Today’s correspondent asks whether:

… a Health Care Professional convicted of the criminal offense of sexual assault on a minor, resulting in a period of house arrest and community service – could ever work in the industry again, given the criminal conviction?

A search on the AHPRA website no longer returns any results for said individual. So the assumption is that their registration has been cancelled?

Why do some criminal convictions appear under the Tribunal Findings of the AHPRA website, but not others?

Would the criminal conviction not be a permanent barrier to gain registration in the future?

Given the audience of this blog, I’ll refer to the Paramedicine Board to answer this question.  For paramedics (and I’m sure the answer will be the same for nurses and medical practitioners) the answer is found in the Criminal History Registration Standard (17 May 2018).  A paramedic, when seeking registration must disclose their criminal history and the Registration Standard explains how the Board will assess that history when deciding whether the applicant is a suitable person for registration.  The Standard says:

In deciding whether a health practitioner’s criminal history is relevant to the practice of their profession, the Board will consider the following factors.

1. The nature and gravity of the offence or alleged offence and its relevance to health practice.

The more serious the offence or alleged offence and the greater its relevance to health practice, the more weight that the Board will assign to the offence.

2. The period of time since the health practitioner committed, or allegedly committed, the offence.

The Board will generally place greater weight on more recent offences.

3. Whether a finding of guilt or a conviction was recorded for the offence or a charge for the offence is still pending.

In considering the relevance of the criminal history information, the Board is to have regard to the type of criminal history information provided. The following types of criminal history information are to be considered, in descending order of relevance:

a. convictions

b. findings of guilt

c. pending charges, and

d. non-conviction charges; that is, charges that have been resolved otherwise than by a conviction or finding of guilt, taking into account the availability and source of contextual information which may explain why a nonconviction charge did not result in a conviction or finding of guilt.

4. The sentence imposed for the offence.

The weight the Board will place on the sentence will generally increase as the significance of the sentence increases, including any custodial period imposed. The Board will also consider any mitigating factors raised in sentencing, where available, including rehabilitation.

5. The ages of the health practitioner and of any victim at the time the health practitioner committed, or allegedly committed, the offence.

The Board may place less weight on offences committed when the applicant is younger, and particularly under 18 years of age. The Board may place more weight on offences involving victims under 18 years of age or other vulnerable persons.

6. Whether or not the conduct that constituted the offence or to which the charge relates has been decriminalised since the health practitioner committed, or allegedly committed, the offence.

The Board will generally place less or no weight on offences that have been decriminalised since the health practitioner committed, or allegedly committed, the offence.

7. The health practitioner’s behaviour since he or she committed, or allegedly committed, the offence.

Indications that the offence was an aberration and evidence of good conduct or rehabilitation since the commission, or alleged commission of the offence, will tend to be a mitigating factor. However, indications that the offence is part of a pattern of behaviour will tend to have the opposite effect.

8. The likelihood of future threat to a patient of the health practitioner.

The Board is likely to place significant weight on the likelihood of future threat to a patient or client of the health practitioner.

9. Any information given by the health practitioner.

Any information provided by the health practitioner such as an explanation or mitigating factors will be reviewed by the Board and taken into account in considering the health practitioner’s criminal history.

10. Any other matter that the Board considers relevant.

The Board may take into account any other matter that it considers relevant to the application or notification. The Board will not require an applicant or registered health practitioner to provide further information that may prejudice their personal situation pending charges and the Board must not draw any adverse inference as a result of the fact that information has not been provided.

Note: the above factors have been numbered for ease of reference only. The numbering does not indicate a priority order of application.

Discussion

There is not list of unforgivable offences, rather the factors listed must be considered. In the context of the facts given in the question the Board would need to know how long ago the offence occurred, was the defendant then a registered health professional or were they 17 and the victim not yet but nearly 16, how old was the victim, did the offending occur in the context of health practice (eg was the victim a patient).  If the offending occurred where the offender was a health practitioner (and so well and truly an adult) who took advantage of a young person that was in his or her care and the offender is still under sentence, then I think we could be confident that they are not about to get their registration back.  And given that a critical issue is how long ago the offending occurred, if they do want to get registered again the relevant test will be the law as at the date of their application, and that could be very different from the law in force today.

In short, we cannot say they could never regain their registration, although we might expect that it is unlikely.  At the end of the day (assuming the law remains as it is today) it would be up to the registration authorities to make a decision based on the factors listed in the Registration Standard or equivalent at the time of registration.

Why do some criminal convictions appear under the Tribunal Findings of the AHPRA website, but not others?

I cannot say definitively why some criminal convictions appear under the Tribunal Findings of the AHPRA website, but others do not, but having had a look at the Court and Tribunal decisions page I would infer

1. Decisions from NSW are excluded as NSW is a co-regulatory jurisdiction ie NSW procedures are not managed by AHPRA or even the relevant Boards;
2. Decisions that are reported are where AHPRA or the relevant Board is a party to proceedings.

For example in Pharmacy Board of Australia v  VGV ‘a tribunal has cited public protection when cancelling the registration of a pharmacist who was found guilty of criminal offences’.  That is reported but, in another case, perhaps the one my correspondent has in mind, if the practitioner surrendered their registration or consented to orders cancelling their registration there would be no Tribunal decision to report.

In Ahpra v Name not disclosed we’re told ‘A Queensland Magistrates’ Court has fined a former paramedic for practising on a remote mine site while suspended.’ That is a criminal conviction where AHPRA was the prosecutor. In a case such as the one my correspondent has raised, it would be the DPP (or the Crown) that was the prosecutor so this would not appear on the AHPRA database.

AHPRA does say ‘We also publish a link to tribunal or court decisions on each practitioner’s record on the Public register which involve adverse findings and which were delivered after the start of the National Registration and Accreditation Scheme’ but if the person’s name does not appear on the register as they are no longer registered, then that will not appear.

My correspondent says ‘A search on the AHPRA website no longer returns any results for said individual. So the assumption is that their registration has been cancelled?’  I note that AHPRA publishes details of ‘cancelled, disqualified and/or prohibited health practitioners’.  The particular practitioner may have surrendered their registration rather than had it cancelled or been disqualified, or given I don’t know how long ago the offending occurred, it may be that AHPRA don’t know about it or haven’t yet dealt with it.

This blog is made possible with generous financial support from the Australasian College of Paramedicine, the Australian Paramedics Association (NSW), Natural Hazards Research Australia, NSW Rural Fire Service Association and the NSW SES Volunteers Association. I am responsible for the content in this post including any errors or omissions. Any opinions expressed are mine, and do not necessarily reflect the opinion or understanding of the donors.