Australia: Health Practitioner Registration - A New National Scheme

Health Law Bulletin
Last Updated: 6 April 2010
Article by Alison Choy Flannigan

A new National Registration and Accreditation Scheme for Health Professionals begins on 1 July 2010. The Scheme will provide for single national registration for specified health professions and a number of public interest protection measures.

The new scheme will provide for single national registration and accreditation for:

  • Aboriginal and Torres Strait Islander health practitioners*.
  • Chinese medicine practitioners*.
  • Chiropractors.
  • Dentists (including dentists, dental therapists, dental hygienists, dental prosthetists and oral health therapists).
  • Medical practitioners.
  • Medical radiation practitioners*.
  • Nurses and midwives.
  • Occupational therapists*.
  • Optometrists.
  • Osteopaths.
  • Pharmacists.
  • Physiotherapists.
  • Podiatrists.
  • Psychologists.

*From 1 July 2012, Aboriginal and Torres Strait Islander health practitioners, Chinese medicine practitioners, medical radiation practitioners and occupational therapists will be regulated under the scheme.

The national scheme has many benefits, including enabling health care practitioners to move around the country or provide telemedicine services across State and Territory borders within Australia and also provides consistency of laws applicable to health care practitioners across Australia. The scheme will also maintain a public national register to ensure that a practitioner who is banned from one State or Territory does not practise elsewhere in Australia.

Draft exposure legislation, the Health Practitioner Regulation National Law 2009, was released in June 2009 and the States and Territories are in various stages of passing the legislation. At the time of writing this article, the New South Wales, Queensland, Victorian and Northern Territory Acts had received assent.

Health practitioners holding registration immediately before the commencement of the national scheme on 1 July 2010 will generally be deemed to be registered under the new scheme.

Public Protection

There are a number of public interest protection components to the new scheme. These include:

  • Mandatory criminal history and identity checks.
  • Simplified complaints arrangements for the public. Boards and health care complaints bodies will have to inform one another of complaints received and must also consult each other on the handling of complaints. These arrangements will not replace the existing State based health care complaints commissions.
  • An increased role for community members on State and Territory Boards.
  • A requirement that, for annual renewal of registration, a registrant must demonstrate that they have participated in a continuing professional development program as approved by the National Board.
  • Practitioners to have suitable professional indemnity insurance whilst registered. This can include coverage under an insurance policy procured by an employer. There will be a two year exemption period until June 2012 from holding indemnity insurance for privately practising midwives (working in those States/Territories which do not prohibit such a practice) who are unable to obtain professional indemnity insurance for attending a homebirth, subject to specified conditions.
  • Mandatory reporting requirements - as described below.

Mandatory Reporting Requirements

A registered health care practitioner (the first health care practitioner) must notify the National Agency if, in the course of practising their profession, they form a reasonable belief that any of the following are true:

  • Another registered health practitioner (the second health practitioner) has behaved in a way that constitutes notifiable conduct.
  • A student has an impairment that, in the course of the student undertaking clinical training, may place the public at substantial risk of harm.

The first health care practitioner must notify the National Agency as soon as practicable after forming the reasonable belief.

'Notifiable conduct' in relation to a registered health practitioner means the practitioner has done any of the following:

  • Practised the practitioner's profession while intoxicated by alcohol or drugs.
  • Engaged in sexual misconduct in connection with the practice of the practitioner's profession.
  • Placed the public at risk of substantial harm in the practitioner's practice of the profession because the practitioner has an impairment
  • Placed the public at risk of harm because the practitioner has practised the profession in a way that constitutes a significant departure from accepted professional standards.

The mandatory reporting requirements extend to employers and education providers.

There are some exceptions, for example, if the health care practitioner is engaged by an insurer or the disclosure is made in the course of a legal proceeding or while exercising functions as a member of a quality assurance committee, council or other body approved or authorised under a relevant Act and that practitioner is unable to disclose the information due to a prohibition under that Act.

