AHPRA in Wonderland (Part 3): The Cheshire Cat

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(Image via loztooz13.blogspot.com.au)

After the release of the Review of the National Registration and Accreditation Scheme for health professions this week, Dr Leong Ng* concludes his exposé of the body administering the health profession.

Part 3

The Cavalry arrives! Enters Snowball, the Cheshire cat

'Thus says the Lord: Maintain justice, and do what is right, for soon my salvation will come, and my deliverance be revealed.'

~ Isaiah 56:1, 6-8

PROFESSIONAL PEER REVIEWS which are casual, perfunctory and staged on the “chosen ones” have been called sham peer reviews. They are said to be increasingly in frequency and happening globally.

Perhaps the new terms ‘sham audit’ and ‘sham regulation’ should now be introduced to describe the dysfunction?

The point about sham processes is that the chance of this happening increases with the number of stake holders in any assessment process. Rigging has arrived in healthcare.

Australia, compared with the UK, has four times the number of staff and it costs nearly twice as much to ‘regulate’ per head of health professional in absolute terms.

Historically, in the English speaking world, the first recorded judicial review was that of a sham peer review on Dr Thomas Bonham, who was briefly imprisoned through the authority of the Royal College of Physicians in London (the mentor college of the RACP) in 17th century England.

Medical and Health Board peer reviews (including college ones) may now be under the spotlight – as is the quickly destabilising NSW HCCC – hopefully, a domino effect for Australia. Such peer reviews (the negative harmful ones) also inflict psychological false imprisonment on an individual, which Sydney Barrister, Mark Robinson, SC, discussed in detail in 2008.

AHPRA is now four years old. As part of health maintenance privileges accorded to all Australians, Medicare Australia approves of a reimbursed four year old health check on all children. It is done by independent GPs, not Government staff. Quite rightly, AHPRA, now being four years old ‒ like a child ‒ needs an independent health check.

In a sorely-needed pre-planned analysis (the three year review but only after AHPRA’s fourth birthday (1 July 2014), the Health Ministers’ Advisory Council (also called the Council of Health Ministers), which AHPRA reports to, announced that Mr Kim Snowball, a past Director-General of Health in Western Australia, will chair the Independent Review Team for the National Registration and Accreditation Scheme (NRAS) Review.  

Will the NRAS review be truly independent and not be another (mad hatter’s) tea party?

The police cannot police themselves – even if it perfunctorily appoints a single independent chair, a project manager and a project officer (both administrative supporting roles presumably being public servants).  

Also for Australian Specialist Medical Colleges, by virtue of being monopolistic delegates of the Australian Medical Council Ltd in peer reviews and accreditations – except for the General Practitioner colleges – the matter looks very irregular.

Medicine (for some) is not about the art and science of practice, but about commerce, turf protection and profit generation – and eliminating competition or threats of it (such as in this). Sadly, some Australian medical specialist colleges support this via the blanket term, ‘protecting the high standards’ (of ‘our members’). Some doctors will remain in their metaphorical shackles and continue to be equated with painters in their union(s) (with apologies to originator, Max Gillies).

Similarly, Health Board members are ministerial-selected (political) appointees (although officially, the governor appoints them in some jurisdictions).

This all mean that vicarious liability in (sham) peer reviews, is ever present.

By this token, as it currently stands, AHPRA (and her stakeholders) must fail in “protecting the public” and, instead, protect their own. With her troubled childhood, serious correctional activities need to be implemented before she becomes a teenager.

Two Australasian Medical Colleges, which are now septuagenarians – with precarious permission to use ‘royal’ prefixes, rather than royal charters (of the Canadian, Irish and British medical specialist colleges) remain a challenge to be reasoned with and corrected.

In Wonderland, after the Queen of Hearts sentenced Alice to be beheaded, she was rightly pardoned by the King of Hearts. Do we see the King of Hearts in Mr Snowball? Hopefully — but he does not have the authority to do so!

Dr Kim Snowball is heading the NRAS review (Image via LinkedIn)

For the NRAS Review, we openly encourage Mr Snowball to be transparent and truly independent, as stated in the terms of the Public Consultation document released. A quick read suggests that the focus may be on cost-savings plans and to please all parties.

