It has recently become apparent that AHPRA and the Board believe they can investigate any Health Practitioner at any time for any reason as they recently stated:
“Section 160(1)(b)(ii)(B) of the National Law permits the Board to conduct an investigation into a registered health practitioner if it decides it is necessary or appropriate because the Board for any other reason [emphasis added] believes the practitioner’s conduct is or may be unsatisfactory. The existence of a “notification” is not a pre-requisite to conducting an investigation.”
AHPRA and the Board also stated that “Section 160(1)(b)(ii)(B) of the National law would provide an alternative ground upon which the Board could decide to conduct an investigation”.
S 160 of the National Law actually states:
“s160 When investigation may be conducted
(1) A National Board may investigate a registered health practitioner or student registered by the Board if it decides it is necessary or appropriate—
(a) because the Board has received a notification about the practitioner or student; or
(b) because the Board for any other reason believes—
(i) the practitioner or student has or may have an impairment; or
(ii) for a practitioner—
(A) the way the practitioner practises the profession is or may be unsatisfactory; or
(B) the practitioner’s conduct is or may be unsatisfactory; or
(c) to ensure the practitioner or student— (i) is complying with conditions imposed on the practitioner’s or student’s registration; or (ii) an undertaking given by the practitioner or student to the Board.
(2) If a National Board decides to investigate a registered health practitioner or student it must direct an appropriate investigator to conduct the investigation.
What the express wording of s160 shows is that there are specific limitations on the power of AHPRA and the Board to investigate a health practitioner for any other reason.
For AHPRA and the Board to lawfully investigate a health practitioner for “any other reason” the following criteria must be met:
- AHPRA and the Board reasonably believes “the way the practitioner practises the profession is or may be unsatisfactory”.(This wording indicates that the subject of the investigation must be professional conduct not personal conduct. Further, the legal standard required for a reasonable belief to be formed means that there must be credible evidence to support the belief. The law surrounding the level of evidence required to form a reasonable belief has been discussed in the last opinion letter. Also, the conduct in question must pose a risk to the public with evidence to support the assertion that the conduct poses a risk.); or
- (B) the practitioner’s conduct is or may be unsatisfactory (For AHPRA and the Board to investigate a practitioner’s conduct the conduct must be criminal conduct or professional conduct and there must be evidence that the conduct poses a risk to the public. When undertaking an accepted process of statutory interpretation there is nothing in the express wording of the National Law, in the objectives and guiding principles in s3 of the National Law or in any extrinsic material to bestow a power on AHPRA and the Board to investigate a health practitioner at any time “for any other reason”. In fact in the objectives and guiding principles of the National Law it states: “(c) 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”. This is the only reference to the power to investigate and take action against health practitioners and the express wording indicates the minimum requirements of professional conduct and of a risk to the public.); or
- (c) to ensure the practitioner or student— (i) is complying with conditions imposed on the practitioner’s or student’s registration; or (ii) an undertaking given by the practitioner or student to the Board.
If your legal representative encourages you to respond to a notification before you are given specific information regarding specifically what you are being accused of and the evidence being relied upon in determining that, then they are setting you up to fail as you are having to try and guess what AHPRA and the Board are accusing you of.
If AHPRA and the Board respond to your request by simply stating the ambiguous wording of the National Law without any specific detail of the accusation; or if they do not state what evidence they are relying upon; or if they say they have not yet determined these matters; then they have no legal right to require you to respond to the notification. If they continue to pressure you to respond or make a decision of a proposed action without giving you that information the decision has been made unlawfully and you can seek a judicial review of their conduct in the Supreme Court because:
They have failed to provide you with the information you needed to respond to the notification which is a breach of procedural fairness;
They have exercised a regulatory function under the National Law without the legal right to do so as they have not determined or proven that they have jurisdiction;
They have undertaken an investigation into you or made a decision of a proposed action without sufficient evidence to support them in forming a reasonable belief about your conduct which is a breach of procedural fairness and natural justice.
The above list is not exhaustive and there are multiple other grounds you may use to seek a Judicial Review of Conduct in the Supreme Court. Again, remember that seeking the review before the final decision is made but after the proposed decision is made (and the reasons for decision have been given to you) gives you the most power in the Supreme Court and gives you the best chance of having AHPRA and the Board deciding not to take their unlawful proposed action against you.