Today’s question is about mandatory reporting and health impairments. A paramedic
… recently came across a situation at a CPD day that was being facilitated by my employer… One of the topics discussed were the new mandatory requirements of paramedics. A scenario was put to us as follows (I’m paraphrasing): “you are attending to a patient, suffering from a suspected drug overdose. During your attendance to the patient, you are made aware that the patient is at university studying paramedicine (and therefore a student paramedic who is required to be registered). Are you obliged to report the student paramedic to AHPRA?”
This scenario led to some quite spirited discussion and debate. Ultimately, the facilitator of the session read out a statement that essentially suggested (by my interpretation) that in this case we should report the student to AHPRA, despite the fact that this would require breaching of patient confidentiality. I am wondering where we would stand legally if we did this? Wouldn’t we be breaking the law to report the student paramedic to AHPRA as they are our patient and we are obliged under relevant legislation to maintain patient confidentiality?
The mandatory reporting requirements are set out in the Health Practitioner Regulation National Law. I’m not sure what jurisdiction my correspondent is from so I’ll quote the law as it applies in Queensland. The Health Practitioner Regulation National Law (Queensland) s 141 says:
(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; or
(b) a student has an impairment that, in the course of the student undertaking clinical training, may place the public at substantial risk of harm.
(2) The first health practitioner must, as soon as practicable after forming the reasonable belief, notify the health ombudsman of the second health practitioner’s notifiable conduct or the student’s impairment.
I infer that we are talking about a conscious choice to take the overdose regardless of whether it’s an overdose of an illegal, recreational drug or an attempt at self-harm and that it is not an accidental overdose of a prescribed medication or a situation of involuntary consumption eg ‘drink spiking’. I shall assume, without debating it, that identifying the student paramedic has deliberately overdosed does give rise to a reasonable belief that the ‘student has an impairment that, in the course of the student undertaking clinical training, may place the public at substantial risk of harm’.
Patients have a right to expect that their information will be held in confidence and that their privacy will be protected, but those rights can and are overridden by law. With respect to the privacy principles the obligation to use information only for the purposes for which it was obtained do not apply where the release of the information is required by another law. In Queensland Privacy Principle 10 (Information Privacy Act 2009 (Qld) Sch 3) says (emphasis added):
(1) An agency having control of a document containing personal information that was obtained for a particular purpose must not use the information for another purpose unless—…
(c) use of the information for the other purpose is authorised or required under a law…
In short the mandatory reporting requirements of the Health Practitioner Regulation National Law take precedence over the duty of confidentiality and the patient’s right to privacy.
It is well known that this issue is problematic as it may discourage practitioners seeking health care from their professional colleagues for fear of being reported. To that end Western Australia has granted an exemption. The Health Practitioner Regulation National Law (WA) (set out in the Schedule to the Health Practitioner Regulation National Law (WA) Act 2010) cl 141 adds paragraph (4)(ca). That section says:
(4) For the purposes of subsection (1), the first health practitioner does not form the reasonable belief in the course of practising the profession if —…
(ca) the first health practitioner forms the reasonable belief in the course of providing health services to the second health practitioner or student…
(See also AHPRA Mandatory reporting (2019)).
Conclusion
It’s true the obligation to report a student’s impairment is inconsistent with that person’s right to expect confidential treatment and to have their privacy respected. That these principles are inconsistent is neither new nor unknown. The legislature has considered this and determined that the obligation to report the impairment takes priority over the obligation to maintain the patient’s privacy (except in Western Australia). It is not ‘breaking the law to report the student paramedic to AHPRA’; it would be breaking the law to fail to do so (except in Western Australia).
Australian Emergency Law 
Would the same principle apply for registered practitioners who attend patients who also work in a volunteer capacity with an ambulance service? Even though they aren’t registered or considered employees in this particular jurisdiction?
No, AHPRA deals with registered health professionals and students. You could not report non registered people to AHPRA. None of this post would be relevant to volunteer, non-registered ambulance officers which is not to say they should not or could not be reported to their employer/agency but not on the basis of the law discussed here.