There are a couple of things to note. Firstly, the forming of the belief is 'in the course of practising the profession' (which may exclude disclosures made solely in the course of friendship). Additionally, the reporting requirements apply cross specialty, for example a nurse must report a medical practitioner and vice versa, so practitioners (and their employers) must be aware of the other professions regulated by this Act. Unfortunately, the legislation may provide a disincentive for health practitioners suffering an impairment who wish to rehabilitate themselves quietly from seeking professional assistance.

Professional Conduct and Performance Standards

The following standards will apply Nationally (except in NSW).

'Professional misconduct' of a registered health practitioner, includes:

  • Unprofessional conduct by the practitioner that amounts to conduct that is substantially below the standard reasonably expected of a registered health practitioner of an equivalent level of training or experience.
  • More than one instance of unprofessional conduct that, when considered together, amounts to conduct that is substantially below the standard reasonably expected of a registered health practitioner of an equivalent level of training or experience.
  • Conduct of the practitioner, whether occurring in connection with the practice of the health practitioner's profession or not, that is inconsistent with the practitioner being a fit and proper person to hold registration in the profession.

'Unprofessional conduct' of a registered health practitioner, has been defined as professional conduct that is of a lesser standard than that which might reasonably be expected of the health practitioner by the public or the practitioner's professional peers. Unprofessional conduct includes:

  • A contravention by the practitioner of the Act, whether or not the practitioner has been prosecuted for, or convicted of, an offence in relation to the contravention.
  • A contravention by the practitioner of any of the following:
  • A condition to which the practitioner's registration was subject.
  • An undertaking given by the practitioner to the National Board that registers the practitioner.
  • The conviction of the practitioner for an offence under another Act, the nature of which may affect the practitioner's suitability to continue to practise the profession.
  • Providing a person with health services of a kind that are excessive, unnecessary or otherwise not reasonably required for the person's well-being.
  • Influencing, or attempting to influence, the conduct of another registered health practitioner in a way that may compromise patient care.
  • Accepting a benefit as inducement, consideration or reward for referring another person to a health service provider or recommending another person use or consult with a health service provider.
  • Offering or giving a person a benefit, consideration or reward in return for the person referring another person to the practitioner or recommending to another person that the person use a health service provided by the practitioner.
  • Referring a person to, or recommending that a person use or consult, another health service provider, health service or health product if the practitioner has a pecuniary interest in giving that referral or recommendation, unless the practitioner discloses the nature of that interest to the person before or at the time of giving the referral or recommendation.

'Unsatisfactory professional performance' of a registered health practitioner, means the knowledge, skill or judgement possessed or care exercised by the practitioner in the practice of the health profession which the practitioner is registered, is below the standard reasonably expected of a health practitioner of an equivalent level of training or experience.

National, State and Territory Boards

There will be a National Board for each type of health practitioner. The members of these Boards were announced on 31 August 2009. There will still be State and Territory Boards which will oversee registration and complaints as delegated by the National Board.

The National Law and/or State or Territory law (depending on the choice of each jurisdiction) will provide for the investigation and prosecution of health care professionals.

The consideration of serious matters relating to a practitioner will be undertaken by State and Territory Tribunals. Complaints will be referred to the Tribunal in the relevant jurisdiction where the conduct occurred.

There will also be Accreditation authorities who will be responsible for developing accreditation standards and assessing programs of study.

The new national scheme provides the ability for the stated healthcare professionals to work anywhere in Australia and consistency within professional standards, which is a positive step. The challenge is with the operation and enforcement of the mandatory reporting requirements.

NSW Health has opted out of various parts of the National Scheme, including dealing with performance and conduct. In NSW Health complaints will continue to be managed by the Health Care Complaints Commission. Draft supplementary NSW legislation is scheduled to be introduced into Parliament on 20 April 2010.

© DLA Phillips Fox

DLA Phillips Fox is one of the largest legal firms in Australasia and a member of DLA Piper Group, an alliance of independent legal practices. It is a separate and distinct legal entity. For more information visit

This publication is intended as a first point of reference and should not be relied on as a substitute for professional advice. Specialist legal advice should always be sought in relation to any particular circumstances.

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