Senior or executive staff resigning and taking valuable customer and confidential information with them could result in extensive damage to a business. Post-employment restraints or restraints of trade clauses, that come into effect after employment ends, can protect the legitimate interest of the employer.
Overview of Medical Guidelines for Mandatory Notifications
The Health Practitioner Regulation National Law Act 2009 (National Law) obliges practitioners, employers of practitioners and education providers to make “mandatory notifications” to AHPRA in certain circumstances. The person providing notice must have reasonable belief that the practitioner’s conduct constitutes “notifiable conduct” or impairment for purposes of the National Law. While the National Law sets a high threshold for mandatory notification, if the person providing notice does so in “good faith”, they are generally protected by the National Law. A set of guidelines have been developed by the National Boards (under section 39 of the National Law), to provide health practitioners, employers of practitioners and education providers with guidance as to when it is appropriate to provide mandatory notification to AHPRA. An overview of these guidelines is set out below.
- Notifications are to be submitted to AHPRA and should include the basis on which they are made and the date and time when the conduct or impairment was noticed.
- All health practitioners are required to make mandatory reports about another health practitioner whose conduct is notifiable unless any of the exemptions apply. Fourteen professions are covered under the National Law. This means practitioners may be required to make notification in relation to other professions as established by the National Law outside their own area of expertise.
- Reasonable belief, you must hold a “reasonable belief” when making a mandatory notification. This means:
a.) A belief based on reasonable grounds;
b.) There should exist just and fair judgements to support the belief; and
c.) There must be a higher level of knowledge than a mere suspicion or a personal dislike of the practitioner the subject of the complaint.
4. Notifiable conduct is defined in section 140 of the National Law as conduct involving a practitioner who has (broadly speaking):
a.) practised in the profession while intoxicated by alcohol or drugs; or
b.) engaged in sexual misconduct; or
c.) placed the public at risk of substantial harm because the practitioner has an impairment; or
d.) placed the public at risk of harm because the practitioner has practised the profession in a way that constitutes a significant departure from accepted professional standards.
5. Exceptions for making a mandatory notification may arise where a practitioner making the notification:
a.) reasonably believes that notification of conduct had already been reported; or
b.) works for an insurer providing professional indemnity insurance and only becomes aware of this conduct as a result of legal proceedings or advice arising from the insurance policy; or
c.) is also a legal practitioner providing legal service to the health practitioner about whom the notification is to be made and was engaged for advice on such notifiable conduct; or
d.) is exercising functions as a member of a quality assurance committee, council or similar body which prohibits the disclosure of the information.
6. Failure to notify does not result in an offence but may lead to health, conduct or performance actions. Should an employer fail to notify any notifiable conduct as required by law, AHPRA must make a written report about such failure to the Minister concerned. The Minister must then report the employer’s failure to the health complaints entity, the employer’s licensing authority and any other appropriate entity.
Allied Legal strongly recommends that all health practitioners familiarise themselves with obligations for mandatory notification and the associated guidelines. Allied Legal’s lawyers in Melbourne can help you with these and other issues. We provide free 30-minute initial consultations to help understand your needs. Please contact us when you are ready, for specialist advice: http://alliedlegal.com.au/contact