Vexatious notifications framework review

Summary of key findings

Improving understanding of vexatious notifications

The review found that the number of vexatious notifications made every year is likely to be low. Ahpra advised the review that it had identified 17 notifications where the Framework had been applied between 1 January 2021 and April 2022. After applying the Framework to the 17 notifications, it appears that the relevant Board decided that the notification was vexatious on 5 occasions (0.04% of notifications closed between 1 January 2021 and 30 April 2022).

The review had expected that the number of instances where the Framework had been applied would be higher than Ahpra reported. On further investigation, the review found that Ahpra has not appropriately recorded all instances where a practitioner alleged that a notification was made vexatiously. This indicates that the number of times the Framework has been applied, or should have been applied, is higher than Ahpra reported. The review therefore recommends that Ahpra should ensure allegations that a notification is vexatious are appropriately documented and managed in line with the Framework, with relevant information about the assessment of the allegations recorded and provided to decision makers for consideration.

The review was, however, satisfied that vexatious notifications are rare based on the available evidence. This suggests there is a disconnect between perceptions of the volume of vexatious notifications and true instances of vexatious notifications. The review found that issues in defining the term may be driving this disconnect. Conflicting views appear to stem from the use of the ‘experiential’ or ‘motivational’ definition of the term ‘vexatious’. Practitioners often used the ‘experiential’ definition, which is based on their belief that the notification has been disruptive and inconvenient, without having regard to the motivations of the person who made the notification. The Framework’s definition of a vexatious notification, however, reflects the ‘motivational’ definition. This definition focuses on the motivation of the person making the notification, rather than only the experience of the practitioner subjected to the notification. While the motivational definition sets a high threshold for determining a notification is vexatious, the review contends that this is reasonable and aligns with the gravity of labelling a notification vexatious.

There is clear evidence that practitioners find the notifications process distressing. This may explain why concerns about the impact of vexatious notifications, and the need to prevent them, continues to be strongly voiced by practitioners. Some practitioners appeared to feel that they had been treated as if they were ‘guilty until proven innocent’. The review’s consideration of a sample of notifications where the Framework had been applied did not, however, uphold concerns that Ahpra and the Boards are unfairly biased against practitioners.

The review found that sometimes the term ‘vexatious’ is used to describe any type of sub-optimal notification, including notifications that are lacking in substance. The review also heard from Ahpra staff that it can be challenging to handle notifications where they reasonably believe a notifier intended to harm a practitioner but there is substance to the notification. These circumstances are problematic because the notification does not satisfy the ‘vexatious’ definition but can still lead to distress and feelings of injustice for the practitioner. The review recommends that Ahpra should clearly outline the different types of notifications that commonly result in a decision to take no further action, including the criteria and approach used to assess whether a notification meets the definition of being sub-optimal rather than vexatious.

The review’s consultation revealed a lack of communication and publicly available information about the Framework’s application. Consumers and practitioners supported greater transparency about the reasons for decisions to take no further action on notifications more generally. The review suggests that Ahpra should enhance its public reporting on Board decisions to take no further action on notifications, particularly decisions that a notification is vexatious.

Better identifying vexatious notifications

With a vexatious notification, information about the notifier’s concerns, relationship to the practitioner and desired outcome from the notifications process is necessary to assess whether the notification was made with an intent to cause harm. The review found that Ahpra could do more to understand a notifier’s motivations and, in particular, their connection with the practitioner, particularly at the time of receiving the notification. The review therefore recommends that Ahpra should improve how it receives notifications to ensure it more clearly requests information about what the notifier’s concerns are, the notifier’s relationship to the practitioner and what the notifier is seeking from making a notification.

