The past few years has seen article after article reporting doctors’ fears associated with the Mandatory Reporting system (administrated by AHPRA).  We’ve all read about the concerns registrants face when considering the impact of seeking health care for certain types of health issues, particularly mental health concerns.  

Advocates have been pushing for all States and Territories to adopt the Western Australian model; and with good reason.  There is no evidence that WA has a higher incidence of medical practitioners causing harm/risk to the public when practicing; but doctors in WA can access health care without the same concerns as their peers in the rest of Australia.

While taking a mental break from the intense task I face in preparing for my own appeal against conditions imposed on my medical registration (as the result of having a mental health history) I sat down last night to watch “The Castle”.  

“It’s the vibe of it.”  

At some stage, late in high school, I did read the Australian Constitution; that was a while ago.  I read it again.  We don’t have a Bill of Rights in Australia (which is quite unfortunate), but we do have two clauses in our Constitution that provide some degree of ‘protection’.

Section 117 is of particular interest to me, and perhaps to others interested in changing our Mandatory Reporting laws.  

Section 117:

A subject of the Queen, resident in any State, shall not be subject in any other State to any disability or discrimination which would not be equally applicable to him if he were a subject of the Queen resident in such other state.

It’s a little wordy, like so many things in law.  Let’s break it down:

Subject of the Queen = Australian citizen and/or resident

Resident in any State = Broad/Temporary

Disability or Discrimination = A less positive circumstance/situation

The essence of Street v Queensland Bar Association was that a State cannot impose limits on professional practice qualifications on the grounds that a person is not permanently residing in that State. While it can be said that this requirement impacts equally on residents of any particular State, it has a more significant impact on those not residing in a particular State.

All Australian States and territories have Mandatory Reporting laws; WA’s being the safest for doctors and the public.  The National Law, as worded in all other States and Territories does apply equally (within each State) to residents of all States:  A Western Australian doctor seeking certain types of ‘health care’ in NSW/VIC could well expect to be subjected to the Mandatory Reporting system of that State.  The issue here isn’t whether the Law applies equally to people from any particular State, it is that residents from any State/Territory other than WA are subjected to far more significant and serious consequences than a resident of WA would be subjected to under Western Australian Law.

Section 117 of our Constitution has been discussed amongst lawyers over the years without any finite conclusion about its ability, as a clause, to allow for equal treatment between residents of different States.  Perhaps it is time for a revival of those discussions.

#WAModelNow is a Constitutional proposal.  I’ll go further to say that any State/Territory applying Mandatory Reporting Laws that are more stringent and onerous to registrants are behaving in a manner that is unconstitutional!  

It isn’t just ‘the vibe of it’; it is a Constitutional right that health practitioners across Australia be afforded the same protections as their peers receiving health care in Western Australia.