Errors regarding how AHPRA administers the National Law

Unfortunately, many good health professionals are getting caught up in the AHPRA notifications process as a result of errors regarding the manner in which AHPRA administers the Health Practitioner Regulation National Law Act – the National Law.

 

The National Law is the piece of legislation which not only governs health practitioners but it also sets out many of the “rules” that govern how AHPRA must act when they manage notifications, undertake an investigation or take action against a health practitioner.

 

Following is a brief summary of some of these rules that govern AHPRA.  This is not intended to be an exhaustive list and should not substitute you obtaining good independent legal advice.

 

1. AHPRA can’t just do and say whatever they want. There are laws that give them their power and certain criteria that must be met for AHPRA to have any legal power to undertake an investigation or to take any action.  These are called jurisdictional matters.

 

2. If the facts of the notification against you does not meet the jurisdictional criteria as set out in the National Law then AHPRA do not have any legal right to require a response from you, to undertake an investigation into your conduct or to take any action against you.

 

3. If AHPRA require a response from you, undertake an investigation into your conduct or take any action against you when they do not have the legal power to do so, they are acting illegally and you then have a right to legal recourse against them. (Such legal recourse will be discussed later).

 

4. In order for AHPRA to have legal power to do anything in regard to a voluntary notification (a notification from a member of the public or any non-mandatory notification) a number of jurisdictional elements must first be met. These include:

 

1. A person can only make a voluntary notification against a registered health practitioner. If you are not a registered health practitioner AHPRA do not have any jurisdiction to do anything to you unless they are accusing you of representing yourself as a registered health practitioner (holding out) or unless you are providing restricted health services.

 

1. The notification must relate to conduct that is a risk to public. There is a basic level of evidence required to prove this.  AHPRA can’t just say there is a risk without pointing to the evidence they are relying upon in deciding there is a risk.

 

One example to give this context: publishing information online that is presenting an alternative perspective to established health paradigms has been determined NOT to constitute evidence of a risk to the public.

 

1. The notification must relate to professional conduct or criminal conduct.

 

To put this in context:  comments on social media that are made under a health professionals personal name (without attaching their professional title to them) or are not related to a patient etc are not professional conduct.

 

Health professionals have a right to a private life, a right to personal communications and to hold and express personal opinions.

 

If any one of a, b or c DO NOT apply then AHPRA do not have a legal right to investigate or to require you to respond to a notification.   If a, b and c are fulfilled in your matter then at least one of the following grounds for a notification must apply for AHPRA to have power to require you to respond to the notification or to investigate the notification. These grounds are located in s 144 of the National Law.

 

If a, b and c do not apply then none of the s 144 grounds for a notification (as listed below in d-i ) can apply.  So, the notification CAN’T be accepted as a notification by AHPRA and they CAN’T legally require you to respond to it at all, if any one of a, b or c (above) do not apply to your situation.  

 

1. 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;

 

1. that the knowledge, skill or judgment possessed, or care exercised by, the practitioner in the practice of the practitioner’s health profession is, or may be, below the standard reasonably expected;

 

1. that 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; (d) that the practitioner has, or may have, an impairment;

 

1. that the practitioner has, or may have, contravened this Law;

 

1. that the practitioner has, or may have, contravened a condition of the practitioner’s registration or an undertaking given by the practitioner to a National Board.

 

1. that the practitioner’s registration was, or may have been, improperly obtained because the practitioner or someone else gave the National Board information or a document that was false or misleading in a material particular.

When you are first notified by AHPRA that a notification has been made about your conduct, before you respond to the notification, you have a right to ask them to tell you:

How they have determined that the alleged conduct poses a risk to the public and what evidence they are relying upon in determining that;

how they have determined that the alleged conduct has been determined to be professional conduct and what evidence they are relying upon in determining that;

which of the section 144 grounds for a notification they are relying upon (these are stated above under d – i ) and what evidence they are relying upon in determining that those grounds apply. 

If AHPRA refuse to answer those questions (which are primary jurisdictional questions that prove they have legal power to require you to respond and to investigate) they are in breech of the National Law and are seeking to exercise their powers ultra vires meaning “beyond the powers”.  If AHPRA refuse to answer the primary jurisdictional questions they are perpetrating an error of law which enlivens a right for you to request a statutory review of their conduct in the Supreme Court. This request is allowed under s21 of the Judicial Review Act 1991. You do not need to wait for AHPRA to make a final decision to request a judicial review of the conduct of AHPRA in undertaking their functions under the National Law.

