Trends in Regulation of Mental Health Practitioners

Abstract

Regulation of mental health professionals in Australia and New Zealand, along with the regulation of all health practitioners, is in the process of substantial transition. With trust as the cornerstone for governance of the health professionals, the likelihood is a reorientation toward investigations into ‘performance’ as against ‘conduct’. However, this poses particular challenges for assessment of psychiatrists' and psychologists' performance. Entitlement to registration is likely to shift conceptually toward a model involving revalidation and recertification by reference to ongoing fitness to practise, demonstration of relevant personal attributes, and maintenance of adequate skills and health. In Australia, national registration and regulation are on the agenda. Lay participation in regulation is increasing and community and regulatory tolerance for exploitative or predatory conduct by mental health professionals is on the wane. The ambit of regulation is broadening with forensic work by practitioners already incorporated and signs that the conduct of unregistered and deregistered practitioners will soon be subject to a form of regulatory intervention.

Key words:

• complementary health professions
• conduct
• fit and proper person
• forensic work
• good character
• peer review
• performance
• psychiatrists
• psychologists
• recertification
• regulation
• revalidation
• sexual exploitation
• sexual misconduct
• unregistered practitioners
• witness immunity

Notes

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 5. J Smith, Fifth Report of the Shipman Inquiry, Cm 6394: <http://www.the-shipman-inquiry.org.uk/5r_page.asp> accessed 1 September 2008.

 6. See D Gareth Jones, ‘Contemporary Medical Scandals: A Challenge to Ethical Codes and Ethical Principles’ (1990) 42 Perspectives on Science and Christian Faith 2: <http://www.asa3.org/ASA/topics/ethics/PSCF3-90Jones.html> accessed 28 August 2008; S Cartwright, ‘Revisiting the Cartwright Inquiry’ (2008) 3(1) New Zealand Bioethics Journal 3.

 7. See B Bromberger and J Fife-Yeoman, Deep Sleep, Harry Bailey and the Scandal of Chelmsford (Simon and Schuster, Sydney 1991).

 8. T Faunce, K Mure, C Cox and B Maher, ‘When Silence Threatens Safety: Lessons from the First Canberra Hospital Neuropsychological Inquiry’ (2005) 12 Journal of Law and Medicine 112.

 9. Queensland Public Hospitals Commission of Inquiry, Report (Govt Printer, Brisbane 2005): <http://www.qphci.qld.gov.au/final_report/Final_Report.pdf> accessed 1 September 2008; K Harvey and T Faunce, ‘A Critical Analysis of Overseas Trained Doctor (OTI) Factors in the Bundaberg Base Hospital Surgical Inquiry’ (2006) 23(2) Law in Context 73.

10. J Black, ‘Critical Reflections on Regulation’, Discussion Paper, Centre for the Analysis of Risk and Regulation, LSE 4 (2002).

11. See J Braithwaite, J Healy and K Dwan, The Governance of Health Safety and Quality (Commonwealth of Australia, Canberra 2005); J Healy and J Braithwaite, ‘Designing Safer Health Care Through Responsive Regulation’ (2006) 184 (10 Suppl) S56: <http://www. mja.com.au/public/issues/184_10_150506/hea11015_fm.html> accessed 28 August 2008.

12. A-L Carlton, ‘National Models for Regulation of the Health Professions’ (2006) 23(2) Law in Context 21 at 44.

13. Cm 7013, The Stationery Office, London 2007: <http://www.official-documents.gov.uk/document/cm70/7013/7013.pdf> accessed 20 August 2008.

14. At p 2.

15. See eg D Thomas, ‘Peer Review as an Outmoded Model for Health Practitioner Regulation’ (2006) 23(2) Law in Context 52.

16. See eg s 37 of the Medical Practice Act 1992 (NSW): ‘professional misconduct’ is defined to be (a) unsatisfactory professional conduct, or (b) more than one instance of unsatisfactory professional conduct that, when the instances are considered together, amount to conduct, of a sufficiently serious nature to justify suspension of the practitioner from practising medicine or the removal of the practitioner's name from the Register. Section 5 of the Health Professions Registration Act 2005 (Vic) defining ‘professional misconduct’, the province of the Victorian Civil and Administrative Tribunal, as (a) unprofessional conduct of a health practitioner, where the conduct involves a substantial or consistent failure to reach or maintain a reasonable standard of competence and diligence; and (b) conduct that violates or falls short of, to a substantial degree, the standard of professional conduct observed by members of the profession of good repute or competency; and (c) conduct of a health practitioner, whether occurring in connection with the practice of the health practitioner's health profession or occurring otherwise than in connection with the practice of a health profession, that would, if established, justify a finding that the practitioner is not of good character or is otherwise not a fit and proper person to engage in the practice of that health profession.'

