Sexual misconduct: The use of chaperones to protect patients

On 11 April 2017, the Medical Board of Australia (MBA) and the Australian Health Practitioner Regulation Agency (AHPRA) released a report prepared by Professor Ron Paterson, being an independent review of the use of chaperones to protect patients in Australia. Professor Paterson concluded that the use of chaperones where sexual misconduct allegations are being investigated does not meet community expectations and does not always keep patients safe from predatory practitioners. Professor Paterson made a number of recommendations as a result of his review, including that chaperones no longer be used (except in exceptional circumstances) as an interim restriction whilst investigations are undertaken into allegations of sexual misconduct by practitioners and for the improvement of handling of sexual misconduct complaints. Both the MBA and AHPRA have accepted Professor Paterson’s recommendations.

Background

In August 2016, the MBA and AHPRA commissioned Professor Paterson to undertake a review of chaperone arrangements following media reports that a Melbourne neurologist had been permitted to continue to practise for eight months subject to a chaperoning condition despite facing criminal charges involving allegations of indecent assault on a patient. Specifically, the purpose of the review was to consider ‘whether and if so in what circumstances it is appropriate to impose a chaperone condition on the registration of a health practitioner to protect patients while allegations of sexual misconduct are investigated’ and to recommend whether changes to regulatory practice, and the Health Practitioner Regulation National Law, are needed to better protect patients and the public.

In the context of sexual misconduct allegations, chaperone conditions have been used as an interim protective measure in Australia for many years and approved by tribunals and courts. Professor Paterson has noted that in January 2017, 48 health practitioners (including 39 doctors) in Australia were subject to a chaperone condition, with only one of the chaperone restricted practitioners being female. Approximately 60% of those chaperone conditions were imposed as an immediate action restriction while allegations of sexual misconduct were investigated. The remaining 40% resulted from a disciplinary or registration decision by a tribunal or the MBA following the establishment of sexual misconduct. As Professor Paterson has noted, this is contrary to the NSW Court of Appeal’s decision in Healthcare Complaints Commission v Litchfield [1997] NSWSC 297, in which the court concluded that a doctor who cannot be trusted to see patients without the presence of a chaperone is not fit to practise medicine at all.

Professor Paterson concluded that there was significant inconsistency in immediate action decisions where allegations of sexual misconduct were considered. Furthermore, Professor Paterson recorded that chaperone conditions were sometimes imposed in situations where a practitioner was facing similar complaints from several patients or had a previous history of complaints of sexual misconduct and even in cases where criminal offences were alleged. He was unable to find any significant evidence of vexatious complaints alleging sexual misconduct by a health practitioner.

In his report, Professor Paterson reported that interim chaperone conditions often continue over an extended period. Analysis of 27 interim chaperone conditions in place in September 2016 revealed that the average period in which the conditions have been in place was 1.8 years and that 56% of the conditions had in fact been imposed more than two years prior.

Key findings

Adopting the numbering system utilised in the Terms of Reference, In his report Professor Paterson made the following key findings:

1.

(a) Chaperones are of limited effectiveness in protecting patients from sexual misconduct – Professor Paterson has concluded that the chaperone system relies on inadequately informed and trained chaperones, many of whom may be conflicted by being employed by the very practitioner they are to observe and report on. He also observed that there are many examples of practitioners breaching chaperone conditions and that predatory practitioners may not be deterred.

(b) Chaperone conditions as currently applied are inappropriate given the importance of trust and informed consent between patients and health practitioners – Professor Paterson has concluded that the current chaperone system is inadequate in that patients are not informed why a chaperone is required.

(c) Chaperone conditions are inappropriate in some situations – according to Professor Paterson, a chaperone condition is inappropriate in psychotherapeutic practice due to the highly personal and confidential nature of the therapy and the intrusive presence of a chaperone. He has also suggested that chaperone conditions are unlikely to be effective to avert risk to patients in circumstances where an intimate relationship has developed between patient and practitioner such that contact will likely occur during unchaperoned times, outside the clinical environment. Professor Paterson has opined that in general, chaperone conditions are not appropriate where the practitioner is the subject of allegations of sexual misconduct from more than one patient or where the practitioner has been subject to previous notifications or complaints of sexual misconduct or where the police have laid charges or where there is a history of deliberate non-compliance with chaperone conditions or other practice restrictions.

(d) Improvements are needed to inform and protect patients if chaperone conditions are retained – Professor Paterson considers that chaperones must be fully informed about the nature of the allegations against the practitioner, what their role is and what behaviour they should be watching for, and properly trained. In addition, patients should be adequately informed as to why a chaperone is required. However, Professor Paterson has expressed concern that additional requirements to the compliance and monitoring system would add to the complexity and expense of it.

