The Queensland health minister’s decision to independently scrutinise the actions of the Medical Board of Australia will hopefully lead to much needed medical administration reform, says Dr Leong Ng.
“We hang the petty thieves and appoint great ones to public office”
THE BOLD DECISION by the Queensland health minister, Lawrence Springborg, to independently scrutinise the actions of members of the Medical Board of Australia (Queensland) is one which may be compared to the decision to hold a Royal Commission on Child Sexual Abuse after decades of concealment. It is to be welcomed with some relief, though also with some trepidation.
It has implications for very powerful and influential persons (and/or institutions) in the medical profession who may have had a long history of unchallenged authority. This should also extend to other Commonwealth States and Territories, especially NSW and Victoria.
Of relevance to both, the late Lord Bingham (a respected senior judge in the UK) articulated two important principles during the 2006 6th Sir David Williams Lecture at the Centre for Public Law, University of Cambridge, entitled “The Rule of Law”.
Firstly, regarding the concept of the Rule of Law, the paradoxical part, quoting Professor Raz, was as follows:
“A non-democratic legal system, based on the denial of human rights,… will be an immeasurably worse legal system, but it will excel in one respect: ….in its conformity to the rule of law ... The law may ...... institute slavery without violating the rule of law.”
My questions are that, without a comprehensive charter of human rights in Australia, how can it be ensured that the human rights of those who are involved may be maintained and respected; and how is the rule of law going to be pursued or challenged?
These are fundamental in the process.
Secondly, and the main subject of this piece, how should all dealings with the concept of a professional’s reputation in the eyes of the public (and included here are unknown colleagues) be managed in the context of alleged human rights breaches?
At stake are the reputations of senior medical practitioners for their alleged non/mis/malfeasance and also the attempted restoration of reputations of other doctors erroneously damaged by these actions.
Another of Lord Bingham’s oft-quoted judgements on doctors brought before courts for professional misconduct is this:
… a profession’s most valuable asset is its collective reputation and the confidence it inspires …. The reputation of a profession is more important than the fortunes of an individual member … membership of a profession brings many benefits but that is part of the price …
This wisdom works in a society where a profession is revered and respected – and so it was, for a long time for the priests and doctors – but not for long, in my view.
Examples where this may be quoted are found in the different UK cases of three world authorities in paediatrics: Professor David Southall, who had to traverse a series of onerous high profile court cases before he was ‘exonerated,’ and Professor Roy Meadow, who did the same. More recently, there was Professor John Walker-Smith, an Australian, who worked for most of his career in London ,whose problem appears to have been being associated with Dr Andrew Wakefield ‒ the disgraced MMR vaccine researcher – whose guilt is now also being questioned because of the 2012 outcome.
All the three professors suffered initial guilty verdicts but pursued justice — and all won on separate unrelated appeal hearings. Of course, such damage can never heal completely. We do not know whether the Dr Wakefield case will now be appealed.
In hindsight, these three men had their reputations destroyed because of what appears to be a combination of factors regarding their position and some serious systemic problems – for example, a perception by authorities of their belief that they may be above the law in their actions – essentially an alleged breach of their human rights.
The erred actions (of the UK lower judicial system) are not unlike those alleged serious errors made by Medical Boards (and Australian Specialist Medical Colleges and their cohorts (i.e. hospital bureaucrats) in their assessment of Australian and also overseas trained doctors as detailed in some horrific individual “bear witness” accounts in Lost in the Labyrinth, a House of Representatives inquiry published in March 2012, thus supporting the notion of erosion of human rights of these doctors and also that of ordinary regional Australians.
Any inquiry which may follow ‒ like the intended scope of the Royal Commission on Child Sexual Abuse ‒ will hopefully be inquisitorial and not adversarial in its approach and will no doubt cause some real damage to the reputation of some members of the medical profession.
One concern is the power of the commissioners to refer certain persons to the appropriate State prosecution service, all of which utilise an adversarial approach. This may also be good, as it challenges Lord Bingham’s conservative and idealistic wisdom.
The clandestine protection of a select powerful few should never lead to a broad brush taint of the whole of the medical profession, as it has done, for example, with the overseas trained doctors of Australia.
It would be those who indulge in the act of concealment who should be brought to account on a case to case basis.