Hello,
During that CPE, other facilitators had a differing views which were supported by the service. They were that as the student is not currently undertaking clinical education (e.g. having a night out) that it was not reportable, however if they were clearly impaired whist being educated then it was reportable. They were very clear that we were not to report on student behaviour outside of witnessed behaviour in a clinical/educational capacity. Their reasoning was that as the student was in their own time not “in the course of undertaking clinical training” and as such patient confidentiality should not be breached.
I think we’re getting too bogged down in the detail and we’re confusing the issue of whether or not there is the requisite belief, and what to do about it if there is such a belief.
The issue is that if you, as a registered paramedic, have ‘a reasonable belief that— … a student has an impairment that, in the course of the student undertaking clinical training, may place the public at substantial risk of harm’ then you have to report it. You may become aware of that impairment when they are working or when they are not. Being affected by drugs is a transient impairment, in that you can be intoxicated when not engaged in clinical training and stone cold sober when you are and, although you are impaired when intoxicated that is not a risk of harm to the public. But the fact you have a drug or alcohol addiction may be different, that is an ongoing impairment.
The point is that there is no clear line here about what happens in or out of a clinical training scenario. You may form the view that the person is mentally ill and that is an impairment (depending on how it manifests) and you may believe that this impairment could ‘in the course of the student undertaking clinical training … place the public at substantial risk of harm’ or you may not.
What is grounds for the relevant belief was not the subject of this post however. This post was about what law trumps the other. My correspondent thought the duty of confidentiality and the obligations to protect privacy would trump the duty to report, my conclusion is that it is the other way. The privacy principles do not apply when disclosure is required by law. Whether a paramedic has the necessary belief and the grounds for that belief is a seperate issue and not one that I was addressing here.
what if the patient was from Western Australia and just visiting NSW?
The law is about the first practitioner’s obligations, so the exception in WA applies if the treating practitioner is in WA not where the patient is from. A patient from WA who is treated in NSW and that reveals reportable conduct can expect to be reported.
Mandatory reporting of misconduct by our colleagues (be it sexual, drugs/alcohol, negligence, or significant physical or mental impairment) is, by the nature of its terminology, ‘mandatory’. The reason it trumps confidentiality is because it is outweighed by the priority to protect the public/patient from potential harm. (Similarly is the case of mandatory reporting in suspected child abuse or neglect.)
I think in cases of sexual misconduct and taking illicit drugs, it’s pretty clear that we are obliged to report these cases to AHPRA or relevant regulatory body for review.
Where it becomes difficult is concerning cases of mental health. Where a medical colleague or a patient who is a medical practitioner with mental health issues has confided in you; should we be reporting these people? And if enforcing mandatory reporting concerning mental health in such cases will only discourage those of us working in the medical profession suffering from mental health issues to seek help? Do you have an opinion on this, Prof. Eburn?
My opinion is that you have summed up the dilemma. Mandatory reporting by doctors, teachers, priests etc all creates a problem in that it discourages people making admissions that may be important if they are to receive care and that care may go further in protecting the public than public action. On the other hand formally dealing with an issue allows patients (in the context of health professionals) to make more informed decisions about which carer to trust, gives rise to public confidence in the professions and actions taken by health registration authorities such as restrictions on practice are intended to protect the public not be punitive. That’s the dilemma and the balance has been struck in favour of mandatory reporting.
It is interesting that WA have created an exception that doesn’t apply in other jurisdictions. That is problematic because it makes the national system not quite national. On the other hand the advantage of the states is that there can be experiments. This gives a control where the practice is slightly different in WA and over time one hopes there may be studies to indicate whether the presence, or absence, of s 141(4)(ca) helps or hinders patient protection.
I think the difficulty and/or vagueness lies in how the treating clinician deems the ‘mental health issue’ to be a significant ‘impairment’ on the practitioner’s ability to perform their duties as a healthcare professional.
I would argue that the concept of an “impairment” needs to be considered. The fact a student has a had a drug overdose does not itself imply an impairment. For example, if the student was a party and a friend convinces them to try an illicit drug for the first time, resulting in an overdose, that is neither an addiction nor a pattern of behaviour. If the incident occurs months away from their next clinical placement, I would posit that it would be difficult to establish a risk to patients from an isolated event in the absence of a history of other drug use behaviours. Ultimately mandatory reporting is designed to protect the community from a risk, so I think it is important to establish a definable risk before an incident would meet the burden for reporting.