17. Section 40 of the Health Professionals Act 2004 (ACT).

18. Section 146 of the Medical Practice Act 1992 (NSW).

19. Section 99 of the Psychologists Act 2001 (NSW).

20. Section 63 of the Health Practitioners Act (NT).

21. Section 26 of the Health Practitioners (Professional Standards) Act 1999 (Qld).

22. Section 24 of the Medical Practice Act 2004 (SA).

23. Section 50 of the Medical Practitioners Registration Act (1996).

24. Section 76 of the Health Professions Registration Act 2005 (Vic).

25. Section 13(1) of the Medical Practice Act 1894 (WA); s 57 of the Psychologists Act 2005 (WA).

26. See Department of Human Services, Regulation of the Health Professions in Victoria: A Discussion Paper, Melbourne October 2003: <http://www.health.vic.gov.au/pracreg/ pdf/regulation_health_professions_vic.pdf> accessed 5 September 2008.

27. <http://www.gmc-uk.org/about/council/index.asp> accessed 28 August 2008.

28. Section 120 of the Health Professions Registration Act 2005.

29. Section 130 of the Medical Practice Act 1992 (NSW).

30. Section 87 of the Psychologists Act 2001 (NSW).

31. L Donaldson, ‘Good Doctors, Safer Patients: Proposals to Strengthen The System to Assure and Improve the Performance of Doctors and to Protect the Safety of Patients’, United Kingdom Department of Health: <http://www.dh.gov.uk/en/Publicationsandstatistics/Publications/PublicationsPolicyAndGuidance/DH_4137232> accessed 16 September 2008.

32. At p 31.

33. At p 33.

34. General Medical Council, Licensing and Revalidation: <http://www.gmc-uk.org/about/reform/index.asp> accessed 28 August 2008.

35. Medical Council of New Zealand, ‘Recertification’: <http://www.mcnz.org.nz/Competence/Recertification/BABrecertificationprogrammes/Continuingprofessionaldevelopment/tabid/185/Default.aspx> accessed 15 September 2008.

36. Section 60(1) of the Health Professions Registration Act 2005 (Vic).

37. See eg Peeke v Medical Board of Victoria, unreported, Supreme Court of Victoria, 19 January 2004, per Marks J; see I Freckelton, ‘The Sexually Exploitative Doctor’ (1994) 1 Journal of Law and Medicine 203.

38. [1966] VR 292 at 297.

39. Unreported, NSW Court of Appeal, 15 June 1993 at p 2.

40. [1993] 2 Qd R 154 at 162.

41. Unreported, Supreme Court of Victoria, 19 December 1997.

42. See too Alroe v Medical Board of Queensland [2004] QCA 364.

43. See eg Marinovich v General Medical Council [2002] UKPC 36 at [19]; Dare v General Medical Council [2002] UKPC 54; Council for the Regulation of Healthcare Professionals v General Medical Council [2004] UKHC 1850; Council for the Regulation of Healthcare Professionals v General Medical Council [2004] UKHC 944 (Admin); Wentzel v General Medical Council [2004] EWHC 381; Razak v General Medical Council [2004] EWHC 205 (Admin); Giele v General Medical Council [2005] EWHC 2143; Bevan v General Medical Council [2005] EWAC 174 (Admin).

44. [2006] EWHC 886 at [17]–[19].

45. Ibid, at [39].

46. Wilks v Medical Practitioners Board of Victoria (Occupational and Business Regulation) [2007] VCAT 2439 at [43], [157]

47. Williams v Medical Practitioners Board of Victoria (Occupational and Business Regulation) [2008] VCAT 1784 at [85]–[86].

