Serious Disciplinary Proceedings against Australian Health Practitioners for Sexual Misconduct

Abstract

The Health Practitioner Regulation National Law enacted in all the States and Territories currently regulates 15 different health professions in Australia. This research explores how complaints of sexual misconduct under the National Law against the five major health professions - nurses and midwives; doctors, psychologists, pharmacists, and dentists - appear, and are responded to, at the tribunal level. These cases represent the matters deemed the most serious by regulators and referred to an independent tribunal not dominated by the relevant profession, to be heard and determined in public. This research examines how decision-makers characterise the seriousness of the conduct and how they articulate and weigh factors used to determine appropriate protective orders.

Differences in outcomes across professions and across state and territory jurisdictions are explored through a qualitative analysis of the text of reasons in order to understand why such variation is occurring. Areas of divergence included: a lesser likelihood of restrictive sanction for the medical profession compared to the other health professions; varied approaches to agreed sanctions; different emphasis on individual risk rather than general deterrence, and; reduction of periods of removal of practice by reference to ‘time served’ under interim suspension.

I suggest that greater transparency and consistency could be achieved in health discipline through the nation-wide development of qualitative guidance on sanctions broadly, and on the categorisation of seriousness, and the assessment of public safety and public interest in sanction in sexual misconduct matters specifically. I further argue that the current legislative provisions and administrative guidance governing how matters are referred to the Tribunal system may require attention in order to ensure that sexual misconduct matters are being dealt with more consistently and transparently.

Keywords: Health regulation, health professionals, sexual misconduct, professional misconduct, sexual abuse, Health practitioner regulation National Law

JEL Classification: K19