Concerns were raised with the review about Ahpra’s acceptance of anonymous and confidential notifications. It was sometimes assumed that these types of notifications increased the likelihood of vexatiousness. The review acknowledges that considering allegations of vexatiousness in relation to anonymous notifications is more challenging because the identity of the notifier cannot be determined. However, anonymous and confidential notifications offer an important way for Ahpra and the Boards to be alerted to risks to the public. There are many legitimate reasons a notifier may wish to remain anonymous, or for their identity to be withheld from the practitioner they are making a notification about. It should therefore not be assumed that anonymous or confidential notifications are vexatious as they may raise legitimate concerns requiring Ahpra and the relevant Board’s attention. The review recommends that Ahpra should provide extra guidance to staff about how to address concerns that an anonymous or confidential notifier has made a vexatious notification.

In relation to identifying indicators of vexatiousness, the review found that the Framework does not distinguish between ‘calculated conduct’ and ‘unreasonable conduct’ by a notifier. However, the indicators and management of unreasonable conduct and calculated conduct are distinct, and often fundamentally different. Unreasonable conduct is often associated with repeated and escalating complaint-lodging, which may appear obsessive. In comparison, calculated conduct relates to raising concerns in a strategic way with a specific self-serving purpose.

The review found instances of notifications being made in a calculated way in the sample of notifications it considered. Generally, calculated conduct appeared in relation to a breakdown in a professional or personal relationship between the notifier and practitioner. Most troublingly, the review found evidence that notifications had been made in domestic and family violence cases. The review also saw evidence of calculated conduct related to workplace disputes and competitive, retaliatory or politically motivated notifications. The review found that indicators related to the different types of notifications associated with calculated conduct could be further developed and improved by Ahpra. The review therefore recommends that Ahpra should update the Framework to distinguish ‘calculated conduct’ from ‘unreasonable conduct’ when considering the characteristics of a notifier. The Framework should also include more specific indicators of calculated conduct including:

• more detailed references to the types of relationship breakdowns that may lead to a vexatious notification, including matters relating to court orders or legal proceedings involving the notifier and the practitioner
• references to the types of workplace disputes that may lead to a vexatious notification, including allegations of bullying and harassment, and guidance on appropriately examining workplace-related issues
• references to making a retaliatory notification as an indicator that a notifier may have intended to harm the practitioner in making the notification.

Ahpra staff informed the review that it can be challenging to determine a notifier’s intent in making a notification. The review recommends that Ahpra should provide more guidance on how an intent to cause harm can be shown and the standard of proof required to demonstrate an intent to cause harm in making a vexatious notification.

Improving how potentially vexatious notifications are assessed

The review found that Ahpra staff have an understanding and awareness of the Framework, and largely appreciate the guidance it provides. However, the review found several barriers to using the Framework that appear to have affected its application. 

While Ahpra staff generally supported using the Framework, there was a perception that the Framework negatively affects the timeliness of progressing a notification, and that the internal approval process set out in the Framework is burdensome. The review therefore recommends that Ahpra should lower the threshold for approval to consider a ‘suspected vexatious’ notification.

The review also found that Ahpra provides little detail about how the assessment of indicators of vexatiousness should be undertaken by Ahpra staff. It is therefore not surprising that there was little information available about how this assessment had been undertaken in practice in the notifications analysed by the review. Importantly, it appears that the Framework could be better integrated into Ahpra’s risk assessment model. The review also found minimal guidance for Ahpra staff about relevant types and sources of information when assessing vexatiousness. The review recommends that Ahpra should strengthen the assessment of indicators that a notification may be vexatious and the assessment of information gathered about a ‘suspected vexatious’ notification. 

It was also unclear to the review why some notifications where the Framework was applied progressed to an investigation without Ahpra first getting a response from the practitioner who was the subject of the notification. This represented a missed opportunity for the practitioner to outline concerns that the notification was vexatious before an investigation was commenced. The review therefore suggests that Ahpra should not progress a notification to an investigation without first seeking the practitioner’s response to the issues raised (unless there are sound reasons not to do so).

