Fuelled by concerns over the ability of existing regulatory frameworks to adequately protect public safety and ensure high standards of care, health worker regulation is increasingly coming under scrutiny in Australia.

Most recently, this has placed aged care and disability support workers front and centre of regulatory discussion, with the 2021 and 2023 Aged Care and Disability Royal Commissions, as well as the NDIS Review, recommending mandatory registration.

The question of ‘how best to be regulated’ is one that continually arises, with audiologists and exercise and sports science practitioners expressing a desire in recent years to be regulated at the national level through the National Registration and Accreditation Scheme, under Ahpra and the national boards.

It’s an opportune time to drill down on how different types of regulation work, and who better to ask than HealthWork International Senior Policy Advisor Dr Anne-Louise Carlton, who has been closely involved with health practitioner regulation and policy for the last 30 years, co-designing regulatory reforms within Australia as well as internationally.

She played a pivotal role in establishing the National Registration and Accreditation Scheme, under which the Australian Health Practitioner Regulation Agency (Ahpra) and the 15 National Boards that govern different health professions operate.

Recently, Anne-Louise was part of a multi-national research team that carried out an extensive review of the global literature on health practitioner regulation, commissioned by the World Health Organization (WHO).

We cover a lot of ground in this chat: are there “unregulated” professions?; is registration under the National Registration and Accreditation Scheme a silver bullet?; just how difficult is it to put together a code of conduct for a specific profession? We talk about the pros and cons of self-regulation, current innovations, and what the future holds.

Are there different types of regulatory structures for allied health professions?

One of the things that we did in the WHO-commissioned review of the global literature on health practitioner regulation was we published a typology for classifying occupational regulation, with four main types.

There’s what we call voluntary certification—which is your typical professional association—where groups of practitioners band together, they form an association, they set membership criteria and a code of conduct, they accredit education programs and qualifications for the purposes of membership, and they deal with complaints about members. Members agree to abide by a certain set of standards, and they agree to do continuing professional development each year—that is a voluntary certification scheme.

Then there are co-regulation schemes, where government enters into a partnership with a professional association and piggybacks on the work that the professional association does to assure the qualifications, competence and probity of its members. So, for example, Medicare recognises the regulation role of Speech Pathology Australia, Dietitians Australia, the Australian Association of Social Workers—all of those bodies certify their practitioners for the purposes of the government granting provider rebate status under Medicare.

Then the third type of occupational regulation is negative licensing, and we found these types of schemes only in two countries, in the State of Minnesota in the US and in Australia in five states (NSW, SA, Qld, Victoria and WA and hopefully soon to be up and running in all states and territories). Under a negative licensing scheme, anybody who provides a health service is bound by a code of conduct that is made by regulation. These codes set minimum standards of practice, and if a person who’s providing a health service breaches those minimum standards and there is a complaint about them, the responsible state health complaints commissioner or ombudsman can investigate that complaint and they can issue a prohibition order if necessary to protect the public.

The effect of a prohibition order can be to remove that person from practice altogether if necessary, or to attach conditions to their practice. Breach of a prohibition order is punishable by a fine or up to two years in prison. So it’s a pretty powerful suite of tools that complaints commissioners have available to remove people from the health workforce if there’s an ongoing risk they may exploit or abuse their patients or clients.

The fourth type of occupational regulation is statutory registration or licensing, which is your National Registration and Accreditation Scheme, which encompasses sixteen regulated health professions in Australia.

Above: Anne-Louise was part of a multi-national research team that carried out an extensive review of the global literature on health practitioner regulation, commissioned by WHO Geneva.

Are there “unregulated” professions? What’s the process there?

We have the registered health professions—sixteen of those under the National Registration and Accreditation Scheme—and then you have all the others, who are sometimes called “unregulated”. It’s not true that they’re unregulated, they’re actually regulated in a whole range of different ways, some through statute and some through voluntary certification because they choose to join a professional association; I would call them “non-registered”.

Members of a profession that is not a regulated profession under the National Registration and Accreditation Scheme under the jurisdiction of Ahpra and the national boards are still regulated—if they provide a health service and then they are regulated by the negative licensing schemes that apply in five states that I described before. They are also bound by a range of other laws: the criminal law, the laws of torts and contracts, medicines laws, public health laws etc.

So members of these professions are not unregulated—they’re non-registered, but they’re still regulated in various ways.

There is some debate about the pros and cons of self-regulation (what you have called voluntary certification). It seems that some professions feel recognition through statutory registration provides greater benefits to the profession than self or co-regulation. What’s your view on that?

Well, there are benefits that flow to members of professions that are regulated under the National Registration and Accreditation Scheme, but that’s not the purpose of that scheme. The purpose of that scheme is to protect the public, and there are objects and principles in the Act—the National Law—that set out what it’s designed to do.

