1. Professionalism: Stifling Innovation?
A/Prof Bernadette Richards
Professionalism: Stifling Innovation?

2. Health Practitioner Regulation National Law Act 2010 (National Law)
s3(2)(f) to enable the continuous development of a flexible, responsive and sustainable Australian health workforce and to enable innovation in the education of, and service delivery by, health practitioners
University of Adelaide

3. AHPRA Annual Report 2015/16
657,621 health practitioners in 14 professions were registered in Australia in 2015/16
1.5% of practitioners were the subject of a notification and there were 10, 082 notifications ….
There were 175 National Board matters decided by tribunals during this period
84.6% (148) resulted in disciplinary action
10.3% (18) in no further action
5.1% (9) withdrawn and did not proceed
University of Adelaide

4. Professionalism under the National Law
196 Decision by responsible tribunal about registered health practitioner (1) After hearing a matter about a registered health practitioner, a responsible tribunal may decide— (a) the practitioner has no case to answer and no further action is to be taken in relation to the matter; or (b) one or more of the following— (i) the practitioner has behaved in a way that constitutes unsatisfactory professional performance; (ii) the practitioner has behaved in a way that constitutes unprofessional conduct; (iii) the practitioner has behaved in a way that constitutes professional misconduct;
University of Adelaide

5. Whyte
the import of these differences is minimal or, in the words of the Tribunal, “inconsequential” [43]
Role of Tribunal:
“mandate to be protective and not punitive in orders it makes” ([241]) …
unsatisfactory professional conduct involves falling below the standard expected by the public and one’s peers
Professional misconduct is measured in a similar manner but involves falling substantially below the expected standard and is perhaps most likely to be found where there has been a violation of personal boundaries.
University of Adelaide

6. Process
Health Care Complaints Commission v Dr Baez [2014] NSWCATOD 3 [11] The Tribunal is established pursuant to Division 10 of the Health Practitioner Regulation (Adoption of National Law) Act 2009 (NSW) ("the Law"). … [13] In conducting an enquiry under the Law, the Tribunal may conduct those proceedings "as it thinks fit" (see section 167B(1) of the Law). [14] In this regard, the Tribunal in such proceedings: "... is not bound to observe the rules of law governing the admission of evidence, but may inform itself of any matter in the way it thinks fit" (see paragraph 2 of Schedule 5D to the Law).
University of Adelaide

7. Good medical practice: a code of conduct for doctors in Australia
The practice of medicine is challenging and rewarding. No code or guidelines can ever encompass every situation or replace the insight and professional judgment of good doctors. Good medical practice means using this judgement to try to practise in a way that would meet the standards expected of you by your peers and the community.
University of Adelaide

8. Therefore: Challenging behaviour is not an absolute
Tribunal can address the enquiry ‘as it sees fit’
Tribunal can and will refer to extraneous material
Focus is on the protection of the public
Innovation itself is not a grounds for challenge
University of Adelaide