KEY POINTS
- In 2016, Melissa reported an alleged rape to AHPRA which turned into an investigation into her fitness to study. AHPRA took no action against the alleged perpetrator but suspended Melissa from clinical studies for 12 months.
- In 2019, AHPRA unlawfully disclosed the historic conditions to Flinders University, which prevented her from completing her degree.
- The Ombudsman has now found “systemic deficits” within AHPRA, including that it holds inaccurate and out-of-date records and its processes fail to support vulnerable students.
- Significantly, the sensitive report found AHPRA is currently non-compliant with Australian Privacy Principles, which theoretically could expose the regulator to fines of $50 million if prosecuted.
- Melissa has given up on nursing but wants reform within AHPRA.
Melissa was completing a hospital placement as a nursing student in 2016 when she was allegedly raped by her more senior colleague.
She reported the nurse to the Australian Health Practitioner Regulation Agency (AHPRA) – a national body tasked with registering and disciplining health practitioners.
AHPRA took no action against the alleged perpetrator but instead opened an investigation into Melissa, in what was the start of a six-year process that ended Melissa’s nursing career and exposed “systemic deficits” within the regulator.
In December, the ombudsman responsible for overseeing AHPRA – the National Health Practitioner Ombudsman (NHPO) – delivered a sensitive final report that found AHPRA unlawfully disclosed her confidential information, held inaccurate and out-of-date records and failed to recognise her vulnerabilities.
Significantly, the ombudsman found AHPRA is currently not compliant with Australian Privacy Principles, exposing the regulator to up to $50 million in fines, and has ordered AHPRA apologise in writing to Melissa.
The damning findings come after The Age and The Sydney Morning Herald have revealed under-resourcing, bullying, systemic racism, delays and lack of transparency within AHPRA.
After weeks of reporting, federal Health Minister Mark Butler intervened on Thursday by launching a “rapid review” of previous efforts to reform AHPRA and a commitment to put the topic on the national agenda.
In response, Victorian Health Minister Mary-Anne Thomas said regulators were expected to safeguard patient safety, and she would “vigorously support” any review.
“Anything that falls short of quality care is unacceptable,” she said. “We won’t hesitate to take action to address any risk.”
Melissa, whose surname has been withheld for privacy reasons, welcomed the development but said for her, it was too late.
“They can’t give me back my nursing career,” she said.
‘Life in order’
Melissa’s childhood was not easy. She spent years in and out of foster care, dealing with an abusive mother and a drug-dealer father, who killed himself when she was a teenager.
At age 16, she was homeless when her best friend’s family took her in and changed the course of her life.
“I never thought I would be able to go to university and achieve goals,” she said. “But I had a family who helped me get my life in order.”
She found a job and eventually completed a bridging course to enrol in a Bachelor of Nursing at the University of South Australia. She already had experience working in disability support, and wanted to build a career helping others.
But that all changed in her third year during a clinical placement at a psychiatric ward in an Adelaide hospital. Her brother was critically ill in hospital at the time, when she took prescription valium and texted her senior colleague from home.
“He said, ‘Let me come check on you, sounds like you’re not in a safe space’,” she said. “I was sedated. He took advantage of me in that space. I wasn’t able to push him off.”
What Melissa alleged was rape, she said her senior colleague would later claim was consensual. She reported him to the police, the university and AHPRA – but would ultimately feel let down by all three.
While AHPRA has powers to suspend practitioners accused of sexual misconduct, it did not, and instead opened an investigation into Melissa’s fitness to study nursing.
“I reported it to AHPRA because that’s what I thought was the correct thing to do,” she said. “It ended up being a nightmare.”
After taking no action against her alleged rapist, AHPRA investigators trawled through Melissa’s medical records, which revealed a history of self-harm [two episodes at age 11 and 16, the year before her father killed himself] and a more recent diagnosis of anxiety and depression.
Then aged 28, Melissa admitted to taking prescription medication and occasionally using illicit drugs. She consented to provide a urine sample, but declined to take part in a hair test.
In the end, AHPRA banned Melissa from clinical practice for 12 months, but that was only the beginning of her struggles with the regulator.