48. See I Freckelton and J Flynn, ‘Paths Toward Reclamation: Therapeutic Jurisprudence and the Regulation of Medical Practitioners’ (2004) 12 Journal of Law and Medicine 91. I Freckelton and D List ‘Regulations of Psychologists and Therapeutic Jurisprudence’ (2004) 11 Psychiatry, Psychology and Law 296; I Freckelton ‘Disciplinary Investigations and Hearings: A Therapeutic Jurisprudence Perspective’ in G Reinhardt and A Cannon (eds), Transforming Legal Processes in Court and Beyond (AIJA, Melbourne 2007).

49. Section 36(5) Health Practitioners Competence Assurance Act 2003 (NZ).

50. See A Reid, ‘Managing Poorly Performing Doctors’ (2006) 23(2) Law in Context 91.

51. Medical Board of New South Wales, Annual Report, 2007, at p 23: <http://www. nswmb.org.au/system/files/f53/o604//5777_ Annual%20Report%202007%20NSWMB_ AR07.pdf> accessed 28 August 2008.

52. Psychologists Registration Board of Victoria, Annual Report, 2007: <http://www.psychreg.vic.gov.au/images/annualreports/prbv_ar2007.pdf> accessed 28 August 2008.

53. Anoushka Bondar, Notifications Manager, Psychologists Registration Board of Victoria (Personal communication 16 September 2008).

54. Medical Practitioners Board of Victoria, Annual Report, 2007, at p 19: <http://medicalboardvic.org.au/pdf/AR_2007.pdf> accessed 28 August 2008.

55. Re Bainbridge [2007] PRBD (Vic) 4 at [17]: ‘even on the assumption that Ms Bainbridge was experiencing difficulties in relation to her perceptions, her judgment or her coping mechanisms, it was incumbent upon her to take such steps as were necessary to ensure that her delivery of services as a psychologist to her clients was not deleteriously affected. She had multiple options. She could have sought help from a mental health professional. She could have spoken to her supervisor about her difficulties. Or she could have taken a partial or complete break from practice until she was fit to resume. Each of these options constitutes a professional response to a difficulty that could impact adversely upon her clients. The kinds of stressors described as afflicting Ms Bainbridge were not extraordinary for a busy psychologist in the ascendant phase of her career. It was Ms Bainbridge’s professional responsibility to avail herself of at least one of them so as to guard against the wanton lapse of judgment that ultimately was exemplified by the romantic overture that she made to her client. Put another, way, it was Ms Bainbridge's obligation as a registered psychologist to take proper care to look after her “self”, the “self” being the fundamental tool of the psychologist in providing therapeutic assistance to clients.'

56. Pursuant to Reg 25A of the Public Health (General) Regulations 2002 (NSW).

57. See I Freckelton and P Molloy, ‘The Health of Health Practitioners: Remedial Programs, Regulation and the Spectre of the Law’ (2007) 15 Journal of Law and Medicine 366.

58. For a summary, see Freckelton and Molloy, ibid, at pp 368–371.

59. <http://www.psychreg.vic.gov.au/images/general/health_manual.pdf> accessed 15 September 2008.

60. See for instance s 45 of the Health Practitioners Competence Assurance Act 2003 (NZ); see also s 73 of the Medical Practice Act 1992 (NSW); s 36 of the Health Professions Registration Act 2005 (Vic).

61. Section 13(b) of the Medical Practitioners Act 1992 (NSW); s 11(1) of the Psychologists Act 2001 (NSW); see further I Freckelton `Good Character and the Regulation of Medical Practitioners' (2008) 16(3) Journal of Law and Medicine (in press).

62. Section 43(1)(b) of the Medical Practitioners Registration Act 2001 (Qld); s43(1)(b) of the Psychologists Registration Act 2001 (Qld).

63. Section 33(1)(e) of the Medical Practice Act 2004 (SA); s22(1)(b) of the Psychological Practices Act 1973 (SA).

64. Section 24(1)(c) of the Medical Practitioners Registration Act 1996 (Tas); s23(1) of the Psychologists Registration Act 2000 (Tas).

65. Section 6(2)(a) of the Health Professions Registration Act 2005 (Vic).

66. Thereby arguably overturning the effect of the decision of Sze-Tho v Medical Practitioners Board, unreported, VCAT, 22 March 2002 per Mrs Davis.

