Reinstatement of Previously Deregistered Health Professionals in Australia: Legal Determinations of Risk, Patient Safety, and Public Interest
| Author | Jenni Millbank |
| DOI | http://doi.org/10.1177/0067205X221146334 |
| Published date | 01 March 2023 |
| Date | 01 March 2023 |
| Subject Matter | Articles |
Article
Federal Law Review
2023, Vol. 51(1) 3–30
© The Author(s) 2023
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DOI: 10.1177/0067205X221146334
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Reinstatement of Previously
Deregistered Health Professionals in
Australia: Legal Determinations of
Risk, Patient Safety, and Public
Interest
Jenni Millbank*
Abstract
Each year approximately 60 registered health practitioners in Australia have their registration
cancelled for reasons of serious misconduct or, less commonly, impairment or criminal conviction.
Cancellation remains in force unless the practitioner successfully brings a later application to be
restored to the register. While the decision to deregister takes place in a public tribunal process,
with published reasons, throughout most of Australia determinations concerning reinstatement are
undertaken by professional Boards in private. This research examines available reinstatement
decisions concerning 86 health practitioners to analyse how the health regulatory system in
Australia determines questions of public interest and public safety when deciding whether de-
registered health practitioners who seek reinstatement are now ‘fit and proper’to practise their
profession again. There is a considerable body of case law on the meaning of fitness to practise for
health professionals, and the process by which it can be assessed. However, there is remarkably
little legislative content or administrative guidance to structure the reinstatement inquiry, assist
applicants in the process or to ensure consistency of decision-making, in particular by drawing
attention to broader public protection factors. Reinstatement determinations would be improve d
through the introduction of structured guidance on how to apply the paramount objective of public
protection. The article also suggests that having all reinstatement determinations take place in public
with published reasons would improve public understanding of, and confidence in, the rein-
statement process.
Received 28 September 2021
* Distinguished Professorof Law, UTS. Thanks to the UTS Law Health Justice Centre for funding; to Ray Carr for research
assistance and to David Carter, Tim David and the reviewers for their helpful comments on an earlier draft. The author
was a part time Senior Member of NCAT from 2015–2021 making health practitioner decisions, including two that
comprised part of this dataset. NCAT had no role in design of the research norin the views expressed here. ATTESTATION:
I confirm I am the sole author of this original work.
No person is beyond redemption. To hold otherwise would be the ultimate counsel of despair.
1
Reformations of character and of behaviour can doubtless occur but theiroccurrence is not the usual but
the exceptional thing. …it must require clear proof to show some years later he has established himself
as a different man.
2
I Introduction
16 health professions in Australia are regulated by a national registration, accreditation, and
professional discipline scheme that has been operating since 2010 —the National Law.
3
Each year
approximately 220 of these health professionals face serious disciplinary charges in a public tribunal
for reasons of serious misconduct or, less commonly, impairment or criminal conviction
4
and
around 60 consequently have their registration cancelled. Deregistration prevents the practitioner
from practising in their profession anywhere in Australia, or from using a professional title such as
‘doctor’. Unlike an order for suspension, cancellation of registration does not expire and remains in
force until the practitioner successfully brings a later application to be reinstated or restored to the
register. In doing so, it is the practitioner who bears the onus of proof to demonstrate on the balance
of probabilities that they are now a ‘fit and proper’person and safe to practise the profession.
It is estimated that only around 10–15% of previously deregistered health practitioners seek to
return to their former profession.
5
While the Australian Health Practitioner Regulation Agency
(‘AHPRA’), records the number of practitioners deregistered nationally (disaggregated to indicate
those in the national scheme excluding NSW, versus those in NSW, and by registered profession),
6
there is no public data on the number of practitioners who apply each year to have their registration
restored following disciplinary cancellation.
7
There is also, therefore, no data on success rates of
1. Edelsten v Medical Practitioners Board of Victoria [2000] VSC 565, [2] per Nathan J.
2. Ex Parte Tziniolis; Re The Medical Practitioners Act (1966) 67 SR (NSW) 448, 460–1, quoted with approval by the Court
of Appeal in HCCC v Litchfield (1997) 41 NSWLR 630, 637.
3. This is a uniform scheme enacted through state and territory laws adopting (with some variation) a model law first enacted
in Queensland: Health Practitioner Regulation National Law Act 2009 (Qld) (‘National Law’). For background, see Ian
Freckelton, ‘Regulation of Health Practitioners: National Reform in Australia’(2010) 18(2) Journal of Law and Medicine
207.
4. National Law s 196(4); Health Practitioner Regulation National Law Act (NSW) 2009 (NSW) ss 149C(5), (5A) (‘NSW
Law’).
5. Comparing the number of reinstatement cases in NSW (bearing in mind that it is the only jurisdiction for which the cases
represent reinstatement applications in absolute numbers) with AHPRA deregistration data, see (n 6), produces an
application ratio for reinstatement of approximately 15% among the deregistered population. In the UK, there were 76
applicants for restoration to the register during a period in which 636 doctors were deregistered (producing a ratio of
approx. 12%): Bryony Milroy et al, ‘The Outcome of Applications for Restoration to the Medical Register Following
Disciplinary Erasure’(2021) 89(1) Medico-Legal Journal 13, 16.
6. Outcomes of disciplinary proceedings at Tribunal level, divided into HPCA (NSW) and AHPRA (rest of Australia) are
reported by AHPRA in Annual Reports from 2011/2: see AHPRA, Annual Report 2012/3 (Report, 2014) 136; AHPRA,
Annual Report 2013/4 (Report, 2015) 133–4; AHPRA, Annual Report 2014/5 (Report, 2016) 38–9; AHPRA, Annual
Report 2015/6 (Report, 2017) 50–1; AHPRA, Annual Report 2016/7 (2018) 53–4; AHPRA, Annual Report 2017/8
(Report, 2019) Table 21; AHPRA, Annual Report 2018/9 (Report, 2020) Table N6; AHPRA, Annual Report 2019/20
(Report, 2021) Table N6.
7. The author made a data request to AHPRA on 25 August 2021, supported by UTS Ethics Approval ETH21-6526. The
request sought the number of applications for registration to National Boards by health practitioners previously subject to a
cancellation order on an annual basis from 2012/13 to 2019/20. On 13 December 2021 APHRA research staff confirmed
that this would require manual data extraction and undertook to pursue the request but were unable to fulfil this by the time
of publication in December 2022.
4Federal Law Review 51(1)
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