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AHPRA in Wonderland (Part 1): Down the Rabbit Hole

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With the Review of the National Registration and Accreditation Scheme for health professions being released today, Dr Leong Ng* begins his series on the questionable body administering the health profession.

Part 1 

Another Tea-party to protect the public — or the hosts?

Dear, dear! How queer everything is today! And yesterday things went on just as usual. I wonder if I've been changed in the night? Let me think: was I the same when I got up this morning? I almost think I can remember feeling a little different. But if I'm not the same, the next question is, Who in the world am I? Ah, that's the great puzzle!'

~ Alice in Alice’s Adventures in Wonderland, by Lewis Carroll

SOME CHILDREN’S STORIES, particularly those written by brilliant mathematicians or theologians, are imaginative and carry cautionary – though fantastical – tales (unlike some barely thought through initiatives by governments). They are based upon real life events. Such is the case of Lewis Caroll’s Alice’s Adventures in Wonderland.

Down the Rabbit Hole: A short history lesson

The Australian Health Practitioner Regulation Agency was the well-intentioned brainchild of the previous Labor government (in consultation with the COAG Health Ministers’ Council) as advised in a 2004 COAG Commissioned Project on the Health Workforce for Quality Healthcare for the decade from 2006 onwards.

The Project resulted in recommendations for far reaching reforms, stating:

'The Commission’s proposals will help ensure that safe, quality care is delivered by well trained health workers with the right skills and in the most cost-effective fashion. Demand for health care is growing and our responses need to be financially sustainable. The proposals will benefit all Australians, including those living in outer metropolitan, rural and remote areas, and others with special needs where workforce shortages are particularly evident.'

The recommendations led to the formation of another Government body — the Australian Health Practitioner Regulation Agency, known by its acronym, AHPRA. The intended aims were, amongst many, the standardisation of the licensing and other regulatory requirements throughout the states and territories of the Commonwealth of a large array of health professionals.

Article published in The Australian (7/12/12)

National Law: Autocratic rule by the Queen of Hearts?

In July 2010, the Health Practitioner National Law – or 'national law', as it became known – was ratified nationally (except for Western Australia, which only joined the 'national scheme' four months later) following a lead enactment, which came from Queensland in 2009.

AHPRA also inherited baggage including some in the form of bureaucrats and what appears to be a toxic culture of arrangements from some previous state medical boards.

What was not clearly articulated was that the national law was not actually national. It is a set of purportedly harmonized individual state statutes, each subsequently adapted and modified by each signatory state from the Queensland lead enactment of 2009. 

This mash up of a 'national law' is, therefore, not Commonwealth Law.

The only advantage it confers is portability — obviating challenges of separate costly registration processes for health practitioners in multiple jurisdictions.

Yet, from enactment, of immediate concern was that any error or misapplication of the national law in one state jurisdiction was instantly transmitted to all national law jurisdictions, causing further unnecessary harm to a health professional.

A Pandora’s Box of challenges opened

In a curious contemporaneous example, a recent proposal to suspend (versus immediately suspending) Dr Philip Nitschke by AHPRA South Australia was followed only week later by a suspension. This can only be intended to impact on his future practice (and livelihood) in the regional Northern Territory, where his main practice is said to be.

Equally of concern, it is one that sends a message of an inconsistent and disjointed decision-making process, which is being made to look as being “fair.”

The case now needs to be swiftly, fairly and correctly resolved — justice delayed is justice denied.

The technicality of an application transfer of a jurisdiction hearing from a state to a territory – where Dr Nitschke is based (i.e. the Northern Territory) – will create an interesting legal jurisdictional argument.

The AHPRA interpretation of the legislation that one state jurisdiction is able to investigate (and decide) on behalf of another may be almost unique.  Commonwealth law is ascendant over state statutes, but there is no clear Commonwealth law governing health practice regulation. AHPRA can therefore choose to do whatever it likes in one jurisdiction about a registrant from another.

As the case is sub judice, we will not discuss it in any great detail here — except to note that others have raised an issue of “duty of care” versus “duty to care”. Indeed, Dr Nitschke has made a jurisdictional challenge.

Indeed it may appear that AHPRA proceeded with another “off with his head” executions with the “ deregistration “ of Dr Nitschke with no full hearing — as reported in by the mainstream press. However, this cannot be corroborated by official reports from the Official Law Reports or from AHPRA. Is it trial by media (again)? 

A second trans-jurisdictional action seems to have recently emerged with a public domain publication of a reprimand decision on Dr P. Shetty, that could be argued to appear more like a public show of political vested interests in “protecting the public” urged on by  controversial mandatory reporting guidelines.

Also, this is where the recent reform (March 2014) in the Privacy Act 1988 (Cth) fails in some jurisdictions. It fails because, as per Commonwealth law, if there are no state Privacy laws, the State Freedom of Information legislation is then applied. 

This, in its current state, restricts false information about a registrant being easily obtained and rapidly corrected. (For example, WA does not have state privacy legislation.)

To simply illustrate this, if AHPRA NSW (or the Australian Medical Council Pty Ltd or the NSW Medical Council) inserts false, negative material into my registration file, I have no easy redress to view it and correct the falsities in WA without having to traverse a process with the Freedom of Information Commissioner, after which I need to find a jurisdiction to have the matter heard.

Another matter of serious concern is that, for summarily dismissed complaints to AHPRA by both the public and practitioners, there may be no clearly defined jurisdiction (that is, an “orphan jurisdiction” as opined by the applicant in a recent case before the Administrative Appeals Tribunal) for a timely judicial review.

These are against the rules of natural justice, due process and procedural fairness, thereby rendering such decisions unlawful and, unconstitutional in any true democracy.

Two of the four strategic points recommended by the Productivity Commission (page xviii) were, inter alia:

'A greater emphasis on retention and re-entry will similarly help to stabilise, if not increase, workforce numbers — as recent initiatives in the nursing area in some jurisdictions have demonstrated.'

And:

'Improving the productivity and effectiveness of the available workforce, and its responsiveness to changing needs and pressures, will increase the level and quality of the workforce services that can be supported by any given level of spending. This in turn will help to reduce the rate of growth in future health care expenditure, without compromising safety and quality.'

The outcome events of recent years and the state of the legislation do not reflect these policy recommendations, though some government bureaucrats may like to think otherwise.

All these look like a chapter from Lewis Caroll’s children’s novel with AHPRA in its role as the Mad Hatter. One may also perhaps wish to explore whether egregious reactions of some regulatory decisions makers may be that in response to the Alice in Wonderland Syndrome.

Please consider signing this Petition.

*Disclosure: Colleagues and friends have cautioned me to exercise anonymity in this piece to avoid reprisals. They know the culture too well.  After having carefully thought about the potential benefits for the Australian public versus the potential harm to myself, I have decided to be transparent and exercise my constitutional right to freedom of speech and thought. Secondly, as a senior medical practitioner, bullied and maliciously damaged at the height of my international career, with virtually no access to redress, I believe there is nothing to lose. I disclose that I was a victim of alleged malfeasance by the NSW Medical Board, NSW Health and the RACP in 2006.  This was only part resolved by my taking up the matter to the NSW Medical Tribunal at the end of Apr 2009. It is in the public interest that these matters be made available for consumption in the public domain.

Part Two will continue with a summary of systematic evidence of widespread national dysfunction.

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