Mandatory notification has been in place for three years now, and, if we look beyond the encouraging rhetoric about improving patient safety, the scheme has kicked up some surprises, including last year's 40 per cent surge nationally in the number of reports made, which, the Australian Health Practitioner Regulation Authority (AHPRA) has, so far, been unable to explain.

While the increase might encourage belief in the scheme fulfilling its goals of ensuring patient safety, we should aslo bear in mind that the rise also increases the chances that health practitioners, who take the serious step of making a report, may face legal action when they do so. If we drill down into the 40 per cent increase, we find that the most significant contribution comes from Queensland where the number of reports has almost tripled, rising from 85 to 220.The increase is even more troubling because health practitioners making mandatory reports about colleagues are not absolutely protected from defamation. Put simply, doctors reporting colleagues, and members of the public reporting health practitioners, can be sued for defamation.

Reports – everyone should now be aware – must be made if a practitioner knows that another practitioner has practiced while intoxicated, engaged in sexual misconduct, placed the public at risk because of an impairment or departed from professional standards. A report must be made if a practitioner holds a reasonable belief that offending behaviour has occurred, beyond mere suspicion. A failure to make a report may constitute Unsatisfactory Professional Conduct.

How has the threat of defamation become an issue for mandatory reporting and just how much of a risk is it?

In April 2011, the full court of appeal, in a case involving two NSW doctors, made it clear that protection given to health practitioners making complaints under mandatory reporting provisions is only a qualified protection from claims for defamation.

The litigation began when one doctor wrote to the Medical Board of NSW as it then was, in a manner that could be characterized as similar (as it occurred before mandatory reporting had begun) to a complaint made as a mandatory report. The complaint concerned another doctor who then brought proceedings against the complaining doctor alleging, amongst other things, defamation and injurious falsehood.

The doctor who penned the complaint argued his letter was protected by an absolute privilege, and, in the first trial, the judge agreed and dismissed the claim for defamation. However, that decision was overturned later on appeal. In its decision, the full court of appeal did allow for the defense of absolute privilege, but this was allowed only for organizations and others handling a complaint made by a health professional, or a member of the public, and not, as it is now clear, for the person making the complaint.  The matter has been remitted to the NSW District Court for further hearing on whether a qualified privilege can be made out among other things.

The decision is a worrying one for AHPRA and anyone who takes comfort in the increase in the number of mandatory reports because of a possible increase in civil litigation that could follow and because health practitioners in the future may choose not to report for fear of such litigation especially given that some Medical Indemnity policies may exclude claims for defamation.

It is important to remember that, if complaints and reports are made in good faith and without malice, there are good – but not absolute – legal defences available.