Supporting improved recommendations and decision making about vexatious notifications

The review noted a reluctance or concern among Ahpra staff about calling a notification ‘vexatious’. There was sometimes a view that finalising a matter as quickly as possible was preferable to collecting more information to determine vexatiousness. There was also a view that using the label ‘vexatious’ could inflame the situation with the notifier or make it more challenging to manage the outcome of the notification. Ahpra staff also often raised the importance of ensuring notifiers feel able to raise concerns about practitioners and that they did not want action to address vexatious notifications preventing others with legitimate concerns from coming forward. However, practitioners felt strongly that it was important for Ahpra and the Boards to label a notification vexatious if it satisfies the Framework’s definition. 

From the sample of notifications considered by the review, it was not always clear whether the Board had decided that a notification was vexatious, or if it was ‘frivolous’, ‘misconceived’ or ‘lacking in substance’. The review recommends that Health Ministers should consider amending the Health Practitioner Regulation National Law (the National Law) to create a new subsection under s. 151(1) to distinguish a decision by a Board to take no further action because a notification is vexatious from other decisions to take no further action. The review also recommends that consideration should be given to whether ‘vexatious’ should be a defined term in s. 5 of the National Law.

The review found no recorded definitions of the words ‘frivolous’, ‘misconceived’ and ‘lacking in substance’ in relation to the National Law, or how these terms are applied in practice by Ahpra and the Boards. This has contributed to a lack of clarity in the difference between a vexatious notification and these other types of notifications. It was also unclear to the review how the assessment of risk is linked to making a decision that a notification is frivolous, misconceived or lacking in substance. It could therefore be argued that this terminology is not fit for purpose and does not adequately reflect the basis on which Boards are deciding to take no further action in practice. The review therefore suggests that Health Ministers could consider amending s. 151(1)(a) of the National Law to better reflect the outcomes associated with a risk assessment of notifications.

Practitioners expressed concern that vexatious notifications remain on a practitioner’s notifications history with Ahpra, which can lead to unfair outcomes such as increases in professional indemnity insurance premiums. The review found that vexatious notifications are not recorded any differently from other notifications in Ahpra’s case management system. There is no obvious flag to alert Ahpra staff that a vexatious notification should be treated differently, or not considered part of the practitioner’s notifications history. The review recommends that Ahpra and the Boards should distinguish previously received vexatious notifications from other notifications when undertaking a risk assessment of a new notification. Consideration should also be given to amending s. 151(2) of the National Law so the power to consider previous notifications as part of a pattern of conduct or practice does not extend to previous notifications that were found to be vexatious.

The review found a lack of communication from Ahpra about the Framework’s application to those involved in the notification, including the practitioner who was the subject of the notification. The review recommends that Ahpra should be more transparent about how and when it applies the Framework, where appropriate.

The review found that Ahpra’s templated reasons for deciding to take no further action on the basis that a notification is vexatious were too brief and did not reference the Framework’s application or why the notification met the threshold to be deemed vexatious. When considering the sample of notifications, the review found that the reasons provided for Board decisions generally reflected the template wording and did not provide more information about why each notification was closed. Without a clear explanation for why a decision was made to take no further action, notifiers and practitioners can be left feeling unheard, which may lead to frustration, anger and repetitive notifications. The review therefore recommends that Ahpra should update its library of reasons to ensure clear and appropriate reasons are provided for a decision that a notification is vexatious. Ahpra should also update the associated template notification outcome letters for vexatious notifications.

The review validated concern that the timeliness of managing notifications could be better. The average time taken to finalise the notifications considered by the review where the Framework had been applied was 121 calendar days. Completing notifications faster is likely to lessen the impact of the notifications process on practitioners, including if they believe the notification made about them is vexatious.

The review also noted that concerns about the vexatious nature of a notification were in some cases compounded by Ahpra’s lack of updates and communication throughout the notifications process. The review suggests there are opportunities for Ahpra to improve how it communicates with those involved in a notification where the Framework is applied. 

