While nearly nine out of 10 GPs (88%) support permanently publishing tribunal findings involving sexual misconduct in cases where there’s a corresponding criminal conviction, just three out of 10 (32%) support it in cases without a criminal conviction, a national Healthed poll with more than 2300 GP respondents has shown.

Unfortunately, there is no such distinction in the changes to national law set to take effect in April.

David Gardner, a solicitor who assists health professionals with AHPRA complaints, shares the sentiments of GPs in Healthed’s survey.

“The net is currently too broad of who this catches,” Mr Gardener says.

“If there is a corresponding criminal conviction that relates to sexual misconduct, then I can absolutely see the reason why you would have that on the register. The concern is where it’s a consensual matter.”

He notes that cases of consensual relationships between a practitioner and patient already constitute a breach and get sanctioned. “But does that person deserve to be treated exactly the same on the register as someone who’s committed sexual assault against a patient? I don’t think so.”

What do the legislative changes entail?

Guidance published by AHPRA late last year explains sexual misconduct may occur “even if other parties involved consent to the conduct,” “through telehealth or other forms of remote health care,” and/or “even if there is no criminal prosecution for the conduct.”

“Sexual misconduct is not limited to explicit acts like assault or harassment. It includes a spectrum of behaviours that may appear subtle but can still cause harm and violate ethical standards,” the guidance notes.

Regardless of those factors, if a Board determines that a basis for a tribunal finding was that the health practitioner engaged in sexual misconduct, the legislative changes require key information to be published on AHPRA’s public register. This will include a statement that the practitioner engaged in sexual misconduct, any sanctions, and a link to the tribunal’s decision.

Moreover, these requirements will be applied retrospectively to findings dating back to 2010.

Notably, only convictions involving sexual misconduct, regardless of whether or not they are a criminal offence, will be listed on the register. Other types of misconduct, even when they’re serious, will not have the same listing.

Sexual misconduct also does not have to be the main basis for the tribunal finding for the requirement to apply. The case could be about something entirely different, but if there is a single boundary violation involved, the ongoing listing will be required.

Will this make the public safer?

“I don’t see how having a really, really broad definition protects the public. I think it forces practitioners out of the profession and that’s not a good thing,” Mr Gardner says.

GPs in Healthed’s survey overwhelmingly think there will be significant consequences for these practitioners who have sexual misconduct findings published. Eighty percent expect a “very severe impact” while 17% think there will be a “moderate” impact.

“80% of 2342 surveyed GPs think the impact on practitioners who have sexual misconduct findings published will be ‘very severe.’”

The Boards also have very limited discretion, Mr Gardner adds.

“It is a blanket, ‘you must include this if it’s sexual misconduct.’ The only real discretion is what is sexual misconduct? And that could be a very, very, very broad interpretation. There’s no real guidance around what sexual misconduct actually means.”

In its guidance, AHPRA itself notes that “sexual misconduct is a broad concept that is not defined under the National Law.” An example involving a practitioner who hugged a patient once at the end of a consultation is deemed “unlikely” to be sexual misconduct – but there are no clear criteria to rule it out definitively.

Will the changes be consistently applied?

Experiences may also differ considerably depending on which state or territory someone practices in.

“If there is a decision by the tribunal that suppresses the practitioner’s name, then there would not be a statement on the register that they’ve engaged in sexual misconduct,” Mr Gardner explains.

“For example, if you are in Queensland, you are more likely to avoid ending up on the register because anonymisation or pseudonym orders are much easier to get in Queensland. In some other states, I think I have a better chance of flying to the sun than I do of getting an anonymisation order. So practitioners in other states will almost always be named for the same conduct that would be anonymised in Queensland.”

“And for a national scheme, that appears profoundly unfair as well,” Mr Gardner says.

Prominent GPs speaking out

Leading GPs including former RACGP president Dr Karen Price, former AMA president Dr Mukesh Haikerwal, Australian Doctors Federation chair Dr Aniello Iannuzzi and former Queensland assistant health minister Dr Chris Davis are among those speaking out. In a letter published in AusDoc last month they argued that the safeguards  generally applied in society are missing in the new legislation which does not require proof beyond a reasonable doubt.

“Even with recent expansions to public access, inclusion on a police-maintained sex-offender register generally follows a criminal conviction or guilty plea, requiring proof beyond reasonable doubt. The investigative processes are robust, the evidentiary standards are high and the safeguards are well established,” the doctors wrote.

“By contrast, a doctor may now be permanently and publicly identified as having engaged in sexual misconduct following a regulatory finding made on the civil standard — the balance of probabilities. In practical terms, this means a practitioner may incur an extraordinarily severe and enduring penalty because a tribunal simply prefers one version of events over another, even marginally.”

They also say the retrospective nature of the legislation is “deeply problematic.”

Mr Gardner agrees, noting that particularly for less serious kind of matters, people sometimes make pragmatic admissions to something that they may not necessarily agree with, to get it over with and get back to work. “And they had no knowledge at that point when they made that pragmatic admission that this was going to be the result.”

Avant has also raised serious concerns, calling the changes “unfair and disproportionate, and inconsistent with established legal principles in Australia, especially in cases where regulators have found there is no ongoing risk to the public.”

“We have continued to advocate to ensure clearer guidance is provided on how the Board will apply the new requirements, to provide as much clarity as possible for practitioners,” Avant adds.

What your colleagues are saying

In favour

“As doctors unfortunately or fortunately- we are pillars of society and have to have a very firm moral standing and appearance. I feel something like sexual misconduct is almost unforgiveable.”

“Even with no criminal conviction, the public needs to be protected from predatory behaviour especially in a trusted profession like medical service providers.”

“Encourage safe practices and maintaining the Hippocratic oath for all health professionals.”

Concerns over false claims

“I generally strongly agree, but I am worried about the possibility of false accusations.”

“The doctor who does sexual misconduct needs to be investigated and punished if charged. But this is a very grey area because doctors do cervical screening tests and pelvic examination and breast examination, so some patients may accuse the doctor of sexual misconduct for financial gain and compensation.”

“There are known cases where the professional is innocent but cannot prove it. This policy will affect the professional’s reputation forever.”

Opposed

“AHPRA is not a Court of law, or is it? Does the same apply to other professions like Law Society?”

“I strongly believe that allegations of sexual misconduct must be established by clear and convincing evidence; otherwise, there is a significant risk of serious harm to a clinician’s professional reputation and personal life.”

“If AHPRA allows them to continue practicing, then they must feel they are safe. If AHPRA doesn’t impose long term restrictions, then publicly shaming them after their time is served and AHPRA doesn’t feel they are a risk is nastiness. Why return them to practice if you feel there is ongoing risk?”

“I have trust issues with the tribunal. These cases must be proven to a high level before any public shaming.”

“Probable very high rate of doctor suicide due to permanent, lifelong (and possibly even posthumous) public denigration, with no chance whatsoever of redeeming themselves in their lifetime. Even murderers, once sentence completed and after undergoing rehabilitation and re-assessment, are usually allowed to rejoin society in some way without permanent and very public humiliation which will prevent them from ever gaining any type of worthwhile ongoing employment, even outside medicine.”

“I think it will encourage mob mentality and feed in the current social dynamic of lodging a complaint if anything isn’t to your satisfaction.”