Statutory offences - AHPRA Annual Report 2015/16

AHPRA Annual Report 2015/16

Statutory offences

Breaches of the National Law can put individuals and the community at risk. These offences may be committed by registered health practitioners, unregistered individuals or companies and are covered under Part 7 of the National Law.

The National Law sets out the following types of statutory offences:

Performance snapshot

Managing offence complaints

Our focus is on resolving issues quickly and efficiently. In the first instance, depending on the level of potential risk posed by the alleged breach, we send letters to the practitioner outlining our concerns and how they can be rectified. Most matters are resolved through this process, without the need for further regulatory action.

In some circumstances, AHPRA has the power to apply to the Magistrates’ Court for a warrant to search premises and seize evidence. A Magistrate may grant an application for a search warrant when there is evidence to support the belief that an offence under the National Law is being committed at a specific location.

Offences under the National Law are ‘summary offences’ and are prosecuted in the Magistrates’ Court (or equivalent) of the relevant state or territory. All offences under the National Law carry penalties or fines that may be imposed by a court on a finding of guilt.

Protected titles

The National Law restricts the use of protected titles. This means that it is unlawful for someone to knowingly or recklessly take or use a title to make someone believe they are registered in one of the health professions listed in the National Law, when they are not registered. It is unlawful to use a specialist title, when the person does not have specialist registration. It is also unlawful for someone to lead another person to believe that a third person is registered in a health profession listed in the National Law.

A breach of the protected titles provisions in the National Law is an offence and carries a maximum fine of $60,000 for a body corporate or $30,000 for an individual, per offence.

Restricted acts

The National Law restricts certain practices:

A breach of the restricted act provisions in the National Law is an offence and carries a maximum fine of $60,000 for a body corporate or $30,000 for an individual, per offence.

Holding out – claiming to be registered when not

It is unlawful to knowingly or recklessly claim to be a registered health practitioner under the National Law. This can include using a title, name, initial, symbol, word or description that could be reasonably understood to indicate that an individual is a health practitioner or is qualified to practise in a health profession. The National Law also states that a person must not claim that another individual is a registered health practitioner.

When deciding whether a matter is suitable A breach of the holding out provisions in the for prosecution, we consider a number of factors, National Law is an offence and carries a maximum including whether the prosecution is in the fine of $60,000 for a body corporate or $30,000 for public interest. an individual, per offence.

Advertising

Under the National Law, a regulated health service or a business providing a regulated health service must not advertise in a way that:

National Boards have guidelines that interpret this section of the National Law for each profession. These are available on each board’s website in an accessible format. General information about advertising is available in a fact sheet.

A breach of the advertising requirements in the National Law is an offence and carries a maximum fine of $10,000 for a body corporate or $5,000 for an individual, per offence.

Statutory offences received/closed in 2015/16

AHPRA received 1,348 offence complaints during 2015/16, which is 166% higher than last year. See Table SO1. This significant increase was largely due to a series of complaints by a number of external organisations about alleged advertising breaches.

Of the offence complaints received:

All jurisdictions recorded increases in the number of offence complaints received, with NSW, Victoria and Queensland accounting for 64.6% of all statutory offence complaints received in 2015/16.

Concerns about advertising of health services accounted for over 75% of all offence complaints received this year. Large volumes of advertising complaints were lodged with AHPRA in relation to:

There were no advertising complaints received for Aboriginal and Torres Strait Islander health practice, medical radiation practice or occupational therapy services. The remaining professions accounted for the other 13.6% of advertising complaints received.

This year, 600 offence complaints were considered and closed, an increase of 15.8% on the amount of closures achieved last year. This includes offence complaints about registered practitioners that were referred and managed under Part 8 of the National Law.

Noting the significant increase in the volume of complaints received nationally, there were 1,330 open statutory offence complaints still under review by AHPRA as at 30 June 2016.