 

1. In undertaking all communication with you as a health professional AHPRA must do so in a transparent, accountable, efficient, effective and fair way.

 

If AHPRA do not do so they are in breech of the National Law and you have a right to request a judicial review of their conduct in the Supreme Court as allowed under s21 of the Judicial Review Act 1991.

 

1. Restrictions on the practice of a health profession are to be imposed under the scheme only if it is necessary to ensure health services are provided safely and are of an appropriate quality.

 

Any action taken by AHPRA is a restriction on the practice of a health profession.  This includes the issuing of a caution against a health professional.

So, if AHPRA issue a caution against you and it is not essential to ensure that health services are provided safely and are of an appropriate quality then they have issued the caution unlawfully and you then have a right to seek a judicial review of the decision in the Supreme Court as allowed under s20 of the Judicial Review Act 1991.  (A good example of this is the recent case of Dr Garry Fettke.  Dr Fettke was giving dietary advice to patients to help them avoid negative health outcomes.  His advice did not pose any risk to the patients and in fact enabled better health outcomes for many patients.  As such AHPRA had no legal right to investigate the conduct let alone to take any action against him because the alleged conduct did not cause any risk to the public and they had no evidence to suggest that it did pose a risk).

However, the power of the Supreme Court in reviewing an actual decision of AHPRA (after the decision has been made through a judicial review of decision rather than a judicial review of conduct before the final decision is made) is limited.  Thus, it can be more effective to seek a judicial review of AHPRA’s conduct in undertaking the investigation and in making the proposed decision.  This request should be made to the Supreme Court before they make their final decision (immediately after they issue you with their proposed decision) and should include a request for an interlocutory injunction to seek to stop AHPRA from making a final decision until after the judicial review of their conduct is complete.  It is also usually helpful to wait until AHPRA issue their proposed decision with reasons before you seek the judicial review of conduct.  This is because it stops them from being able to take even harsher action against you as retribution for your court action, it increases the chances that they will take no action against you at all if they really have no legally justifiable reason to do so and it enables the Supreme Court to have maximum power against the unlawful actions and decisions of AHPRA.

 

AHPRA to date have shown a keen interest in avoiding the Supreme Court making any declarations regarding the limits of their powers under the National Law and as such to date AHPRA have consistently chosen to make lawful and fair decisions once they are faced with the threat of a Judicial Review of Conduct in the Supreme Court.

It is nothing short of disgusting that good health professionals should have to go to such lengths to obtain fair, lawful and just treatment by our regulatory body!

 

There are a range of other legal concepts such as natural justice, procedural fairness and Wednesbury Unreasonableness that may enliven further grounds for a judicial review if AHPRA fail to uphold them during their conduct with you as a health professional.

 

Some further law that may support your communications with AHPRA is included below. Some of the law discussed below may not be relevant to your specific situation:

 

1. It is a fundamental legal concept that any action or function performed in the absence of jurisdiction is an action or function performed unlawfully as it is performed ultra vires[1]. The High Court in Green v Daniels[2] held that if a departmental policy is inconsistent with the statutory provisions that delegate the decision-making power, and a decision maker acts in accordance with the policy, the decision will be made unlawfully. This conduct is known as self-fettering and involves both a failure to consider the merits of a particular case and inflexible application of policy which enlivens a ground for judicial review under s 21(2)(e) and s 23(f) of the Judicial Review Act 1991 and may also raise grounds under s 22 “Application in relation to failure to make decision”[3]. This law supports the requirement for AHPRA to answer all of the primary jurisdictional questions and point to the evidence they are relying upon before they can require you to respond to a notification. 

 

2. In the case of Rendell v Release on Licence Board[4] at 503-4 the Court held that: “A body upon whom Parliament has conferred a discretion must exercise that discretion in accordance with the legislation…. The discretion [must not] be exercised by reference to general and inflexible rules which pay no regard to the particular circumstances of the case… It is of course often useful and sometimes necessary for administrators to adopt guidelines.  These may provide guidance to officers in the scattered agencies of the administration.  They may ensure that decisions are made in an even-handed and consistent way.  But such guidelines must be compatible with the legislation conferring the discretion.  They must not purport to usurp the discretion or substitute administrative convenience for the individualised decision that is what the legislation has provided for”…   The court held that the board in this case had made a decision based on an inflexible policy that was not supported by the empowering legislation and as such the court granted an order quashing the Board’s decision.  This law supports the requirement for AHPRA to answer all of the primary jurisdictional questions and point to the evidence they are relying upon before they can require you to respond to a notification. 

