Today I’m asked if there are

… any AHPRA type consequences for a doctor signing an undertaking for family violence in Vic. Is it self-reportable or mandatory reportable if an employer found out?

Victorian Legal Aid has this to say about family violence intervention orders:

A family violence intervention order is a court order that aims to protect a person from someone who has used family violence. An intervention order can also protect children, property or people supporting the protected person.

With respect to undertakings and family violence they say:

Option 2 – Agree to an undertaking instead of an order

Sometimes an applicant may accept an undertaking. An undertaking is a formal written promise to the person who needs protecting and to the magistrate that you will follow certain rules.

If you break the rules of an undertaking, you can’t be charged by the police unless you have committed an offence, but the applicant can bring their application for an intervention order back to court. Breaking the rules of an undertaking makes it more likely that an intervention order will be made against you, as you did not keep your promise to the applicant or the court. The court takes this very seriously. You can only give an undertaking if the applicant agrees to accept it. The applicant does not have to accept an undertaking. It’s their choice.

See also National Domestic and Family Violence Bench Book on Undertakings.

A court can make a Family Violence Intervention Order ‘if the court is satisfied, on the balance of probabilities, that the respondent has committed family violence against the affected family member and is likely to continue to do so or do so again’ (Family Violence Protection Act 2008 (Vic) s 74).  Making of an order is a civl not a criminal order (see s 96(1)(e)).  Withdrawing the application and accepting an undertaking is even more clearly not a conviction of a criminal offence.

The Health Practitioner National Law defines ‘notifiable conduct’ (s 140) as

(a)       practising the practitioner’s profession while intoxicated by alcohol or drugs; or

(b)       engaging in sexual misconduct in connection with the practice of the practitioner’s profession; or

(c)       placing the public at risk of substantial harm in the practitioner’s practice of the profession because the practitioner has an impairment; or

(d)       placing the public at risk of harm by practising the profession in a way that constitutes a significant departure from accepted professional standards.

Other practitioners and employers are required to report instances of notifiable conduct (ss 141 and 142).  Assuming the victim is not a patient, then the allegation of family violence is not ‘notifiable conduct’ unless the circumstances suggest that the doctor has an ‘impairment’.

A practitioner can make a voluntary notification that another practitioner ‘… is not, or may not be, a suitable person to hold registration in the health profession, including, for example, that the practitioner is not a fit and proper person to be registered in the profession’ (s 144(1)(c)).  One might think that the circumstances go to the practitioners fitness to hold registration.

The Health Practitioner National Law s 5 defines criminal history as

(a)       every conviction of the person for an offence, in a participating jurisdiction or elsewhere, and whether before or after the commencement of this Law;

(b)       every plea of guilty or finding of guilt by a court of the person for an offence, in a participating jurisdiction or elsewhere, and whether before or after the commencement of this Law and whether or not a conviction is recorded for the offence;

(c)       every charge made against the person for an offence, in a participating jurisdiction or elsewhere, and whether before or after the commencement of this Law.

A registered practitioner is required to notify AHPRA (the Australian Health Practitioner Regulation Agency) if they are charged with ‘an offence punishable by 12 months imprisonment or more’ (s 130(3)(a)(ii)).  Being named as a respondent to an application for an intervention order is not the same as being charged with a criminal offence.

Even if it could be argued that a finding by a court that a doctor ‘on the balance of probabilities, … has committed family violence against the affected family member and is likely to continue to do so or do so again’ is a ‘finding of guilt’ (sub-paragraph (b) above) that cannot be true if the application is withdrawn even if it is only withdrawn on the basis that an undertaking is given.  If the matter is withdrawn the court will make no finding.

Conclusion

A doctor who is the respondent to a Family Violence Intervention Order is not required to report that to AHPRA (s 130) nor is the doctor’s colleagues required to report it as it is not a notifiable event (ss 141 and 142). Another practitioner may make a voluntary disclosure if he or she believes the circumstances suggest that the respondent doctor is no longer a fit and proper person to be registered as a medical practitioner (s 144) and that could be true even if the application is withdrawn on the basis of an undertaking.

The doctor would be required to report to AHPRA if he or she was also charged with an offence (eg assault, which carries a maximum penalty of 5 years imprisonment (Crimes Act 1958 (Vic) s 31)).  That would be true even if the criminal charges are withdrawn and the application for the order is resolved by an undertaking.

Any doctor who is the respondent to an application for a Family Violence Intervention Order would be well advised to consult their solicitor or medical defence organisation very early in the process to get advice on how the different outcomes might affect them on whether the making of the order might affect their fitness to practice, and whether they should raise it with AHPRA.

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.