AMAV VICDOC Winter 2024 - Magazine - Page 92
THE COMMON LAW
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First, the courts have held that
contractual confidentiality obligations
may be subject to a common law 'public
interest exception' if there are actual
or threatened breaches of the law,
threats to public safety, civil wrongs, or
misdeeds of a similar gravity. In such
cases confidentiality cannot be relied
on to prevent disclosure to a third
party with a real and direct interest in
redressing such crime, wrong or misdeed.
In circumstances similar to the Letby
case, if hospital administration declined to
ask the police to investigate, contractual
confidentiality obligations are unlikely
to prevent concerned medical staff from
reporting directly to the police.
MANDATORY REPORTING TO A REGULATOR
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Secondly, medical practitioners in Australia
are subject to statutory mandatory
reporting obligations under the Health
Practitioner Regulation National Law.
If a registered health practitioner, in
the course of practicing their profession,
'forms a reasonable belief' that another
registered health practitioner has behaved
in a way that constitutes notifiable conduct,
including by placing the public at risk of
harm by practising in a way that constitutes
a significant departure from accepted
professional standards, they must, as soon
as practicable after forming the reasonable
belief, notify Ahpra.
Under such circumstances the statutory
mandatory reporting obligation overrides
any contractual confidentiality obligations.
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Other mandatory reporting obligations
include reporting deaths in prescribed
circumstances under the Coroners Act
2008 (Vic) and reporting a reasonable
belief of child physical or sexual abuse
under the Children’s Service Act 1996 (Vic).
VOLUNTARY REPORTING TO A REGULATOR
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A voluntary report may be made to Ahpra
about a registered health practitioner if:
» The practitioner’s professional conduct
is, or may be, of a lesser standard
than that which might reasonably
be expected of the practitioner by
the public or the practitioner’s
professional peers.
» The knowledge, skill or judgment
possessed, or care exercised by, the
practitioner in the practice of their
profession is, or may be, below the
standard reasonably expected.
» The practitioner is not, or may not be,
a suitable person to hold registration
in the health profession, including, for
example, that the practitioner is not a
fit and proper person to be registered
in the profession.
It is not apparent whether making a
voluntary notification will override
contractual confidentiality obligations,
but where a practitioner has genuine
public interest concerns about the conduct
of another registered health practitioner,
it is highly unlikely that a court would
hold that they should be prevented
from notifying the regulator by their
contractual confidentiality obligations.
