An academic with an Australian paramedic school notes that:
Students undertaking paramedic entry-to-practice university study typically need to complete a reflective journal during their clinical placements. With national registration of paramedics and mandatory reporting about to commence, a colleague has raised a question regarding potential that a reflective journal completed by a student may contain allegations of unsafe/unethical or illegal practice that they observed during their clinical placement, where this alleged behaviour may have compromised patient safety. If the student is interviewed by the supervising academic and they confirmed their observation of the event, where does the academic (a registered paramedic) stand regarding obligations to report this? Should the academic report directly to AHPRA or should the student (as a student registrant) be encouraged to report?
The reference to mandatory reporting is found in the Health Practitioner Regulation National Law. Relevant provisions of that law are, first, the definition of ‘notifiable conduct’.
“notifiable conduct” , in relation to a registered health practitioner, means the practitioner has—
(a) practised the practitioner’s profession while intoxicated by alcohol or drugs; or
(b) engaged in sexual misconduct in connection with the practice of the practitioner’s profession; or
(c) placed the public at risk of substantial harm in the practitioner’s practice of the profession because the practitioner has an impairment; or
(d) 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 inference is that the paramedic student has observed another health practitioner engage in ‘notifiable conduct’ and has reported that to their academic mentor/supervisor. The National Law goes onto say (cl 141):
(1) This section applies to a registered health practitioner (the “first health practitioner”) who, in the course of practising the first health practitioner’s profession, forms a reasonable belief that—
(a) another registered health practitioner (the “second health practitioner” ) has behaved in a way that constitutes notifiable conduct;…
(2) The first health practitioner must, as soon as practicable after forming the reasonable belief, notify the National Agency of the second health practitioner’s notifiable conduct or the student’s impairment.
In the context of the question the first health practitioner is the academic who forms the belief of the second practitioner based on the report from the student.
The Paramedicine Board in its advice on registration says (at https://www.paramedicineboard.gov.au/Registration/Check-if-you-need-to-register.aspx; emphasis added):
The Board recognises that the actual breadth of paramedic practice is not limited. It can encompass a wide variety of both clinical and non-clinical activities in a wide variety of roles and settings including in jurisdictional ambulance services, health services, hospitals, the defence forces, private industry, academia and broader government.
Practising includes using professional knowledge in a direct non-clinical relationship with clients, working in management, administration, education, research, advisory, regulatory or policy development roles, and any other roles that impact on safe, effective delivery of services in the profession.
Let us assume therefore that the academic receiving the report is a registered paramedic and that receiving the report is in the course of practising [their] …profession’ as a paramedic.
That then begs the question of whether or not the report gives rise to ‘a reasonable belief that— (a) another registered health practitioner [ie the practitioner observed by the student] …has behaved in a way that constitutes notifiable conduct’.
The first objection is that the academic has no personal knowledge of any notifiable conduct and his or her impression is clearly what we lawyers would call ‘hearsay’. But the fact that it’s hearsay means that academic could not give evidence, in court, of what he or she was told in order to prove that what he or she was told was true.
But just because information is hearsay or inadmissible does not mean it cannot form the basis of a reasonable belief or suspicion. In R v Rondo [2001] NSWCCA 540 Smart AJ said (at [53]) ‘Reasonable suspicion is not arbitrary. Some factual basis for the suspicion must be shown. A suspicion may be based on hearsay material or materials which may be inadmissible in evidence. The materials must have some probative value.’
The fact that the conduct was not directly observed does not mean that the academic does not or cannot have the necessary reasonable belief. But whether they do have that belief is a matter they have to decide. ‘A suspicion that something exists is more than a mere idle wondering whether it exists or not; it is a positive feeling of actual apprehension or mistrust, amounting to ‘a slight opinion, but without sufficient evidence’ (Queensland Bacon Pty Ltd v Rees (1966) 115 CLR 266). If the academic were to consider making a report, he or she would have to actually believe the notifiable conduct occurred not that it has been raised so the academic wants to report it to protect their own position and without really thinking about whether the material presented.
What a person would consider in deciding whether they had an actual belief that notifiable conduct had occurred would vary with each allegation, but I suggest one would consider the seriousness of the alleged conduct, the risk to the public and the student’s veracity in reporting it. One would want to have a detailed conversation with the student and ideally would urge them to report the issue but we can understand why a student may be unwilling to do that. To hold the necessary belief is to have a state of ‘mind towards assenting to, rather than rejecting, a proposition’ that the second practitioner has engaged in notifiable conduct (George v Rockett (1990) 170 CLR 104). If the academic reflects on the student’s report and ideally discusses the situation with the student and then believes that notifiable conduct has arisen, then that would seem to attract s 141 and the obligation to report.