(e) Board committees are inconsistent in assessing the need for immediate action and use of chaperone conditions – Professor Paterson has recorded that the current approach of board committees is not consistent between States and Territories throughout Australia or even within a single jurisdiction at the immediate action stage.

(f) Improvements are needed in the National Chaperone Protocol, current practice and escalation processes – Professor Paterson is of the view that a mandated chaperone should be a registered health practitioner who is not an employee of the monitoring practitioner and not patient nominated. Furthermore, he considers only an informed and trained health practitioner can be an effective watchdog. This requires provision to the chaperone of full information about the nature of the allegations made against the practitioner and for briefing and training in the role before its commencement. Professor Paterson has also concluded that chaperone conditions often remain in place for far too long for an interim measure and should be reviewed at least every six months (and earlier if there are triggers for review such as the laying of criminal charges).

2.

More restrictive regulatory measures should be used to protect patients while allegations of sexual misconduct are investigated – given his determination of the inappropriateness and limited effectiveness of chaperone conditions, Professor Paterson considers there should be greater use of gender based prohibitions or prohibitions on patient contact, and suspension, to protect patients while allegations of sexual misconduct are investigated.

3.

No change is needed to the Regulatory principles for the National Registration and Accreditation Scheme – according to Professor Paterson, clearer guidance is needed for national boards in relation to the exercise of immediate action powers, including the threshold for taking immediate action and the appropriate level of intervention. However, the regulatory principles themselves do not need amendment.

4.

Legislative reforms should be considered by Ministers to better protect patients while allegations of sexual misconduct are investigated – Professor Paterson recommends national adoption of the New South Wales test requiring a national board to take immediate action if it is in the public interest to do so and the expansion of the definition of employer in the National Law to cover all forms of practice arrangement as well as clarifying that a national board may set a review period when exercising its powers to change a condition imposed. Professor Paterson also recommends legislative reform or practice changes in information for patients and chaperones, information on the national register of practitioners, communication with notifiers and removal of the privilege against self-incrimination in the non-criminal context.

Overall conclusion

Following his extensive review, Professor Paterson considers that it is time to abandon chaperone conditions as an interim restriction given their dubious appropriateness and the evident holes in the safety net that they are intended to provide. He is firmly of the view that the use of chaperones to protect patients while allegations of sexual misconduct are investigated should be replaced by gender based prohibitions and suspensions.

Recommendations

Professor Paterson has recommended three broad areas for regulatory reform being:

1. Cessation of the use of chaperones as an interim restriction while allegations of sexual misconduct are investigated
2. Establishment of a specialist team within AHPRA working with the MBA to improve handling of sexual misconduct complaints and the timeliness of same and
3. Strengthening monitoring and providing of more detailed information to patients in the exceptional cases where chaperone conditions are in place.

The MBA and AHPRA have adopted all of Professor Paterson’s recommendations, meaning the chaperone system will be scrapped in all but exceptional circumstances (eg where the allegation of sexual misconduct involves only one patient, would not amount to a criminal offence and the practitioner in question has no relevant notification or complaint history).

Discussion

The fundamental focus of the National Law is public protection in the context of health treatment. It is especially important to protect patients from sexual advances or assault by a practitioner given the level of trust patients place in practitioners, the vulnerability of patients and the power imbalance involved.

When investigating allegations of sexual misconduct by a health practitioner, regulators must assess the need for immediate action to be taken to protect patients and the public pending completion of the investigation against the rights of the practitioner pending the outcome of that investigation. To impose chaperone conditions as an interim protective measure, which permits the practitioner continuing to work but with a condition on their registration designed to protect patients, has been commonplace in Australia and overseas.

Professor Paterson’s review has concluded that the use of chaperones as an interim measure does not meet community expectations and does not always work in terms of patient safety. Instead, he recommends a more consistent national approach to such matters, particularly focusing on gender based prohibitions or prohibitions/restrictions on patient contact combined with improvements in the handling of sexual misconduct complaints and the timeliness of same.

No reasonable person could disagree with Professor Paterson’s statement:

‘Patients, practitioners and the public deserve prompt, thorough, fair and consistent action in the interim period while the truth of sexual misconduct allegations is examined. Interim restrictions must be workable, acceptable to patients, and adequate to protect the public. Sexual advances or sexual assault by a health practitioner is a harm that society will not tolerate.’

However, the adoption of some of Professor Paterson’s recommendations will inevitably cause reputational damage to health practitioners the subject of a sexual misconduct investigation and prevent them for working while the allegations are investigated.  This may be seen as a high price for those practitioners to pay particularly given that the allegations will at that stage be unproven and may take an extended period to be established or rejected.