Some of the management techniques used by the establishment can be so harsh and unreasonable that it can and will transform any normal person into a psychologically perturbed one. This in essence, fulfills the tormentors’ objectives in pursuing their sometimes incorrect (even malicious) allegations to achieve a win.

It is also hoped that Mr Snowball does not get chased away from the task as depicted in an Orwellian fairy tale but be allowed to do it properly and independently, without any political or Judicial ‘interference’

Of immediate concern to both the public and registrations alike are:

  1. The inability of any individual to mount a rapid, inexpensive and independent external review of an AHPRA (or an AHPRA-delegate, for example via the Australian Medical Council Ltd) decision. These are complaints by both patients and practitioners or mobbed complainants – before these falsely escalate.
  2. The bureaucratic and political obsession on persecutions (note a persecution may be as damaging as a prosecution) including cross-jurisdiction ones as a key performance indicator in ‘protecting the public’ or ‘guiding the profession’ (for which there is only an arbitrary standard professed as a non-evidenced-based tested opinion, at best, the not infallible, oft misapplied Briginshaw standard).
  3. The ease of abuse of using AHPRA (or a predecessor) as a tool of attack, damage and destruction of a health professional 1, 2, 3, 4, 5, 6, 7, 8 ,  9 ,10, 11 by bureaucrats (including board committee college mandarins) and by the faceless men and women in the health profession itself. Often, there is no natural justice or procedural fairness or due process (all cornerstones of a democracy) for all the three. Sham reviews need to be proven and action taken to correct these. Interestingly, the relatively new Queensland Health Ombudsman Bill 2013 has some provisions to address these but they remain unclear as to the author’s knowledge, have not been used till now.

If these (amongst others), are all addressed perhaps then, we can all be removed from the fantasy-turned-nightmare and be returned to proper rule of law with a functional moral compass. After all, dubious non-evidence based trial and error methods (that is, unapproved experiments of inconsistent discretionary standards) used on the management of the public and of health professionals may cause mistaken (or maliciously) harm – error in law or fact – this is totally reckless, callous and even evil."

Extremes (or lack) of rigour in bureaucracy (the sham peer review = corruptible and corrupt conduct with corrupted facts and outcomes) may lead to an unacceptable error rate, non/mis and even malfeasance. It does not ‘protect the public’ or ‘guide the profession’ but instead harms them. It renders any determination ultimately null and void.

Australian research shows that corrected errors in misinformation still leave their mark of damage. Errors of fact depend on the quality of evidence and, have resulted, for example, in high profile cases (with complete reliance on forensic evidence), as in the Lindy Chamberlain case and the Colin Winchester murder case.

Similarly, if medical board (including college) errors of fact are fully relied on, false conclusions will be embedded and propagated and lives forever damaged.

Also extinguished is original thinking and this may harm the public via omissions and restrictions. It permanently harms those in the profession falsely accused as like in a criminal conviction. It can only be a professional death sentence given by a lower erring court or tribunal following what is akin to a sexual assault.

Additionally, false and uncorrected adverse outcomes erode into the fundamental principles of s51 (xxxi)  of the Australian Constitution (which trumps everything via the ‘head of power’ doctrine). To further clarify, the s51 (xxxi) ‘use of the Commonwealth’ clause refers to the intended function of ‘protecting the public’. This, when incorrectly administered, leads to consequential effects, for example, a breach of the Australian Human Rights Commission Act 1986 (Cth) or, indirectly on s3 of the Health Insurance Act 1973 (Cth). Alleged AHPRA (State Health Board) malfeasance only matter secondarily, but include mistreatment of many, including the author.     

Aggravated and exemplary damages (terms coined by Lord Devlin, MR) as relief for false imprisonment (which includes false psychological imprisonment) are enunciated in, for example, Commissioner of Australian Federal Police v Propend Finance Pty Ltd (1997) 188 CLR 501 at 558.

It is indeed time for a Royal Commission, as a group of us have recently recommended. It is not difficult to draw parallels with the ‘bear witness’ accounts and other revelations of the ongoing Royal Commission into Institutional Child Sexual Abuse.

The aggrieved public and those falsely damaged in the profession need justice and closure – including families of those falsely disgraced and deceased.

Acknowledgment: I thank Mr Jamie Bell, RN (a pseudonym), Dr RB and Dr TY, PhD, for their comments and helpful suggestions on this piece.

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