Choosing a new doctor? Their sexual misconduct may soon be on the record

Over the past decade, reports of sexual misconduct by Australian health practitioners against patients have increased. While various reforms have tried to curtail “sexual boundary violations”, none has worked.

Now, Australian health ministers have agreed to consider three amendments intended to protect patients in each state and territory.

Where past reforms have tinkered with the disciplinary powers regulators have to sanction health professionals, these new proposals take a different tack.

They seek to reorient the “inherent power imbalance” between practitioner and patient, in favour of patients. The aim is to increase public information about previously sanctioned practitioners and to better protect those who complain.

What are boundary violations?

In health-care regulation, health practitioners’ boundary violations (or boundary crossings) cover a spectrum of sexual transgressions against patients.

These obviously include serious or criminal sexual assaults and exploitation. However, they also cover innuendo, intrusive questions and inappropriate physical examinations. Then there are sexual relationships with former and current patients – consensual or not.

The Medical Board of Australia’s guidelines for sexual boundaries describes how boundary violations breach patient trust, undermine patient safety, and erode public confidence in the medical profession.

As much research indicates, patients who are violated while seeking health care may endure profound distress and experience lifelong trauma.

How common are boundary violations?

Research with patients indicates boundary violations in health care are under-reported.

Still, Australia’s national regulator of health practitioners, known as Ahpra,
received 841 notifications about 728 registered practitioners concerning boundary violations in 2022-2023. This is an increase of more than 220% from 2019-2020.

Of these notifications, 359 related to medical practitioners (including psychiatrists), while 215 related to nurses and 120 to psychologists.

Independent analysis of Australian tribunal cases for boundary violations indicates between roughly 65% and 80% of those accused are male.

Why now?

As reported boundary violations have surged, public interest in the issue and its impacts has sharpened.

Media reports have described practitioners engaged in exploitative sexual relationships, as well as inappropriate touching and physical examinations.

Meanwhile, public inquiries have spotlighted the regulator’s role and responsibilities.

For instance, Tasmania’s inquiry into child sexual abuse examined evidence of Ahpra’s response to sexual abuse by a paediatric nurse. The National Health Practitioner Ombudsman’s review found protections for complainants should be strengthened.

At the same time, several rigorous Australian studies have highlighted regulatory weak spots and proposed options for reform.

Here is what is on the table.

1. More public information about past violations

This proposed reform would allow Ahpra to disclose the “full regulatory history” of any health professional found guilty of professional misconduct for sexual violations in a civil tribunal or found guilty of sexual offences in a criminal court.

This would raise “red flags” on the public register about certain practitioners, which a patient could access.

Currently, regulatory impositions – such as practice conditions, reprimands, suspensions or deregistrations – are recorded on the register but usually removed once they lapse or expire.

2. Consistent reinstatement of deregistered practitioners

This seeks to harmonise across the country how deregistered health practitioners are reinstated.

Currently, only New South Wales law requires disqualified health practitioners to obtain a “reinstatement order” from a civil tribunal before applying to the relevant health profession council for reinstatement. The tribunal’s deliberations are heard in open hearings, its reasons and decision published to the public, and in turn may be reported by the media and read by patients.

Elsewhere, the state health practitioner boards typically reinstate practitioners without any publicly available decision, or the reasons behind the decision.

3. Banning non-disclosure agreements

The 2022 independent investigation into cosmetic surgery practitioners in Australia revealed some doctors who resolved disputes privately with aggrieved patients had used non-disclosure or confidentiality agreements, presumably to shield themselves from liability.

While such agreements would likely be unenforceable, they may lead patients to falsely believe they are legally bound to silence.

This proposed reform seeks to prohibit health practitioners using non-disclosure agreements to eliminate any chance they might stop or dissuade patients from reporting misconduct.

What would the proposed changes mean?

Many publicised boundary violation cases involve practitioners who have been reinstated after disqualification for previous misconduct. This includes where they have changed their names.

Currently, many patients who have been harmed by serial offenders have no way of knowing a practitioner had been previously sanctioned for the same or similar misconduct.

Data on repeat offending are patchy. However, analysis of the available Australian data indicates repeat offending is “the norm rather than the exception”.

While some health practitioners will see these reforms as oppressive or punitive, only those found guilty in an open tribunal or court of the most serious professional misconduct for boundary-crossing transgressions or sexual crimes would be affected.

While promising, the reforms are not laid in stone. Public consultation is now underway until February 19.

Christopher Rudge, Law lecturer, University of Sydney

This article is republished from The Conversation under a Creative Commons license. Read the original article.