So it’s not about benefiting the profession, it’s about benefiting the community or the public. Governments have criteria that they apply to decide whether they should register and regulate via statute a new profession. Those criteria are about risk to the public—what’s the nature of the problem that they’re trying to fix, and what’s the range of feasible options? If one of the options is statutory registration, is it the option that has the greatest what we call ‘net public benefit’? That is, the benefits outweigh the costs and there’s no other way of achieving those benefits than to regulate.

There’s a whole regulatory management system that governments have put in place to help make those decisions about which professions should be included in the National Registration and Accreditation Scheme and which ones should be regulated through other means, like negative licensing, the code of conduct and the Health Complaints Commissioners.  To go to government and say, ‘well, we think we should be regulated because it’s for the benefit of the profession’, they’re not going to get much traction if they go with that sort of line.

Governments are interested in whether it’s good for the community, good for the health system, and going to achieve the objectives around improving the quality and safety of the health workforce to deliver reasonable quality health services, to get the best patient outcomes. That’s what it’s about.

Are there any disadvantages to self or co-regulation?

Self-regulation, for those who are sitting in the hot seat in a professional association trying to implement it, it’s certainly challenging. One of the things that we did with our report for the WHO is that we compared these different models of occupational regulation against a set of key characteristics, such as: does it create barriers to entry, yes or no; does it give powers to receive and investigate complaints; does it give powers to remove somebody who’s unfit from the workforce?

We compared all the schemes to show which ones can do what. It’s certainly challenging for people who are sitting around the table in a professional association, trying to set standards for the profession and trying to deal with practitioners who do the wrong thing, and they often feel very vulnerable in doing that. They’re often saying to government, ‘look, we can regulate our members, but membership is voluntary, and so unless someone joins up and agrees to subject themselves to the code of ethics and the requirements of the association, we can’t do anything if something goes wrong’. That’s what they say, and that’s true. Even if a practitioner is a member and there’s a complaint and they’re investigated by the professional association, they can just decide to let their membership lapse or withdraw their membership, and continue doing whatever it is that they’ve been doing, beyond the jurisdiction of the self-regulation scheme. We have examples of that in Australia.

Co-regulation, because it’s got some government recognition and incentives behind it, does encourage people to sign up to the professional association standards and codes of conduct, and it increases the tools that a professional association has at its disposal to regulate the profession. But there are always those who decide not to join and decide to operate outside those schemes, and that’s where negative licensing comes in. So it’s this safety net—if there’s somebody who really presents an ongoing risk to public health and safety, governments have the regulatory tools, at least in five jurisdictions now in Australia, to remove that person from the workforce if they’re so risky and dangerous that they just shouldn’t be practicing.

That includes people who are exploiting their patients financially, or they assault a patient, or they’re selling unproven remedies at an exorbitant price using hard sell tactics… All of those things are captured by the state codes of conduct and can then lead to a practitioner being removed from the health workforce altogether. They can’t provide health services and that’s a good thing, and we are leading the world in showing how this type of regulation can work. No other jurisdiction apart from Minnesota has those sorts of controls, and it’s gratifying to see how much work those schemes are doing around the country. There are over a hundred of prohibition orders that have been issued around the country, removing many crooked, shonky people from the workforce because they just shouldn’t be there, or limiting their practice if necessary.

There was a national policy process which I led to develop the policy and to develop the code of conduct, along with a team of people within the Victorian Department of Health. It’s been implemented in five jurisdictions. We framed national policy and developed the National Code of Conduct (based on work done originally in NSW), including a definition of what is a ‘health service’.  Most states have now applied the agreement all Health Ministers signed up to in 2015. However, Tasmania, Northern Territory and ACT are yet to implement this nationally agreed policy.

So even if a practitioner doesn’t join a professional association, doesn’t see themselves as a member of a particular profession, have invented their own unique set of treatments and medicines, if what they do fits the definition of a health service contained in the relevant state law, then they’re covered by the code of conduct, whether they know about it or not. It’s a very powerful set of powers.

How difficult is it to put together a code of conduct or a code of ethics for a specific profession, particularly if you’re not part of that profession?

The work that I did with HealthWork Solutions is relevant here. We worked with the Allied Health Assistants’ National Association to develop their first code of conduct. There are always things that are unique to particular professions, and there are things that are common across professions. When you’re framing a new code of conduct, there’s more that the professions and occupations have in common than not.

Having said that, you have to have people with the expertise, and the on the ground knowledge to test what you’re developing. If they say no, that’s not right, then you’ve got to listen to them, because they’re the ones who are doing the day-to-day work and they understand what that’s like. We always have to work with people who have deep knowledge and skills in the profession that they’re working in.