Determining appropriate consequences for making a vexatious notification

The review explored the possible consequences of making a vexatious notification for registered health practitioners and non-practitioners. The Framework outlines that:
•    notifiers who have made a vexatious notification do not have good-faith protections under the National Law
•    the relevant Board will act against a registered health practitioner who has made a vexatious notification about another practitioner.

The review found that Boards have undertaken own motion investigations into practitioners if they believe the practitioner has made a vexatious notification about another practitioner. However, the Boards’ processes for managing an own motion investigation in these circumstances are not well-developed. The review recommends that Ahpra and the Boards should clarify processes related to own motion investigations into practitioners who have made vexatious notifications, including by ensuring there are clear guidelines for staff when an own motion investigation is initiated.

While the Framework does not refer to it, the National Law also seeks to prevent dishonest and misleading (and therefore potentially vexatious) notifications by providing that people can be fined up to $5,000 for giving an Ahpra investigator false or misleading information or documents. Ahpra staff advised the review, however, that they were unaware of any examples of notifiers having been fined under this provision. The review recommends that Ahpra and the Boards should form a position on when they would seek to fine a person for providing false or misleading information or documents to an Ahpra investigator.

The review also found an inconsistency in the National Law. It appears to be an offence to provide false or misleading information to Ahpra if a notification is being investigated but not at other stages of the notifications process. The review therefore recommends that Health Ministers should consider amending the National Law to make it an offence to provide false or misleading information to Ahpra when making a notification and at the assessment stage of the notifications process.

The review heard from practitioners that having a notification made about them can have negative consequences, particularly in relation to their mental health. As a result, some practitioners emphasised to the review that there should be significant consequences for notifiers who make a vexatious notification. This sentiment was also sometimes reflected in submissions to the review and by Ahpra staff. While the review recognises these views, it is important that any consequences for making a vexatious notification do not inadvertently create barriers to potential notifiers with legitimate concerns from coming forward.

Strengthening guidance and training for Ahpra staff about vexatious notifications

The review found that Ahpra staff received comprehensive training and guidance about the Framework, and how it should be applied, when it was first introduced. However, little ongoing training has been provided. It is hoped that the review’s findings can assist Ahpra to determine priority areas for training because ongoing education is essential to ensuring the Framework is consistently and accurately applied. The review therefore recommends that Ahpra should deliver ongoing training to staff on applying the Framework, including any changes implemented in response to the review’s recommendations.

Addressing emerging issues linked to vexatious notifications

The review identified two emerging issues that are linked to vexatious notifications and the application of the Framework: notifications in cases involving domestic and family violence allegations and unreasonably persistent conduct. The report’s appendices detail the review’s specific findings and recommendations regarding these issues. The review suggests that Ahpra’s future work plans should seek to address these issues alongside its work to strengthen the identification and management of vexatious notifications. 

Addressing notifications in cases involving domestic and family violence allegations

The review found evidence that the notifications process is sometimes used to cause harm in domestic and family violence matters. In the review’s consideration of the 17 notifications where the Framework was applied, it found that 7 involved allegations that the notification was made in the context of domestic or family violence.

Research indicates that systems can be used to perpetuate domestic or family violence, particularly coercive control. This was of particular concern to the review because Ahpra does not have a tailored or specific process to manage notifications of this nature. The review recommends that Ahpra should improve how it manages notifications in cases involving domestic or family violence allegations. 

Addressing unreasonably persistent notifier conduct

The review found that Ahpra does not have a comprehensive policy and procedure for identifying and responding to unreasonable notifier conduct. The review also did not find a consistent approach to considering a notifier’s history as part of a notification’s risk assessment, including to determine a pattern of repetitive notifications. The review therefore recommends that Ahpra should strengthen how it identifies and manages unreasonable conduct and unreasonably persistent notifiers.