Signs of regulatory, other administrative and managerial dysfunction have appeared with surrogate outcomes – the most infamous being the Dr Jayant Patel debacle. But, as it is being subject to due process – that is, further trial – no further comments should be made.
The recent announcement that several members of the medical profession in Queensland shall be investigated as the result of Jo Barber’s revelations is promising and in the right direction. There is also an example of a private hospital allegedly overlooking issues when it did not appear to relate directly to or benefit them.
Though these proposed actions may be seen as another exercise to placate public wrath and a show of “accountability”, they must not do what was unfairly done on Professors Meadow, Southall and Walker-Smith, as in the UK.
Medical practitioners ‒ like priests ‒ generally have the great complete trust of the public (and the government) and it is said that they should be left to regulate themselves. Indeed, it is conventional Australian (and UK) judicial practice to refer cases back to a medical board even when it has been shown that there has been some error.
I do not agree with this approach for the following reasons.
Firstly, doctors should not occupy any higher or more privileged position in society than any other person. High office is permissible only if that office can be called to account in every possible way; position holders are not above the law and, if they act above the law, they should be made accountable in the public interest. The mystery of the profession with its lack of transparency are relics of bygone days.
Secondly, there appears to have been too many cases of possible error in law and/or administrative processes made on doctors which have been long concealed or ignored. Sometimes, malice or good intentions cannot be differentiated. The actions of decision-making doctors may be muddied by actions mal-administered by an army of medical managers.
The stark examples I can think of are those of Dr Helen Tsigounis in Queensland (and Victoria), Professor Paddy Dewan and, more recently in Victoria, that of Dr Mark Colson. There are also many overseas trained doctors, including the author, as revealed in “Lost in the Labyrinth.”
Doctors, nurses and managers/administrators (most of them unregulated) who falsely or frivolously accuse a colleague on the premise of being “concerned about the safety” for a patient should be dealt with according to the law … but, this does not ordinarily happen in my experience – as the old boys’ club appears to protect them and the matter is soon forgotten.
Those formally complained about may suffer serious consequences — even though they may not be guilty. Those who highlight genuine concerns may also be targeted, as with Professor Paddy Dewan.
Sometimes, informants, as it was claimed with Queensland whistle-blower, Jo Barber, may be in error because of the withholding of crucial information from them by managers. This was concluded by the Chesterman Report to the PCMC last year.
But, on the other hand, all whistle blowers’ and other complainant’s concerns must also be meticulously interrogated in a balanced way to exclude frivolousness and malice components.
The attack/protection racket includes doctors who sit, purportedly “immune”, in the ivory towers of Medical Boards and specialist colleges. It is interesting to note that following the Queensland health minister’s threat to dismiss the Medical Board members, the majority voluntarily resigned, effective 3 May 2013.
Current Australian law regulating medical practice remains obsessed with ‘protecting the patient’ but, unfortunately, it is also very powerful in protecting some in the profession — and thus be harmful to be public. This unwritten power to protect their own (and also to easily attack as a mob) is entrenched in many hospital cultures and specialist medical colleges — like in the priesthood. This is absolutely unacceptable.
Dishonesty – whether professional, personal or administrative – and lack of integrity do not even feature in current Australian law. Equivalent laws exist even in many developing countries, where standards of the conduct expected of a registered medical practitioner often surpass that required in Australia.
The Medical Board (and specialist college) culture ‒ and this includes the GMC UK ‒ of wanting its proverbial “pound of flesh” must be revisited. The historical examples of Galileo and Paracelcus should be noted with greater seriousness.
A Royal Commission will certainly explore how traditionally ‘sacred’ professions can and should lose immunity from the protection accorded by society itself.
Australian law already provides for administrative nonfeasance, misfeasance and malfeasance under both State and Commonwealth provisions. Briefly, these mean ‒ respectively ‒ non action, wrong action and harmful action by bureaucrats in dealing with any issue. They are all considered ‘corrupt’ in various degrees under the law.
It must also be noted that representatives of specialist colleges who sit in the medical boards and the Australian Medical Council are de facto “creatures of statute” and therefore directly accountable in law.
My prayer is that Mr Springborg’s bold and innovative actions will trigger an Australia-wide Royal Commission on the regulation and administration of medical practice nationwide and lead to a much needed reform.
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