Three years on: Changes in regulatory practice since Independent review of the use of chaperones to protect patients in Australia

31 Jul 2020

An independent report has found reforms of the regulatory management of allegations of sexual misconduct have had a profound impact.

The Australian Health Practitioner Regulation Agency (Ahpra) and the Medical Board of Australia (MBA) commissioned the author of the ground breaking 2017 Independent review of the use of chaperones to protect patients in Australia, Professor Ron Paterson, to assess what had been achieved and identify what more could be done to improve their handling of sexual misconduct allegations.

Professor Paterson, Professor of Law at the University of Auckland and Distinguished Visiting Fellow at Melbourne Law School, found that Ahpra and the MBA have fully implemented ‘nearly all’ his recommendations and made significant changes to regulatory practice.

‘My in-depth assessment of current practice is that the changes made by Ahpra and the MBA, in response to the chaperone review report, have been wide and deep,’ Professor Paterson said.

‘The impact … has been profound in terms of how notifications of alleged sexual abuse are dealt with by regulators. It is too early to say whether the changes will flow on to have a positive impact on patients and the public, but there are promising signs,’ he said.

The report notes the huge changes since 2017 to community and media discussion of sexual misconduct arising from the #Metoo movement and as a result of the Royal Commission into Institutional Responses to Child Sexual Abuse.

The report finds that the National Registration and Accreditation Scheme compares favourably with international health practitioner regulators on this issue, and is ‘highly advanced in how it operates in this complex and demanding area’.

Major changes to regulatory practice made by the MBA and Ahpra since 2017 to improve the handling of allegations of sexual boundary violations include:

abandoning the use of mandated chaperones and only rarely imposing practice-monitor restrictions
centralising the expertise and handling of allegations of sexual boundary violations, and
extensive specialised education and training for decision-makers and investigators handling these matters.

Ahpra and the MBA have accepted all Professor Paterson’s recommendations to ensure continuous improvement, including by:

improving communication with notifiers and practitioners and reducing timelines
improving support for notifiers (especially when cases go to tribunals), and for decision-makers and staff, and
applying new ministerial ‘public interest’ guidance to sexual boundary notification decisions.

Professor Paterson’s report notes the ongoing use by tribunals of chaperones as a mechanism to protect the public, despite the recommendations of his initial report.

‘These decisions suggest that the thinking of tribunals about alleged sexual misconduct by health practitioners is still evolving and may not yet reflect changing community expectations,’ he writes.

Ahpra CEO, Martin Fletcher, welcomed Professor Paterson’s findings and said Ahpra was committed to continuous improvement.

‘Sexual boundary violations have a devastating impact on patients. We will keep doing what it takes to make our processes as sensitive, fair and efficient as we can,’ Mr Fletcher said.

Chair of the Medical Board of Australia and inaugural Chair of the Sexual Boundaries Notification Committee, Dr Anne Tonkin, said patients trust their doctors to care for them and do the right thing.

‘The vast majority of doctors in Australia justify that trust. When something goes wrong, patients deserve to be heard and respected in a sensitive and fair process that is designed to keep all patients safe and we are committed to providing that,’ Dr Tonkin said.

Highlights of Ahpra’s action plan to address Professor Paterson’s recommendations include:

piloting a new support service for notifiers, to provide practical and emotional support during the regulatory process
considering options for expanding the specialised approach to deciding sexual boundary cases to other professions
strengthening and expanding expert training for staff handling sexual boundary notifications
Ahpra-wide work to reduce timelines for notifications management, and
developing guidance on physical examination.

Recommendation	What we will do
1. Mandatory specialised training for staff handling sexual boundary notifications	Ahpra will extend training for all staff involved in managing notifications by: supporting all remaining investigators to attend the three-day training course within 18 months of the publication of the report developing specialised sexual boundary training for other notifications staff and delivering it within six months of the publication of the report
2. Better communication with notifiers	We recognise that delayed and poor communication make the notifications process harder. We continue to moderate the frequency, style and method of contact, including: talking on the phone to notifiers more often, to keep them up to date and engaged with what we are doing developing the engagement skills of team members in rapport building, best practice methods for interviewing, managing welfare and appropriate referral to external support services continuing to survey and interview notifiers about their experiences regularly engaging with the National Health Practitioner Ombudsman and Privacy Commissioner about communication and other issues raised by notifiers involved in sexual boundary matters commencing a pilot program to provide support to notifiers/targets in sexual boundary matters involving a medical practitioner or psychologist to: provide emotional and procedural support to them throughout the notification process, and decreasing disengagement rates, when matters are discontinued because notifiers opt out making system changes to better monitor timeframes for contact with notifiers improving and making more empathetic the ‘reasons for regulatory decisions’ made at the outcome of investigations developing general messaging across various communication platforms (e.g. the ‘Let’s talk about it’ video about the notifications process, the ‘Taking Care’ podcast series and the Ahpra social media sites) using visual aids in our written correspondence.
3. Support for staff and Sexual Boundaries Notification Committee (SBNC) members	Ahpra started the roll-out of a staff wellbeing and support program through 2019. Phase 2 of the program includes targeted support for staff at specific risk of vicarious trauma. Ahpra staff and Committee members have access to a confidential 24-hour, seven days per week Employee Assistance Program, which offers counselling, emergency support and other services and resources. Training for notifications staff is ongoing in relation to managing communication with distressed persons.
4. Timely handling of notifications	We continue to reduce the average time to complete notifications, recognising the significant impact that investigations by police and others can have on timeliness overall.
5. Learning from the work of the SBNC	The MBA SBNC has demonstrated that a model involving highly specialised decision-makers leads to improved quality and consistency of decision-making. Ahpra and National Boards will consider alternative committee arrangements to ensure highly specialised decision makers for sexual boundary cases across the scheme.
6. Professional guidance on physical examinations	Ahpra will work with all National Boards to review guidance and supporting information available for practitioners and patients on physical examinations.

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Three years on: Changes in regulatory practice since Independent review of the use of chaperones to protect patients in Australia

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