AHPRA & Health Ombudsman Prosecutions

All professions have watchdog organisations scrutinizing the conduct of their members.

In the case of Health Care Practitioners, the primary one is AHPRA.  Whenever a complaint materializes against a Practitioner the coercive powers of this investigative/prosecuting body are enlivened.

Even activity that is not criminal and occurs outside the scope of a Practitioner’s working life can trigger their involvement.

 

CAN CONDUCT OCCURRING OUTSIDE OF WORK RESULT IN AHPRA INTERVENTION

The answer to that is most assuredly yes.  The offending need not be criminal and need not even occur in a work environment or directly impact patients or other health care professionals.

In the case of Ellis v Medical Board of Australia (Review and Regulation) [2020] VCAT 862 a 76-year-old doctor had his registration immediately suspended because of posts he had made on social media.

When unsuccessfully appealing that decision the Tribunal found that despite his undertaking to refrain from any further similar postings he posed a serious risk to persons and it was necessary to take the immediate action of suspending his registration.  This view was reached despite any evidence that his posts had manifested in a risk to anybody at all.

The entire case, as it was made clear at the commencement of the judgement, centred around him simply publishing views that did not fit with contemporary thinking.

 

WILL MY LAWYERS CONDUCT IN THE CRIMINAL COURT AFFECT AHPRA

The short answer to that is also yes.

It is very often the case that an AHPRA investigation/prosecution will follow a criminal one.  And inevitably, AHPRA (or another Professional Body) will await, not only the outcome but also how your case was presented to the criminal court.

It may be that your lawyer’s conduct in the criminal court binds what can then be said on your behalf before the Tribunal.

One such case is Health Ombudsman v JKR [2022] QCAT 29.

In this case, the applicant had pleaded guilty in the Magistrates Court to forgery and uttering and was fined $600 without a conviction being recorded.  On the face of it, this appears to be a good result.

The problem, though, seems to be that the lawyer who appeared before the Magistrate presented medical evidence purportedly demonstrating the defendant’s remorse, but before the Tribunal it was asserted the same evidence showed the applicant to be minimising the criminal culpability.

Quite correctly, the Tribunal seized on the inconsistent use that had already been made of that evidence and rejected its admission for that purpose.

This is an easily digestible example of the holistic way any Health Care Practitioner must view a criminal charge.  In theory, what your lawyer does in a criminal court may critically hamstring your case in the face of an AHPRA prosecution.

Devastatingly, my experience defending prosecutions from the Australian Health Practitioner Regulation Agency (AHPRA), the Health Ombudsman and other National Regulatory entities is that it commences with an immediate suspension of your ability to keep working as some kind of health care professional.

Even in situations where you have been charged (not convicted) and the police have released you on bail – you will still not be permitted to work with the suspension in place.

Appealing Your Suspension

If that happens and you are suspended from practising, appealing that suspension is the only way to return to employment. In my experience, the prosecuting bodies are generally very cooperative when appealing a suspension to allow a return to work.

Even where the allegations are very serious, it can be done.

Have You Been Suspended or Charged By Police?

Michael McMillan has years of experience dealing with AHPRA and other Australian health regulatory bodies.

If you’ve been suspended from practising by AHRPA or the Health Ombudsman and require assistance, contact Michael McMillan today on 0409 273 430.

Recent Cases

Rao and Medical Board of Australia [2022]

In the recent decision, Rao and Medical Board of Australia [2022] WASAT 55 the Western Australian Administrative Tribunal heard that a young medical student charged with what would be rape in Queensland had been immediately suspended from work by the Medical Board.

The case against him couldn’t be described as weak given that it included an alleged confessional statement recorded from him recorded from a telephone conversation the alleged victim had with him before him being charged.

Typically, any attempt to persuade the Board that their public safety concerns could be allayed by imposing strict conditions on the young medic practising fell on deaf ears.

At the successful hearing, the Board were reminded that the public interest is not only protecting (in this case) female patients from a potential sex offender but also:

“There is a public interest in members of health professions, in whom training and expenditure has been made, being able to practice.”

Ultimately, he was allowed to return to work on a supervised basis.

Jeffrey v Medical Board of Australia [2021] QCAT 289

Once on, though, the prosecuting body often refuses to remove them – even after they appear to have served their purpose and are now becoming punitive.  This is what was at the heart of the case of Jeffrey v Medical Board of Australia [2021] QCAT 289.  In that case, the medical practitioner consented to conditions being imposed on his ability to practice after a single act of alleged malpractice.  But, after the term of those conditions had expired, the Board refused to relinquish its control over him, despite the fact he had been entirely compliant during his period of conditional practice.  When this dispute came before the Tribunal, in removing that condition at issue, it was noted:

“Although the removal of the conditions would mean the Board loses the ability to supervise the applicant’s practice, given his performance since, to maintain conditions as they presently stand would, in my opinion, go beyond what is protective and would verge on being punitive.”

The point of this short note is to highlight just how difficult it can be for a healthcare professional to deal with these prosecuting bodies. If you require vigorous assistance with such a matter, please do not hesitate to contact me.