Over the past decade, reports of sexual misconduct by Australian health practitioners against patients have increased. While various reforms have tried to curtail “sexual boundary violations”, none has worked.
They seek to reorient the “inherent power imbalance” between practitioner and patient, in favour of patients. The aim is to increase public information about previously sanctioned practitioners and to better protect those who complain.
What are boundary violations?
In health-care regulation, health practitioners’ boundary violations (or boundary crossings) cover a spectrum of sexual transgressions against patients.
These obviously include serious or criminal sexual assaults and exploitation. However, they also cover innuendo, intrusive questions and inappropriate physical examinations. Then there are sexual relationships with former and current patients – consensual or not.
The Medical Board of Australia’s guidelines for sexual boundaries describes how boundary violations breach patient trust, undermine patient safety, and erode public confidence in the medical profession.
How common are boundary violations?
Still, Australia’s national regulator of health practitioners, known as Ahpra, received 841 notifications about 728 registered practitioners concerning boundary violations in 2022-2023. This is an increase of more than 220% from 2019-2020.
Of these notifications, 359 related to medical practitioners (including psychiatrists), while 215 related to nurses and 120 to psychologists.
Independent analysis of Australian tribunal cases for boundary violations indicates between roughly 65% and 80% of those accused are male.
As reported boundary violations have surged, public interest in the issue and its impacts has sharpened.
Meanwhile, public inquiries have spotlighted the regulator’s role and responsibilities.
For instance, Tasmania’s inquiry into child sexual abuse examined evidence of Ahpra’s response to sexual abuse by a paediatric nurse. The National Health Practitioner Ombudsman’s review found protections for complainants should be strengthened.
Here is what is on the table.
1. More public information about past violations
This proposed reform would allow Ahpra to disclose the “full regulatory history” of any health professional found guilty of professional misconduct for sexual violations in a civil tribunal or found guilty of sexual offences in a criminal court.
This would raise “red flags” on the public register about certain practitioners, which a patient could access.
Currently, regulatory impositions – such as practice conditions, reprimands, suspensions or deregistrations – are recorded on the register but usually removed once they lapse or expire.
2. Consistent reinstatement of deregistered practitioners
This seeks to harmonise across the country how deregistered health practitioners are reinstated.
Currently, only New South Wales law requires disqualified health practitioners to obtain a “reinstatement order” from a civil tribunal before applying to the relevant health profession council for reinstatement. The tribunal’s deliberations are heard in open hearings, its reasons and decision published to the public, and in turn may be reported by the media and read by patients.
Elsewhere, the state health practitioner boards typically reinstate practitioners without any publicly available decision, or the reasons behind the decision.
3. Banning non-disclosure agreements
The 2022 independent investigation into cosmetic surgery practitioners in Australia revealed some doctors who resolved disputes privately with aggrieved patients had used non-disclosure or confidentiality agreements, presumably to shield themselves from liability.
This proposed reform seeks to prohibit health practitioners using non-disclosure agreements to eliminate any chance they might stop or dissuade patients from reporting misconduct.KellySHUTSTOC/Shutterstock
What would the proposed changes mean?
Currently, many patients who have been harmed by serial offenders have no way of knowing a practitioner had been previously sanctioned for the same or similar misconduct.
While some health practitioners will see these reforms as oppressive or punitive, only those found guilty in an open tribunal or court of the most serious professional misconduct for boundary-crossing transgressions or sexual crimes would be affected.
While promising, the reforms are not laid in stone. Public consultation is now underway until February 19.
Authors: Christopher Rudge, Law lecturer, University of Sydney