Pecuniary Interest Duty of Disclosure

In our experience, there is at times a misconception that medical practitioners are prohibited from using products from companies in which they have a financial interest, or in relation to which they have made a referral or recommendation. The Health Practitioner Regulation National Law Act 2009 (the National Law) does not prohibit the use of products from companies or referrals to companies in which a medical practitioner has a pecuniary interest. However, it does establish strict criteria for ensuring that all pecuniary interests are disclosed. Indeed, the National Law provides that a failure to disclose a pecuniary interest in giving a referral or recommendation is unsatisfactory professional conduct, which could lead to disciplinary action.

What is a pecuniary interest?

For the purposes of the National Law a "pecuniary interest" includes a medical practitioner who holds 5% or more of the issued share capital of a public company or has any interest in a private company. Such an interest would include a financial interest in a private hospital or day surgery facility.

Duty of disclosure

Compliance with obligation of disclosure

Medical practitioners should ensure appropriate measures are in place to disclose any pecuniary interest to all patients, as well as to all hospitals where the medical practitioner may operate or provide clinical services.
In relation to patients, a medical practitioner should ensure that the disclosure of the pecuniary interest is part of the provision of informed consent. This can take the form of a direct discussion with the patient, but it is also recommended that the medical practitioner make disclosure of the pecuniary interest on relevant consent forms and/or by display of a notice in the practitioner's rooms. Disclosure of a pecuniary interest on the medical practitioner's website would, where relevant, also be recommended.

Scott Chapman, Partner, TressCox Lawyers.

1 Good Medical Practice: A Code of Conduct for Doctors in Australia. Available at: medicalboard.gov.au/Codes-Guidelines-Policies.aspx.
2 Australian Orthopaedic Association Position Statement on Interaction with Medical Industry. Available at: aoa.org.au/Resources/Standards_and_policies.aspx.