The review noted that courts, tribunals and organisations subject to federal freedom of information legislation have mechanisms to decide that a litigant or applicant is vexatious. The review recognises the potential synergies between the current arrangements that allow for the National Health Practitioner Privacy Commissioner to declare a freedom of information applicant vexatious in certain circumstances. It may be that a similar mechanism could be established to manage a notifier’s access to the notifications process due to unreasonably persistent conduct.
 

Recommendations

Improving understanding of vexatious notifications

1. Ahpra should ensure allegations that a notification is vexatious are appropriately documented and managed in line with the Framework, with relevant information about the assessment of the allegations recorded and provided to decision makers for consideration.

2. Ahpra should clearly outline, and publish information about, the different types of notifications that commonly result in a decision to take no further action, including the criteria and approach used to assess whether a notification meets the definition of being ‘sub-optimal’ rather than vexatious.

Better identifying vexatious notifications

3. Ahpra should improve how it receives notifications to ensure it more clearly requests information about the notifier’s concerns, the notifier’s relationship to the practitioner and what the notifier is seeking from making the notification.

4. Ahpra should provide extra guidance to staff about how to address concerns that an anonymous or confidential notifier has made a vexatious notification.

5. Ahpra should update the Framework to distinguish ‘calculated conduct’ from ‘unreasonable conduct’ when considering the characteristics of a notifier. The Framework should also include more specific indicators of calculated conduct, such as references to the types of relationship breakdowns and workplace disputes that may lead to a vexatious notification and references to making a retaliatory notification as an indicator that a notifier may have intended to harm the practitioner in making the notification.

6. Ahpra should provide more guidance on how a notifier’s intent to cause harm to a practitioner can be shown and the standard of proof required to demonstrate an intent to cause harm by making a vexatious notification.

Improving how potentially vexatious notifications are assessed

7. Ahpra should strengthen the assessment of indicators that a notification may be vexatious and the assessment of information gathered about a ‘suspected vexatious’ notification.

8. Ahpra should reduce the escalation points in the internal approval process for the Framework by lowering the threshold for approval to consider a ‘suspected vexatious’ notification.

Supporting improved recommendations and decision making about vexatious notifications

9. Health Ministers should consider amending the National Law to create a new subsection under s. 151(1) to distinguish a decision by a Board to take no further action because a notification is vexatious. Consideration should also be given to whether ‘vexatious’ should be a defined term in s. 5 of the National Law. 

10. Ahpra and the Boards should distinguish previously received vexatious notifications from other notifications when undertaking a risk assessment of a new notification. Consideration should be given by Health Ministers to amending s. 151(2) of the National Law so the power to consider previous notifications as part of a pattern of conduct or practice does not extend to previous notifications that were found to be vexatious.

11. Ahpra should be transparent about how and when it applies the Framework, where appropriate. Ahpra should update its library of reasons to ensure clear and appropriate reasons are provided for a decision that a notification is vexatious. Ahpra should also update the associated template notification outcome letters regarding vexatious notifications.

Determining appropriate consequences for making a vexatious notification

12. Ahpra and the Boards should form a position on when they would seek to fine a person for providing false or misleading information or documents to an Ahpra investigator.

13. Health Ministers should consider amending the National Law to make it an offence to provide false or misleading information to Ahpra when making a notification and at the assessment stage of the notifications process.

14. Ahpra and the Boards should clarify processes related to own motion investigations into practitioners who have made vexatious notifications about other practitioners, including by ensuring there are clear guidelines for staff when an own motion investigation is initiated. 

Strengthening guidance and training for Ahpra staff about vexatious notifications

15. Ahpra should deliver ongoing training to staff on applying the Framework, including any changes implemented in response to the review’s recommendations.

Appendix 1: Addressing notifications in cases involving domestic and family violence allegations

16. Ahpra should improve how it manages notifications in cases involving domestic or family violence allegations.

Appendix 2: Addressing unreasonably persistent notifier conduct

17. Ahpra should strengthen how it identifies and manages unreasonable conduct and unreasonably persistent notifiers.

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