW Medical Board as soon as practicable.  The report will be dealt with by the Board in the same way as any other complaint against a medical practitioner.

A failure to report a colleague to the Board under this provision may constitute unsatisfactory professional conduct or professional misconduct under Act, exposing any doctor who does not submit a report to the risk of disciplinary action.  The Act further provides that any report made in good faith does not constitute a breach of professional etiquette or ethics and cannot result in liability for defamation or malicious prosecution.

While it is clearly desirable to encourage doctors to come forward if they believe one of their colleagues is not practising medicine safely or appropriately, the new reporting requirements are extremely onerous and may be uncertain in their application.  It is not clear, for example, what level of suspicion or evidence is required before a doctor should “reasonably believe” that a colleague is committing reportable misconduct.  It is also difficult to know what constitutes a “flagrant departure” from accepted professional practice.

There is also a concern that the new provisions will encourage a culture of individual blame within the health system at exactly the time that advocates of better quality and safety measures are trying to focus on systems improvements rather than individual performance.

However, given the recent concerns about the cases of Dr Patel and Dr Reeves, there was clearly a political imperative to introduce tighter regulatory procedures for identifying and disciplining doctors who do not adhere to appropriate professional standards.

Written by Julie Hamblin, Partner, Sydney