What are some of the innovations that are taking place in the health workforce regulation environment now?

In our review of the global literature on health practitioner regulation, we found innovations in a couple of areas. First, in the way regulators are being restructured to make them more effective. We’ve got some good data now about the economies of scale that you need to adequately resource a modern health practitioner regulator. We’re seeing governance changes–more umbrella licensing laws rather than profession-specific siloed schemes—we no longer have separate medical practice acts, nurses acts or pharmacists acts etc.

It’s innovative to the extent that these schemes cover multiple professions now, because they’ve got more in common than differences and they need a common approach. Australia’s scheme is also innovative in that it overcomes some of the challenges of federation.We’ve used an adoption of laws mechanism where the Queensland Parliament has legislated, passing the principal Act with all the substantive provisions and then the other states and territories have passed legislation to adopt and apply the Queensland Act as an Act of their state. So it’s a national scheme set up under state and territory legislation.

That’s pretty innovative in how far we’ve managed to go using that mechanism. It’s got its challenges, but it means that all the state, territory and Commonwealth Health Ministers have to sit around the table together and nut out national policies jointly.

Would you see predictive risk management as innovative?

Very much so. Because these larger multi-profession regulators have got more capacity, with a bigger financial base and more resources, they’re starting to use the tools of data analytics and risk-based regulation in their role to protect the public.

They’re mining their datasets, particularly their complaints and disciplinary data, to identify hotspots of risk and then design strategies to address those risks. Ahpra found out a few years ago that the vast majority of the complaints against registered medical practitioners—these are figures off the top of my head—were about 5% of medical practitioners, who were responsible for 95% of complaints. In other words, they were repeat offenders.

Ahpra and the Medical Board of Australia have designed strategies to identify which practitioners are most at risk of a complaint about their conduct, their performance, or ill health, and then targeting things like continuing professional development, auditing of practice, and performance assessment or health assessment to identify and deal with those practitioners earlier. So that’s an example of risk-based regulation and using data analytics to really home in on risky practice . That way they don’t have to put onerous responsibilities on the entire workforce, they just identify which people are at highest risk, and design a strategy to address those risks.

What’s your perspective on the future of health workforce regulation?

Regulation is under scrutiny. I’ve been working in regulation for over 30 years, and when I first started working, it was about reducing regulatory burden and national competition policy, and repealing laws that were not required.

I think we’ve moved through that and we’re now into what is often called “better regulation”. So we’re not now talking about deregulating, we’re talking about doing regulation better, and that means having good regulatory management systems that regularly review how well a particular regulation is working. I think there’s more of a spotlight on agencies like Ahpra and the national boards. In the past we had a very distributed or decentralised system of regulation where we had 38 separate organisations and about 96 different registration boards across the country.

They were all abolished when the National Registration & Accreditation Scheme was set up. Under these previous highly decentralised governance arrangements, when there was a problem or an issue in a state or territory with a particular profession, it was quite contained and isolated, whereas now, if there’s a problem with a particular practitioner in a particular state or territory, it’s the one organisation who’s in the spotlight and that’s Ahpra. Often the national board that’s responsible for making the statutory decisions, like the medical board or the nursing and midwifery board is not even mentioned —it’s always ‘Ahpra’ in the firing line, and so it can be tough for the regulators. They’re always in the spotlight because there’s always a practitioner somewhere who’s done the wrong thing – that certainly hasn’t changed

I think the regulators are getting better at picking up when things go wrong for an individual practitioner that suggest clinical governance failures; there were multiple failures in multiple different systems of regulation. We talk a lot about the importance of system linkages: making sure that you’ve got regulators talking to each other, sharing information and with protocols governing who does what and when so that things don’t slip through the cracks. Governments on the one hand don’t want to register any more professions, because its licensing schemes are expensive and resource-intensive, and they’ve got to be convinced that it’s really necessary; we had a really tough time getting registration of paramedics across the line. (I was involved in that.)

On the other hand, governments really need to have the levers to control the health system, and registering and regulating a profession is one of those important levers. For instance, in relation to this Scope of Practice Review that the Commonwealth has initiated as a result of the Medicare Review, if there are professions that have aspirations to incorporate the prescribing of restricted medicines into their practice, and they are currently a non-registered health profession, I can’t see any way that government can support that scope of practice change without registering that profession.

Governments need to have the quality assurance tools to make sure that prescribing and use of medicines is safe and high quality. The Scope of Practice Review has opened up the debate about which professions should be registered, and so I can only see more of that debate happening.

Follow Anne-Louise on Linkedin, or view her bio. AHP Workforce provides allied health workforce planning, strategy and consulting for employers, managers and stakeholders. Contact us today to learn more about our service offerings.