67. Section 3 of the Health Professions Registration Act 2005 (Vic).

68. Section 11AA of the Medical Act 1894 (WA).

69. Section 26(2)(a) of the Psychologists Act 2005 (WA).

70. Melbourne v The Queen [1999] HCA 32; (1999) 198 CLR 1 at [33].

71. Aavelaid v State of Victoria [1999] VSC 255.

72. In Re Davis (1947) 75 CLR 409 at 416 per Latham CJ.

73. Aavelaid v Dental Board of Victoria [1999] VSC 255 at [28] per Coldrey J; see too Sze-Tho v Medical Practitioners Board, unreported, VCAT, 22 March 2002 per Mrs Davis.

74. Sze-Tho v Medical Practitioners Board, unreported, VCAT, 22 March 2002 per Mrs Davis; see too New South Wales Bar Association v Cummins [2001] NSWCA 284; Hoile v Medical Board of South Australia (1960) 104 CLR 157.

75. McBride v Walton, unreported, New Couth Wales Court of Appeal, 15 July 1994 per Kirby P.

76. Melbourne v The Queen [1999] HCA 32; (1999) 198 CLR 1 at [105]–[107].

77. Compare, for instance, s 16 of the Health Practitioners Competence Assurance Act 2003 (NZ).

78. See I Freckelton, ‘Regulating the Unregistered’ (2008) 16(3) Journal of Law and Medicine (in press).

79. Re Geoffrey Hall [2003] PRBD (Vic) 1: <http://www.psychreg.vic.gov.au/images/decisions/decision_20030415.pdf> accessed 5 September 2008.

80. New South Wales Health, Unregistered Health Practitioners Code of Conduct Impact Assessment Statement.

81. Pursuant to Reg 25A of the Public Health (General) Regulations 2002 (NSW).

82. Section 41A of the Health Care Complaints Act 1993 (NSW).

83. D'Orta-Ekenaike v Victoria Legal Aid [2005] HCA 12; (2005) 223 CLR 1 at [39]; see generally Cabassi v Vila [1940] HCA 41; (1940) 64 CLR 130; I Freckelton and H Selby, Expert Evidence: Law, Practice, Procedure and Advocacy (4th edn Thomson, Sydney 2009, forthcoming).

84. See eg Griffiths v Ballard [2005] NSWSC 1350.

85. Mustac v Medical Board of Western Australia [2004] WASCA 156.

86. Ibid, at [129].

87. General Medical Council v Meadow [2006] EWCA Civ 1390; [2007] QB 462; [2007] 1 All ER 1.

88. James v Medical Board of South Australia [2006] SASC 267.

89. [2008] SASC 156 at [73].

90. He applied Meadow v General Medical Council [2007] QB 462 at [89]–[90], [205]–[207].

91. For a formulation of experts' duties, see National Justice Compania Naviera SA v Prudential Assurance Co Ltd (The Ikarian Reefer) [1993] 2 Lloyd's Rep 68 at 81–82; see also Polivitte Ltd v Commercial Union Assurance Co plc [1987] 1 Lloyd's Rep 379 at 386 per Garland J] and [Re J (child abuse: expert evidence) [1991] FCR 193 per Cazalet J; R v Harris [2006] 1 Cr App R 5; Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705 at [78]; FGT Custodians Pty Ltd v Fagenblat [2003] VSCA 33 at [3]; Auto Masters Australia Pty Ltd v Bruness Pty Ltd [2004] WASCA 229 at [28]; R v Mill [2007] QCA 150 at [49]; Australian Securities and Investments Commission v Rich (2005) 218 ALR 764 at [127]. They have been applied by this court in Southern Equities Corporation Ltd (in liq) v Arthur Andersen & Co (No 9) [2002] SASC 118 at [133]. See also General Medical Council, ‘Acting as an Expert Witness’:<http://www.gmc-uk.org/guidance/ethical_guidance/expert_witness_guidance.asp> accessed 28 August 2008.

92. See Health Workforce Australia, ‘National Registration and Accreditation Scheme’: <http://www.nhwt.gov.au/natreg.asp> accessed 4 September 2008. Practitioner Regulation Subcommittee, Health Workforce Principal Committee, Australian Health Ministers' Advisory Council, Consultation Paper: National Registration and Accreditation Scheme for the Health Professions, 7 October 2008.