To test that conclusion, we can ask ‘what is the alternative?’ If the alternative is there is no obligation to report as the academic did not observe the conduct in question then that begs the question of why do they ask the students to reflect and second, being put on notice, what is the academic institution doing to protect its students from being subject to notifiable conduct or having observed it, to understand their professional obligations. And should we allow patient’s to be put at risk simply because the conduct was not seen. Many behaviours will be ‘unseen’ but things that are seen, observed or known suggest that notifiable conduct has occurred. For the academic, the student’s report is something that comes to his or her attention that suggests notifiable conduct has occurred just as observing bruises on the patient or anomalies in the drug stock may suggest conduct, that has not been observed, has occurred.
Conclusion
The question was premised on a student’s reflective journal containing ‘allegations of unsafe/unethical or illegal practice that they observed during their clinical placement, where this alleged behaviour may have compromised patient safety’. The question was
…If the student is interviewed by the supervising academic and they confirmed their observation of the event, where does the academic (a registered paramedic) stand regarding obligations to report this? Should the academic report directly to AHPRA or should the student (as a student registrant) be encouraged to report?
Accepting that the academic is practicing as a paramedic then if he or she is satisfied that the material presented does disclose notifiable conduct then I think s 141 of engaged and the conduct should be reported. It may be better to encourage the student to report but if he or she won’t or feels they cannot then it may be up to the academic in order to protect both the student and patients.
Before making a report, the academic has to move from thinking ‘if that’s true, that’s notifiable conduct’ to ‘I think that is probably true and is notifiable conduct’. The belief doesn’t have to be satisfaction beyond reasonable doubt or even balance of probabilities but ‘a positive feeling of actual apprehension’ that notifiable conduct occurred. If after reading the report and if possible interviewing the student the academic holds an actual belief that notifiable conduct occurred then arrangements should be made to report that conduct, whether that’s supporting the student to make the report or making the report themselves.
And we may think the report from the academic has little probative value and that may be true. The Board may consider that it’s not enough, but you also cannot know whether this report will be the 2nd (or 3rd, or 4th etc) report on this practitioner – and that AHPRA won’t say ‘even if we can’t rely on this hearsay report it certainly adds to our concern about this practitioner and tells us that we need to seriously investigate this person’s practice’.
Australian Emergency Law 
Excellent discussion, and thanks again for a very detailed and well-supported answer.
I see another option to this dilemma and I’m wondering if might be considered a satisfactory to the Board. If I, as a Clinical Coordinator for a university, receive notification of a possible ‘notifiable’ situation as defined under s 141, and I then immediately notify the Ambulance Service for them to investigate – as they have the authority and ability to immediately do so – would that be considered an adequate response or MUST I report it directly to the Board?
My argument for asserting it IS an appropriate response is that I can’t possibly know if it is true, but the employer can, and it is a more appropriate and fair process (to all involved) for there to be a proper investigation into the allegations. I’m curious what your view of this response would be.
Thanks again for a great blog.
I can’t say what would satisfy the board, a disciplinary panel or a relevant tribunal should the matter ever arise. As noted the obligation to report “applies to a registered health practitioner … who, in the course of practising the first health practitioner’s profession, forms a reasonable belief that— (a) another registered health practitioner (the “second health practitioner” ) has behaved in a way that constitutes notifiable conduct;…”
The test is both subjective and objective. The subjective part is the question of the first practitioners belief – do they believe that there was ‘notifiable conduct’ – not ‘if what I’ve been told were true, that would be notifiable’ but ‘I believe that this notifiable conduct did occur’. The objective part is that there has to be ‘reasonable grounds’ for the belief – the student told me material, their story made sense, it was consistent, there was corroborating evidence etc, not ‘I consulted the tea leaves and they told me it was true’.
It’s true that as an academic you can’t know where the truth lies. The obligation to report to the Board is not an obligation to report everything you hear, things you suspect, etc but those things which you believe are true and where you have reasonable grounds to suspect that they are true. Where your belief does not meet that threshold then it may well be more appropriate to raise the matter with the employer.
Think of examples. A students says ‘I was rostered with this supervisor and I’m pretty sure he was affected by drugs when on duty’. That may be something to report to the ambulance service. But what if two students come to you independently of each other and both report seeing the supervisor sexually assault an unconscious patient. You have two students report it, the risk is imminent etc. Of course you don’t know the truth. Whether you report to the Board or the ambulance service you are inviting them to investigate, no-one is going to act simply on your report.
In that second example it’s your call – do you think that should go to the Board or the service?
That’s obviously a compelling example and I doubt any of us would hesitate to report the second case. Thanks for your clarifying thoughts. It’s going to be an interesting area to watch as it develops.