Tips on how to respond to an AHPRA notification

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On this page, we’ll give some information on how to respond to a notification. Our quick tips are: 

• Identify the issues raised in the notification with reference to the standards for practice, codes of conduct or codes of ethics. 

• Evidence gathering is essential. You cannot fake facts. The stronger the evidence, the better the prospects. 

• Look at the present and future, not so much in the past. AHPRA is concerned with current risk. It is not about punishing past deeds. 

Practitioners should remember that what they put in writing cannot be taken back. Extreme caution should be exercised with responses to AHPRA – even informal responses. We hope this guide helps in your response. Please feel free to contact us if you require further assistance. 

Step 1: working out the issues raised by the notification and whether they concern notifiable conduct 

Once notice of a notification is received, you should: 

1. Work out whether you fully understand the notification; 

2. Work out the issues raised in the notification and whether the conduct is actually notifiable conduct;  

3. Write a detailed account of what you recall of the events referred to in the notification; and 

4. Identify any risks to your registration and make a plan to mitigate against these risks. 

You cannot respond to a notification if you do not understand what it is about. If it is not clear what is actually being complained about, or what AHPRA is investigating, request further details.  This information is critical to enable you to identify the key issues, conduct your own investigations, reflect on the notification, commence CPD, and to plan your response. 

The issues raised must be in connection to your practice. Given AHPRA’s ambit to consider issues of public safety, they may investigate issues which may have a tenuous relationship with your practice. Serious conduct, such as some criminal actions, may impact on whether a practitioner is a fit and proper person to practise.  

Some conduct may be peripheral to practice, but may nonetheless be relevant, such as use of social media. For example, privately held opinions which are published may be incompatible with professional obligations.  

Even though AHPRA has a broad ambit of power, you should make sure AHPRA is investigating something they are able to investigate. Elringtons Lawyers has intervened in private and family matters which were outside the scope of AHPRA’s powers.  

Step 2: investigation and evidence gathering 

Facts are the key tools for reducing the risk of an adverse outcome. Facts are established by evidence, which may be in the form of: 

1. The practitioner’s (your) version of events; 

2. Statements from colleagues and/or witnesses;  

3. Documents, such as clinical records; and 

4. Expert reports. 

It is essential that an early account on what happened is made. It should be an account of those facts which may be relevant. The aim is to get evidence on: 

1. Who the practitioner is;  

2. How long the practitioner has been working for the organisation; 

3. The culture of the organisation, including support and training given to staff; 

4. The practitioner’s level of experience and training;  

5. The practitioner’s version of events about what happened; and 

6. Any mitigating circumstances. 

Documentary evidence is a cornerstone to what occurred and may be obtained by AHPRA during an investigation. A statement may also be obtained. It is essential the practitioner does not disclose confidential patient information, without lawful authority. 

Ultimately, you cannot fake facts. The stronger the evidence, the better prospects.  

Step 3: identifying risks and making a plan to mitigate these 

A risk averse approach is recommended. While an outcome involving no further action is ideal, anything allowing the practitioner to continue working is a great outcome. All notifications carry risk of some form of adverse finding. The strategy should be to evidence that there is no current risk to public safety.  

The earlier this starts the better. It can be difficult where a practitioner has taken a combative approach. Even if you later show contrition and professional growth, the evidence may show you only did it reluctantly. This could increase the risk of some form of adverse action particularly if the facts are seen to support a complaint.  

As early as possible, you should: 

1. Reflect on what occurred. This can happen at the same time as AHPRA’s investigation. 

2. Identify chances to conduct CPD. Even if AHPRA does not consider that you did anything wrong. Taking the time to do further CPD shows an opportunity to grow. It is best if the CPD is formal, so that certificates of completion can be submitted. This is where identification of the issues pays off, as CPD can be targeted towards those issues. 

3. If there are medical issues, engage with a health practitioner early to address these. 

4. Consider expert evidence if the issues raised could lead to a finding of unprofessional conduct or professional misconduct. 

Step 4: your response 

The response is broken up into liability and determinations (sanctions). The liability stage determines whether there has been any unsatisfactory professional performance, unprofessional conduct or professional misconduct. If there is a finding of any of these forms of misconduct, the next stage is the determination stage for what the sanction (if any) should be. Responses should address each stage. Therefore, the initial response is a liability response. 

Liability response 

We recommend the following:  

1. Stick to the facts.  

2. Do not shift the blame on to others. If other parties were involved, they can mention it. If they did not receive adequate training, they can mention it. However, care needs to be taken when doing so. 

3. Less is more. Aim to be concise and clear. 

4. Address each of the issues which AHPRA has raised as being relevant. Use them as headings. 

5. Address the issue of public safety! Even if there was deficient conduct shown in the notification, demonstrate why there is no current risk by using your evidence of reflection and learning. If there was a health issue impairing practise, provide medical evidence. Link the evidence back to the issue of safety. 

6. Show contrition. This does not mean admitting fault (unless that is required). Evidence of reflection and taking the opportunity to develop practise is important. This shows that any risk to the public there may have been has been eliminated, meaning there is no need for a determination/sanction. 

7. Engage with standards for practice, the code of conduct and the code of ethics. 

8. Make submissions to the Board as to what the outcome should be as a separate section. Don’t mix facts and submissions. 

Determination (sanction) response 

The following principles apply to determinations: 

1. The purpose of imposing a determination is to protect the public. They are also for the protection of the profession, in the sense of maintaining stature and integrity in the eyes of the public. 

2. They are not punitive. 

3. Determinations achieve specific deterrence (deterring the specific practitioner) and general deterrence (deterring other practitioners from acting in the same way). 

4. They may assist to rehabilitate the practitioner.  

5. Personal matters such as shame, personal ordeal and financial difficulty are of little relevance, though it is acknowledged they contribute to specific deterrence.   

6. The likelihood of repeat conduct is a central consideration.  

7. The degree to which the practitioner has gained insight into their conduct is relevant to the assessment of any continuing risk posed by them. Insight can include an understanding of the nature of the conduct, an acceptance that the conduct was wrong, an appreciation of why the practitioner engaged in that conduct, empathy with the consequences, and/or a willingness to take measures to identify risk factors and to do that which is necessary to avoid further transgressions. 

The types of determinations include reprimands, cautions, conditions of registration, acceptance of undertakings, suspension of registration for a period of time, cancellation of registration, and fines.  

It is important to note that the determination which may be imposed depends on the type of misconduct found.  The imposition of a determination is a discretion. Just because there has been a finding of some form of misconduct does not mean a determination should be applied. More serious breaches will ordinarily require a determination. However, where there has been unsatisfactory professional performance, submissions should be made that a determination is not required. 

Your response should: 

1. State whether the factual findings are agreed. If not, state why. If further evidence can be provided, then that evidence should be provided. 

2. Address the issue of public protection. Ensure CPD evidence has been provided. Make submissions that there is no current risk to public safety. 

3. Address any need for deterrence. If the practitioner has shown insight and growth, there may be no need for any determination. 

Good luck! 

How Elringtons Lawyers can help 

Tom Maling leads our health law practice. Tom was formerly a registered nurse and remains very engaged with the profession, representing ANMF ACT Branch members. Tom has experience in a range of professional conduct matters involving midwives, nurses, psychologists and medical practitioners.  Our advocacy typically covers evidence gathering and submissions to AHPRA. We have also represented practitioners in Tribunals on serious matters. 

Please contact Tom if you require assistance.