Health Practitioner Regulation: Has the National Law Produced National Outcomes in Serious Disciplinary Matters?

Date01 December 2019
AuthorJenni Millbank
Published date01 December 2019
DOI10.1177/0067205X19875028
Subject MatterArticles
Article
Health Practitioner Regulation:
Has the National Law Produced
National Outcomes in Serious
Disciplinary Matters?
Jenni Millbank*
Abstract
Since 2010, a national scheme regulates the registration, accreditation and discipline of health
professionals in Australia (the ‘National Law’). This research examines disciplinary cases from
tribunals nationwide to address the question: Has the national regulation of health professionals
produced consistency in outcomes in serious cases of professional misconduct? 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 analysed for the period from 1
July 2010 to 30 June 2017. Each case was coded by reference to a typology of misconduct,
practitioner characteristics and outcome, allowing for comparisons to be drawn both as between
the professions and as between jurisdictions. Major disparities were identified in outcomes across
the professions, with doctors being subject to less severe outcomes than other professions, in
particular in comparison with nurses, even when the same main head of misconduct was in issue.
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. This article examines
these disparities and explores possible contributing factors.
I Introduction
Since 2010, a national scheme regulates the registration, accreditation and discipline of health
professionals in Australia (the ‘National Law’). The sc heme began with 10 registered h ealth
* Distinguished Professor of Law, UTS. This research was funded by the UTS Law Health Justice Research Centre and UTS
PEP scheme. Thanks to David Carter, Frances Taylor, Mary-Therese Daniel and Jenny Boland for comments on previous
versions of this article, to research associate Eloise Chandler, Matej Marek for statistical analysis, and to Cindy Lam, Ruby
Wawn and Ellen O’Brien for research assistance. The author has been a part-ti me member of the NSW Civil and
Administrative Tribunal (NCAT), Occupational Division, since 2015. This role involves presiding in health disciplinary
matters, including seven cases that ultimately comprised part of the dataset. To ensure integrity of the coding, the author
did not undertake any coding of those seven cases nor discuss them with research assistants. The views expressed in this
article are those of the author alone and do not represent NCAT. NCAT had no role in the design or conduct of this
research. The author may be contacted at jenni.millbank@uts.edu.au.
Federal Law Review
2019, Vol. 47(4) 631–654
ªThe Author(s) 2019
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DOI: 10.1177/0067205X19875028
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professions, expanding to 14 professions in 2012 and then 15 from 1 December 2018. While there
is some jurisdictional variation in terms of which agencies undertake disciplinary investigations,
and slight differences in definitions and legislative provisions in some states and territories, the
scheme is a national one which introduced broadly uniform rules addressing unsatisfactory per-
formance, unprofessional conduct and misconduct. The scheme regulates over 700,000 health
professionals at the time of writing.
This research evaluates one aspect of the disciplinary process under the National Law: tribunal-
level determinations. Only matters that are designated as serious, that is, as involving a prima facie
indication of deregistrable conduct, are referred to the various state and territory-based tribunals
which then apply almost identical substantive legislative provisions. There is a serious gap in
knowledge concerning tribunal outcomes because, unlike data on complaints under the National
Law, tribunal data are not collated in a consistent manner and are not centralised. There are no
publicly accessible data on tribunal-level cases and outcomes that present complaint type, profes-
sion, or other significant factors such as gender or age. In short, the more serious the matter, the less
is known about types of misconduct and ultimate outcomes imposed.
In this study, 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
and analysed for the seven-year period from 1 July 2010 to 30 June 2017, comprising 794 matters
in total. Each case was coded by reference to a typology of misconduct, practitioner characteristics
and outcome, allowing for comparisons to be drawn both as between the professions and as
between jurisdictions.
Major disparities were identified in outcomes across the professions, with doctors being subject
to less severe outcomes than other professions, in particular in comparison with nurses, even when
the same main head of misconduct was in issue. 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. This article examines these disparities and explores possible contributing
factors.
First, this article outlines the National Law and then places an overview of findings in the
context of what is already known from previous Australian and New Zealand research on com-
plaint data and disciplinary cases. The sections that follow explore the novel findings of the study
and discuss possible explanations for major areas of variation in outcomes discovered.
II The National Law
On 1 July 2010, the Australian Health Practitioner Regulation Agency (‘AHPRA’) was created as a
single national oversight agency for the registration, accreditation and disciplining of health
professionals in Australia.
1
This was a vast and complex undertaking, consolidating eight separate
regulatory systems, comprising 74 pieces of legislation, 20 accrediting bodies and between 85 and
97 separate health practitioner registration boards across the country.
2
The development of the
National Health Practitioner Regulation Law (the ‘National Law’) is a particularly striking
achievement given the ‘breakneck’ speed with which it was undertaken.
3
The report that recom-
mended the scheme by the Productivity Commission was initiated by the Commonwealth in mid-
2004, released in January 2006,
4
and led to a detailed Intergovernmental Agreement on the scheme
that was entered into in March 2008,
5
and implemented nationwide through legislative changes in
all jurisdictions in 2009 and 2010.
6
The scheme currently regulates 15 health professions
632 Federal Law Review 47(4)

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