 

3. When correctly applying the relevant rules of statutory interpretation, it is clear that both the Health Ombudsman Act and the Health Practitioner Regulation National Law Act only enliven jurisdiction where professional conduct or the provision of health services are in question. Please see the Statutory Interpretation Arguments attached. Schedule 7 of the National Law sets out the relevant rules of statutory interpretation for the National Law.

 

4. When an accepted process of statutory interpretation is undertaken regarding the National Law (please see the attached statutory interpretation arguments), it is apparent that, it is unlawful and ultra vires to require me to respond to an allegation without the primary jurisdictional questions being finally determined because:

• In the absence of professional conduct or the provision of professional services and a risk to the public then the s 144 grounds do not apply.
• If none of the s 144 grounds apply AHPRA and the Board have no jurisdiction and thus have no lawful power to proceed with an investigation.

 

To proceed with an investigation in the absence of a final determination that jurisdiction exists would constitute an error of law enlivening a ground for judicial review of conduct in the Supreme Court.

 

5. The process of an investigation is extremely stressful and as such it is a breach of procedural fairness and natural justice to undertake an investigation in the absence of jurisdiction to do so. The jurisdictional questions that I have asked should also be being addressed by the Office of the Health Ombudsman prior to them forwarding a health service complaint to AHPRA; and AHPRA should be answering these jurisdictional questions before requiring a response from a health practitioner; as to proceed otherwise, is to proceed on the basis of assumption and thus constitutes an error of law as supported by Minister for Immigration and Ethnic Affairs v Pochi[5], Re Pochi and Minister for Immigration and Ethnic Affairs (1979) 36 FLR 482, Luu v Renevier (1989) 91 ALR 39, Ex parte S F Bowser & Co; Re Municipal Council of Randwick (1927) 27 SR (NSW) 209 and Division 10 “Action by National Board” s 178 of The National Law (as discussed below).

 

6. The Office of the Health Ombudsman (who receives all health service notifications in Queensland) defines a health service complaint under s 31 of the Health Ombudsman Act 2013 stating that “a health service complaint is a complaint about a health service or other service provided by a health service provider”. There is no evidence to support that this notification relates to the provision of a health service and thus it does not meet the definition of a health service complaint or consequently of a notification.  As such none of the s 144 grounds can apply because the express wording of those grounds and the intention of Parliament in drafting the National Law, indicates that professional conduct is a minimum requirement for the grounds to apply. Thus, AHPRA and the Board are acting ultra vires by requiring me to respond before they have made final determinations of these primary jurisdictional requirements. Should I be required to respond in the absence of the essential jurisdictional information that I requested, I would be required to guess what the concerns of AHPRA and the Board are and I would be exposed to the risk that my response, may prejudice any investigation into my professional conduct. By responding I would be agreeing that the alleged conduct is professional conduct, which it is not and I would be agreeing that there are grounds for the notification which there are not.

 

7. Specifically, with respect to this notification (being a voluntary notification) the power of AHPRA and the Board to perform an investigation is enlivened when there is evidence that the s 144 Grounds apply. As such it is unlawful and ultra vires for AHPRA and the Board to require a response from me before they have made a final determination that any of the s 144 grounds are established.  Further, to require a response from me before determining that any of the grounds for notification are established, is a reversal of the onus of proof such that it is treating me as guilty until I prove myself innocent which constitutes an error of law as it is a breach of procedural fairness and natural justice.

 

8. It is impossible for me to respond to the notification without information regarding the evidence that is being relied upon and the logical reasoning that AHPRA and the board have used in determining that the alleged conduct is professional conduct or the provision of health services, that the alleged conduct is a risk to the public and (once a final determination of those two primary jurisdictional requirements is made), which of the s 144 Grounds are the basis for the notification?

 

9. It can be helpful to do a freedom of information request to The Office of the Health Ombudsman and to AHPRA to get all documents and correspondence they hold related to you and/ or your matter. One form that can be very helpful is the “Office of the Health Ombudsman referral to AHPRA form” as they will give a preliminary assessment of your case and a statement regarding the outcome they expect eg. The Health Ombudsman might say that, “the information received to-date does not indicate any grounds for the suspension or imposition of conditions on the practitioner’s registration under part 7 or the Act”.

