Surgery to the national health law to affect 800,000 health practitioners

Tim Gordon, Kirby Reid and Chris Piggott-McKellar
26 Oct 2022
Time to read: 3 minutes

Ahpra’s functions and powers to regulate Australian health practitioners are being expanded.

Australia’s more than 800,000 registered health practitioners across 16 professions should be alert to new laws recently passed by the Queensland Parliament, which impact the way they are registered and disciplined by national regulatory bodies.

The changes including altering and expanding the accreditation and disciplinary powers of the national regulator (the Australian Health Practitioner Regulation Agency (Ahpra)) and national boards, and refocussing the guiding principles of national health regulation and accreditation scheme known as the National Law.

The National Law is not a law of the Commonwealth, but is an example of co-operative federalism where States and Territories enact similar or parallel legislation to achieve a common purpose.

As Queensland is the lead jurisdiction for the National Law, changes made to the Health Practitioner Regulation National Law Act 2009 (Qld) by the Health Practitioner Regulation National Law and Other Legislation Amendment Act 2022 are likely to cascade through to all other States and Territories.

Creating national regulation for health practitioners

The National Law established Ahpra in 2010 as the single national regulatory and accreditation body, making it easier for health practitioners to work across States and Territories. The National Law also establishes a system of co-regulation between Health Ombudsmans (and in New South Wales, the Health Care Complaints Commission) and Ahpra to handle complaints against health practitioners.

Under the National Law, each of the 16 professions (such as doctors, nurses, psychologists and chiropractors) also has a national board which regulates that profession, registers practitioners, and develops professional standards and guidelines.

There are currently more than 800,000 registered health practitioners across 16 professions under the National Law – up from 500,000 across 10 professions when the scheme commenced on 1 July 2010.

The scheme was established under the Intergovernmental Agreement for a National Registration and Accreditation Scheme for the Health Professions between all states and territories and the Commonwealth in March 2008. All States and Territories passed corresponding laws to give effect to the agreement, with Queensland chosen as the lead jurisdiction.

The amendments brought about by the Health Practitioner Regulation National Law and Other Legislation Amendment Act 2022 were agreed to by Australian Health Ministers on 18 February 2022.

Refocusing the guiding principles of the National Law

The Act inserts a new paramount principle in section 3A of the National Law, making protection of the public and public confidence in the safety of services provided by registered health practitioners and students paramount considerations.

Some jurisdictions, like Queensland and New South Wales, already include the health and safety of the public as paramount considerations. However, the Act will for the first time require public confidence in the safety of services to be front and centre in all decisions and actions taken under the National Law.

This tilt towards ensuring public confidence may alter the types and severity of sanctions imposed against health practitioners during disciplinary proceedings.

The Act also inserts several new principles to build the capacity of the Australian health workforce to deliver services which are responsive to Aboriginal and Torres Strait Islander Peoples and their health.

Making public statements about health practitioners

The Act enables health regulators to issue public statements about health practitioners who are the subject of investigations or disciplinary proceedings, and whose conduct the regulator considers poses a serious risk to public health and safety.

The new powers inserted as Part 8AA therefore effectively enables regulators to warn the public about risks posed by practitioners before disciplinary proceedings are finalised.

As public statements can be made where there has been no formal finding of misconduct, this amendment has the potential to considerably impact the reputation of practitioners.

Under the Act, health regulators have been given wide powers to make the statements “in a way the body considers appropriate” but only where they reasonably believe there is a serious risk and it is necessary to issue a public statement to protect public health or safety. The decision to issue a public statement will be also reviewable by a tribunal.

The Act also enables regulators to take swift action against unregistered health practitioners, by issuing interim prohibition orders which can prohibit the provision of certain services or the use of certain titles.

Allowing regulators a discretion not to refer disciplinary matters to a tribunal

Currently, if a national board has investigated a practitioner and formed a reasonable belief they have engaged in professional misconduct, they must refer the matter to the Health Ombudsman and, usually, to a tribunal for resolution.

The Act inserts a new section 193A which gives a national board a discretion not to refer the practitioner if the board decides there is no public interest in the matter being heard by a responsible tribunal. Decisions made not to refer practitioners to the relevant tribunal must be disclosed in Aphra’s annual report.

Other changes to the National Law at a glance

The Act also includes various amendments to the overall governance of the National Law, including by:

  • updating the functions of Ahpra to include providing advice to Health Ministers on the operation of the National Law;
  • increasing the maximum penalties for certain offences under the National Law; and
  • expanding the entities to which regulators can provide information about finalised disciplinary proceedings.

The Act also made several amendments to the Health Ombudsman Act 2013 (Qld).

Timeframes for the changes

The changes to the National Law brought about by the Act will be phased in over a 12-month period, to enable those States and Territories which do not automatically adopt the Queensland Act as their version of the National Law to make required changes and to ensure updates to Aphra’s systems, policies, and procedures are in place.

Practitioners can find resources on the changes on Ahpra’s website.

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Clayton Utz communications are intended to provide commentary and general information. They should not be relied upon as legal advice. Formal legal advice should be sought in particular transactions or on matters of interest arising from this communication. Persons listed may not be admitted in all States and Territories.