The difference is one of seriousness, and it decides who hears the matter and what can happen to your registration. Under the National Law, unprofessional conduct is conduct "of a lesser standard than that which might reasonably be expected" of you by the public or your professional peers. Professional misconduct is conduct "substantially below the standard reasonably expected", or conduct inconsistent with being a fit and proper person to hold registration. Unsatisfactory professional conduct is the term used in New South Wales, where the National Law has its own definitions of conduct; the Health Professional Councils Authority describes it as a conduct breach less serious than professional misconduct. Only a tribunal can find professional misconduct, and a tribunal can suspend or cancel your registration. An allegation is not a finding: contact your indemnity insurer before you respond.
If a concern has been raised about your practice, Dealing with a Complaint or Investigation Professionally covers how to respond to a notification, what Ahpra and your Board look for in your response, and how to show insight and remediation. It is A$200 (A$140 with Bulk Buy 10) for 2 CPD hours, self-paced, with a dated certificate on completion.
For how a notification moves from assessment to a decision, read the Ahpra investigation process explained.
The terms side by side
| Term | Where it is used | What it means | Who can make the finding |
|---|---|---|---|
| Unprofessional conduct | All states and territories except NSW | Professional conduct of a lesser standard than might reasonably be expected by the public or your professional peers | A panel or a tribunal |
| Unsatisfactory professional performance | All states and territories except NSW (NSW has its own performance assessment process) | The knowledge, skill or judgment you have, or the care you exercise, is below the standard reasonably expected | A panel or a tribunal |
| Unsatisfactory professional conduct | New South Wales | A conduct breach less serious than professional misconduct | A Professional Standards Committee (nurses, midwives and medical practitioners) or the NSW Civil and Administrative Tribunal (NCAT) |
| Professional misconduct | All states and territories | Outside NSW: conduct substantially below the standard reasonably expected, or inconsistent with being a fit and proper person. NSW has its own definition | A tribunal (in NSW, NCAT) |
Unprofessional conduct: what the National Law lists
Section 5 of the National Law gives examples of unprofessional conduct. The list is not complete, but it shows the kind of conduct the term covers:
- a breach of the National Law;
- a breach of a condition on your registration or an undertaking you gave;
- a conviction for an offence that may affect your suitability to continue to practise;
- providing a person with health services that are excessive, unnecessary or otherwise not reasonably required;
- influencing, or trying to influence, another practitioner in a way that may compromise patient care;
- accepting a benefit as inducement, consideration or reward for referring a person or recommending a service;
- offering or giving a benefit in return for a referral or a recommendation;
- referring a person to, or recommending, another health service provider, health service or health product when you have a pecuniary interest in giving that referral or recommendation, unless you disclose the nature of that interest.
Professional misconduct: three ways to reach it
Under section 5, professional misconduct includes:
- unprofessional conduct that is substantially below the standard reasonably expected of a practitioner of your training or experience;
- more than one instance of unprofessional conduct that, considered together, amounts to conduct substantially below that standard;
- conduct, inside or outside your practice, that is inconsistent with you being a fit and proper person to hold registration.
The second route matters: several smaller matters, each of which might be unprofessional conduct alone, can together amount to professional misconduct.
Who decides outside New South Wales
Your National Board decides how a matter proceeds after Ahpra has assessed or investigated it.
- A performance and professional standards panel can find unprofessional conduct or unsatisfactory professional performance. It can impose conditions on your registration, caution you or reprimand you. Panel hearings are not open to the public. If it forms the view that the matter may be professional misconduct, the panel must stop hearing it, and the Board must refer it to a tribunal.
- A responsible tribunal hears matters the Board must refer when it reasonably believes you have behaved in a way that constitutes professional misconduct. A tribunal can caution or reprimand you, impose conditions, order you to pay a fine of up to $30,000 to the National Board, suspend your registration, or cancel it and disqualify you from applying again for a period. Only a court or tribunal can cancel registration.
The responsible tribunals are ACAT (ACT), NTCAT (Northern Territory), QCAT (Queensland), SACAT (South Australia), TASCAT (Tasmania), VCAT (Victoria) and the State Administrative Tribunal (Western Australia); in New South Wales it is NCAT. Our guide on the tribunal disciplinary process explains what happens at a hearing, and Ahpra investigation outcomes explains each outcome.
Who decides in New South Wales
In New South Wales, the Health Professional Councils and the Health Care Complaints Commission agree on who will manage each complaint. The terms are different, and so are the bodies:
- A Professional Standards Committee hears less serious matters for nursing, midwifery and medicine. It can reprimand a practitioner or impose conditions, but it cannot suspend or cancel registration.
- NCAT hears serious professional disciplinary cases about health practitioners. Only NCAT can cancel or suspend a practitioner's registration after a disciplinary hearing.
If your letter comes from a Health Professional Council or the Health Care Complaints Commission, the steps in your notice apply, not Ahpra's.
What to do if you face an allegation
- Call your indemnity insurer, medical defence organisation or union before you respond. An allegation of professional misconduct is a matter for legal advice.
- Keep every record exactly as it is. Do not change existing clinical notes, and speak to your insurer before adding anything to a record.
- Check that you are meeting any condition or undertaking. A breach of one is itself unprofessional conduct and can add to the matter. Our guide on conditions on your Ahpra registration explains how to meet them.
- Respond to the concern, not only the label. Ahpra's assessment looks at what has changed since the concern was raised and at your responses, reflections and actions.
- Start remediation now. Completed remediation and a written reflection show the Board, panel or tribunal what you have understood and changed. Our guides on insight and remediation and writing a reflection for Ahpra explain how.
The courses that fit are Dealing with a Complaint or Investigation Professionally, Insight and Reflection for Fitness to Practise, and the course on the subject of the allegation. Our guide on choosing a remediation course explains what to look for.
Sources and further reading
- Health Practitioner Regulation National Law, section 5 (definitions)
- Ahpra: Panel hearings
- Ahpra: Tribunal hearings
- HPCA (NSW): Public hearings
- HPCA (NSW): Possible outcomes
- Office of the Health Ombudsman (Qld): Retaining serious matters policy
Frequently asked questions
Is unsatisfactory professional conduct the same as unprofessional conduct?
They have a similar role, but they are defined differently. Unprofessional conduct is the National Law term used outside New South Wales. Unsatisfactory professional conduct is the New South Wales term, which the Health Professional Councils Authority describes as a conduct breach less serious than professional misconduct.
Can a panel find professional misconduct?
No. A performance and professional standards panel can find unprofessional conduct or unsatisfactory professional performance. If it forms the view that a matter may be professional misconduct, it must stop hearing it, and the Board must refer the matter to a tribunal.
Can several minor matters add up to professional misconduct?
Yes. Under section 5 of the National Law, more than one instance of unprofessional conduct that, considered together, amounts to conduct substantially below the standard reasonably expected is professional misconduct.
What can a tribunal do if it finds professional misconduct?
It can caution or reprimand you, impose conditions, order a fine of up to $30,000 payable to the National Board, suspend your registration, or cancel it and disqualify you from applying again for a period.
Is an allegation of professional misconduct a finding against me?
No. An allegation is a concern to be assessed on the evidence, and only a tribunal can find professional misconduct. Contact your indemnity insurer before you respond, and begin remediation so that your response can show what you have understood and changed.
This article is published by Healthcare Ethics Australia for general information. It is not legal advice and does not replace advice from your indemnity insurer, professional association or a lawyer about your own matter.