“I felt very victim blamed,” she said. “There was no process outlined for me for what happens after that. So, I thought it was like a prison sentence, you wait 12 months and you get your registration back. But it was not.”
Three years later, Melissa sought to re-enroll in a Bachelor of Nursing at Flinders University. This triggered an automatic message to be sent from AHPRA to the university about Melissa’s historical conditions.
The ombudsman would later find this disclosure was unlawful as it breached privacy provisions in the National Law and Australian Privacy Principles.
“This situation should not be allowed to occur again. In my view, there is no need, or legal basis, for AHPRA to disclose current or historical conditions, restrictions or undertakings to education providers at this early stage,” the ombudsman’s report states.
The alert instructed the university to contact AHPRA for further information, but when the university followed these instructions, they were told no information could be provided without Melissa’s consent.
This created what the ombudsman described as a “catch-22” and “stalemate” which unfairly prevented Melissa from continuing with her studies.
Eventually, she was forced to disclose the alleged rape and her previous conditions to the university. Thereafter, she was treated differently, she said, and one staff member openly talked about the AHPRA investigation. “There’s a lot of stigma attached to what I’ve been through.”
And despite Melissa eventually receiving clearances from AHPRA and her doctors to complete all requirements of the nursing course, the university prevented her from completing clinical placements, a key part of the degree.
“At the end of the day, the university has the last say. It was a dead end,” Melissa said.
Exhausted, she gave up on university and complained to AHPRA about her treatment.
In a letter dated October 2020, the regulator acknowledged that multiple emails she sent had not been responded to, but ultimately denied responsibility for the university’s decision.
“While empathetic towards your current situation, AHPRA and the board unfortunately have no control or influence over the decisions of an educational institution,” AHPRA wrote.
https://www.smh.com.au/interactive/hub/media/tearout-excerpt/13637/ComplaintAHPRA.pdf
Melissa then appealed to the ombudsman.
And now, more than two years later, the ombudsman has handed down her findings. While the investigation did not extend to AHPRA’s initial evaluation of the alleged rape, it found the disclosure of her historical conditions to Flinders University was unlawful and ordered AHPRA to issue a written apology.
The ombudsman found the information AHPRA held about Melissa was “inaccurate, incomplete and out-of-date” and its processes failed to take into account the “particularly vulnerable” position of students under investigation, who unlike employed health practitioners, are not supported by lawyers and powerful insurance companies.
It identified “systemic deficits” in AHPRA’s systems and made a number of recommendations, including improving messaging and support services for students under investigation.
In a statement issued on Friday, Ombudsman Richelle McCausland said she preferred to work collaboratively with AHPRA to ensure compliance, although she has powers to take court action to enforce penalties, which can reach up to $50 million for breaches under new privacy laws.
McCausland said AHPRA had been responsive to suggestions for improvement in the past, but there are some areas where the ombudsman has raised concerns over a number of years, including delays and inadequate communication during its investigations. She said AHPRA’s processes for dealing with students “are not well developed”.
“It is important that AHPRA focuses on implementing appropriate and quality processes to ensure personal information on the student register is accurate and appropriately protected from inappropriate disclosure,” she said. “My office … will keep AHPRA accountable for complying with the Privacy Act.”
A spokesman for AHPRA said it could not comment on individual matters but that the regulator would “carefully consider” recommendations from the ombudsman, “and act on these both in terms of the individual complainant involved and any wider changes that may be needed to improve procedures in the future”.
For Melissa, it has been a devastating experience that she hopes no one else will endure. While she feels somewhat vindicated by the ombudsman’s findings, she said there was no sense of justice. She is yet to receive a formal apology from AHPRA.
”I can’t go back to nursing now. I physically cannot do it. I’d love to, but at the same time I’ve experienced such a horrible side of the regulator and the education providers and it’s just a hot mess.”
Melissa believes the system needs to be overhauled, with greater funding, more specialised investigators and better processes to protect people who are vulnerable.
“The way AHPRA is set up disadvantages people who don’t have money to spend on lawyers and representation,” she said. “I don’t think that’s very equitable.”