 

THE NO EVIDENCE RULE

1. This rule forms part of the concept of ‘procedural fairness’. It provides that a decision maker must make a decision based on actual evidence as opposed to making it on the basis of a whim or speculation.  In the case of Minister for Immigration and Ethnic Affairs v Pochi[6] Deane J held that a tribunal was required to base a decision to deport an applicant on ‘…. Some rationally probative evidence and not merely [on material] raised before it as a matter of suspicion or speculation…’ In other words, the decision maker must base their decision on facts that are proven and relevant to the issue to be determined. Further, the case of Luu v Renevier (1989) 91 ALR 39 demonstrated that a decision will be unreasonable and therefore an improper exercise of power because it lacked a legally defensible foundation in the factual material (no facts and no evidence to support the finding) or in logic.

 

2. The AHPRA website defines an allegation as “a claim of a fact which a person claims to be able to prove. Allegations remain assertions without proof until they can be proved” (http://www.ahpra.gov.au/Support/Glossary.aspx). A fraudulent and defamatory statement does not constitute proof of my professional conduct and as such this notification remains as an assertion without proof.  To require me to respond to an assertion which has no credible proof is a breach of procedural fairness and natural justice and is an error of law.  Further, an absence of evidence with an assertion means it would be a reversal of the onus of proof to require you to respond to the notification until evidence was provided.

 

3. In the case of Re Pochi and Minister for Immigration and Ethnic Affairs (1979) 36 FLR 482 Deane J at (62) confirmed that while the AAT is not bound by the rules of evidence, evidence must be proven on the balance of probabilities and not mere suspicion. In this notification there is no evidence proven on the balance of probabilities that my “professional conduct is or may be unsatisfactory”.

 

4. Division 10 “Action by National Board” s 178 of The National Law sets out when a “National Board may take action”.

 

5. S 178 (1)(a) requires a national board to “reasonably believe because of a notification or for any other reason……. (i) the way a registered health practitioner registered by the board practices the health profession, or the practitioner’s professional conduct, is or may be unsatisfactory”.

 

6. A reasonable belief requires an evidential basis and not mere assumption, supposition or the acceptance of the defamatory commentary and fraudulent misrepresentation of a vexatious third-party.

 

7. A reasonable belief requires an evidential basis and not mere assumption, supposition or the acceptance of the defamatory commentary and fraudulent misrepresentation of a vexatious third-party.

 

8. The case of Greiner v Independent Commission Against Corruption (1992) 28 NSWLR 125 held that “a statutory requirement to act reasonably or on reasonable grounds is satisfied if the decision meets an objective standard of reasonableness”.

 

9. R v Rondo (2001) 126 A Crim R 562; [2001] NSWCCA 540 held that reasonable suspicion involves less than a reasonable belief but more than a possibility; some factual basis must exist for the belief.

 

10. These cases demonstrate that the evidential and factual basis required to establish a reasonable belief is greater than that required to support a reasonable suspicion.

 

11. The National Law requires a reasonable belief and not just a reasonable suspicion[7].

 

12. With reference to S 178 (1)(a)(i) of The National Law I submit that in this notification there is no evidence to support a reasonable belief that the way I practice the health profession, or that my professional conduct, is or may be unsatisfactory as ……………..

 

13. In the case of Ex parte S F Bowser & Co; Re Municipal Council of Randwick (1927) 27 SR (NSW) 209, the Judge held that when the decision maker acts as an administrative body, in exercising the authority conferred upon it, it must act according to the rules of reason and of justice.

 

14. AHPRA always tell health professionals that a caution is not an appealable decision. This is a complete LIE!!

 

Every decision AHPRA makes and every action AHPRA takes is able to be appealed through a judicial review of conduct or a judicial review of decision if there has been a likely error of law.  This includes cautions!!  This is a fundamental concept of Administrative Law. 

 

15. If you are going to take legal action against AHPRA it would be wise to have representation from a lawyer who is experienced in Administrative Law.

 

In my personal opinion and based on my personal experience and that of many others who I have spoken with, the legal representatives provided by unions and insurance companies are likely not to give effective legal representation to health professionals who stand against AHPRA.  For that reason it is usually best to obtain independent legal representation from an honest lawyer/ barrister who you personally employ and thus who really wants to help you obtain a lawful and just outcome.

 

[1] Green v Daniels (1977) 13 ALR 1.

[2] Ibid.

[3] Judicial Review Act 1991.

[4] (1987) 10 NSWLR 499.

[5] (1980) 44 FLR 41 at 62.

 

[6] (1980) 44 FLR 41 at 62.

[7] S 178 (1)(a)(i)