Table SO1: Offences received and closed by type of offence and profession1
Profession Title protections (s.113 - 120) Received Title protections (s.113 - 120) Closed Practice protections (s.121 - 123) Received Practice protections (s.121 - 123) Closed Advertising breach (s.133) Received Advertising breach (s.133) Closed Directing or inciting unprofessional conduct/professional misconduct (s.136) Received Directing or inciting unprofessional conduct/professional misconduct (s.136) Closed Other offence Received Other offence Closed Total 2015/16 Received Total 2015/16 Closed Total 2014/15Received Total 2014/15 Closed
Aboriginal and Torres Strait Islander Health Practitioner                     0 0 0 0
Chinese Medicine Practitioner 12 5 1 2 13 5 0 0 0 0 26 12 16 11
Chiropractor 9 9 2 4 580 54 9 1 1 0 601 68 63 112
Dental Practitioner 27 15 4 3 162 136 0 2 3 1 196 157 109 114
Medical Practitioner 60 47 4 2 133 76 1 0 4 3 202 128 103 81
Medical Radiation Practitioner 8 6 0 0 0 1 0 0 0 0 8 7 6 4
Midwife 30 3 0 1 3 2 0 0 0 0 33 6 6 6
Nurse 43 28 1 1 8 10 0 0 2 1 54 40 32 37
Occupational Therapist 6 4 0 0 0 1 0 0 0 0 6 5 5 6
Optometrist 4 4 0 0 4 4 0 1 1 0 9 9 3 9
Osteopath 5 2 0 0 7 23 0 0 0 0 12 25 33 9
Pharmacist 4 5 0 0 6 6 2 2 1 0 13 13 9 12
Physiotherapist 19 16 1 0 44 24 0 0 2 0 66 40 31 38
Podiatrist and Podiatric Surgeon 6 5 0 0 20 12 0 0 0 0 26 17 10 17
Psychologist 53 43 1 1 27 18 0 0 2 2 83 64 69 58
Unknown2 2 2 1 1 6 2 0 0 4 4 13 9 11 4
Total 2015/16 288 194 15 15 1,013 374 12 6 20 11 1,348 600    
Total 2014/15 171 188 17 9 300 312 7 2 11 7     506 518

Notes:

  1. This table includes all offences from sections 113-136 of the National Law, not only offences about advertising, title and practice protection.
  2. AHPRA also receives offence complaints about unregistered persons.

Prosecutions under the National Law in 2015/16

AHPRA finalised nine proceedings in the Magistrates’ Court for offences under the National Law across a number of jurisdictions. Of the prosecution outcomes:

A further eight prosecutions were started and are ongoing before the courts as at 30 June 2016. Further information about those matters is outlined in tables SO2 and SO3.

Some prosecutions started in 2014/15 were concluded after the financial year and have been reported here for completeness.

News about AHPRA’s prosecutions is available on our News page.

Completed prosecutions

Table SO2: Completed prosecutions as at 30 June 2016
Defendant Date of decision Jurisdiction Relevant Board Relevant section of National Law Type of offence Outcome
Muhammet Velipasaoglu 13-Aug-15 Victoria Dental Board of Australia s113
s116
s121
Drugs & Poisons offences
Restriction on use of protected title
Claims by persons to be registered as a practitioner
Restricted dental acts Drugs & Poisons offences
Conviction
Practitioner 21-Aug-15 Western Australia Pharmacy Board of Australia s116 Claims by persons to be registered as a practitioner Spent conviction
Nicolas Crawford 28-Aug-15 Western Australia Nursing and Midwifery Board of Australia s113
s116
Restriction on use of protected title
Claims by persons to be registered as a practitioner
Conviction
Anthony Cashman 28-Aug-15 Western Australia Optometry Board of Australia s116
s122
Claims by persons to be registered as a practitioner
Restriction on prescription of optical appliances
Conviction
Practitioner 2-Feb-16 Victoria Nursing and Midwifery Board of Australia s113
s116
Restriction on use of protected title
Claims by persons to be registered as a practitioner
Non-conviction
Practitioner May-16 Victoria Medical Board of Australia s116
s3bB(2)
Claims by persons to be registered as a practitioner Non-conviction
CDC Clinics Pty Ltd May-16 Victoria Medical Board of Australia s116 (2) Claims by persons to be registered as a practitioner Conviction
Jennifer Reed 7-Jun-16 South Australia Nursing and Midwifery Board of Australia s113
s116
Restriction on use of protected title
Claims by persons to be registered as a practitioner
Conviction
Pierre Allauch 9-Jun-16 South Australia Psychology Board of Australia s113 Restriction on use of protected title Conviction

Current prosecutions

Table SO3: Current prosecutions as at 30 June 2016
Jurisdiction Relevant Board Relevant section of National Law Type of offence
Victoria and Queensland Medical Board of Australia s115
s116
s118
Restriction on use of specialist titles
Claims by persons to be registered as a practitioner
Claims by persons as to specialist registration
Queensland Nursing and Midwifery Board of Australia s113
s116
Restriction on use of protected titles
Claims by persons to be registered as a practitioner
Western Australia Pharmacy Board of Australia s113
s116
Restriction on use of protected titles
Claims by persons to be registered as a practitioner
South Australia Psychology Board of Australia
Medical Board of Australia
s116
s118
s133
Claims by persons to be registered as a practitioner
Claims by persons as to specialist registration
Advertising
Victoria Psychology Board of Australia s113
s116
Restriction on use of protected titles
Claims by persons to be registered as a practitioner
Victoria Dental Board of Australia s116
s121
Claims by persons to be registered as a practitioner
Restricted dental acts
New South Wales Occupational Therapy Board of Australia s113
s116
Restriction on use of protected titles
Claims by persons to be registered as a practitioner
Western Australia Chiropractic Board of Australia s113
s116
s123
Restriction on use of protected titles
Claims by persons to be registered as a practitioner
Restriction on spinal manipulation