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Australia’s brave new healthcare crucible: Snowball's chance

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Kim Snowball (Image via LinkedIn)

COAG's response to the recently released "independent" report of Kim Snowball into AHPRA illustrates Australia's perfunctory approach to problems with its dysfunctional health industry regulator. Dr Leong Ng completes his two part series.

Read Part One: Australia's brave new Healthcare crucible.

Recommendations of the Report

Though the recommendations may appear commendable, a good number of these focussed on the consolidation of health boards to "merge" with the intent of “cost savings”. Reducing bureaucracy to enhance efficacy is admirable, however more transparency into the actual costs accrued by each sub-section of the health board bureaucracy would be a good starting point.

In June 2014, a consultation paper was produced, before the formal commencement of the acceptance of submissions.

The author, who sent an early submission with his group, had this accepted on 2 July 2015, before the announcement of the submission dateline, first at the end of Oct 2014 and later, extended to Feb 2015.

Amidst the silence, a communiqué (Bulletin 3) in March 2015 then stated the report would be considered in April 2015.

During the April 2015 COAG meeting, the public release was postponed to Aug 2015. Note that this Council operates on an unanimous consensus basis — that is, any dissent will not lead to a constructive way forward.

The Report was strangely labelled as completed in December 2014.

In a communiqué (issued on 7 August 2015, accessed on 15 August 2015 and now removed and replaced on 17 August 2015), out of 33 Recommendations, nine were accepted, six were not accepted; 11 were accepted in principle subject to further discussion and seven deferred pending further advice. The reissued communiqué, dated 17 Aug 2015 (accessed on 18 Aug 2015), had additional points for Recommendation 9, parts a to i being, in my view, a breach of civil liberties.

The chronology of the uncertainty, caprice, dissent and departure from the rule of law suggests a crucible of crisis.

Selected comments below are by no means comprehensive.

Duplicity and review of college performance

(Recommendation 1, rejected)

Recommendation for a review to reduce the duplicity of processes will hopefully reduce red tape but independent private entities (that is, colleges) will probably stubbornly continue with the status quo into order to optimise their incomes. Luckily for now, colleges will not enjoy an unwelcome spotlight on their activities. But it does not assist aims to achieve goal 3.

The ACCC’s recent interest in health matters is very encouraging, as is the 2009 appellate judgment of Shahid v ACD.

Complaints Processes

(Recommendation 9, accepted)

One interesting reform recommended is the interview of complainants in the complaints process. This is similar to stipulations in Queensland's Health Ombudsman’s Act 2013. The notion of shared assessment with health complaints entities appears to be in the right direction as is the implication for reconciliation and arbitration. 

It is a good departure from the old practice of accepting all manner of complaints and using the flawed Briginshaw standard of "reasonable belief" in an assessment, which essentially assumes that a registrant is guilty till proven innocent in an adversarial pathway.

However Recommendation 9i, which suggested searchable-filed complaints for "research" into predictability of professional misconduct, is serious. It implies that a non-judicial officer can make a finding of professional misconduct and set this in the file of a registrant, which can be discovered by others. This consolidates what past medical boards and many AHPRA state boards have been doing all this time.

This is against natural justice. It still gives frivolous and vexatious complainants the upper hand for sham peer reviews (a form of bullying) and for this practice to continue unchecked.

Recommendation 10 of reform, aimed to align with that of mandatory notifications in regard to the law in WA, was excellent but unfortunately was "not accepted' by the health ministers.

Advertising

(Recommendation 11, rejected)

For the first time, some regulation on the broad scope of "advertising’ is mentioned, in a society that had previously embraced a more commercial approach to publicising health services the system more away from the U.S. style of regulation towards the more conservative British one (from which the Australian health practice had evolved). It was not accepted.

The National Health Ombudsman

(Recommendation 17, accepted in principle)

The National Health Ombudsman, a previously toothless tiger has now been recommended a set of dentures. Perhaps the bite may improve.

Revalidation

(Recommendation 20, accepted in principle)

Some effort has been recommended to control private assessment fees set up by exclusive specialist colleges in assessment of overseas graduates, which may be getting out of hand.

This was accompanied also by recommendations to explore formal statutory revalidation (a la the General Medical Council UK) as a viable educational requirement — a non-evidence based move that has received some resistance from the medical profession, though interestingly was also being independently researched by the Medical Board of Australia.

Tighter powers implied to tribunals

(Recommendation 29, accepted in principle; Recommendation 32, accepted)

Recommendation 29 and 32 are non-specific and have the subtlety of conferring powers to entities to operate across State jurisdictions throughout the Commonwealth on differing state statutes. In other words, one’s enemies in Victoria may act across the borders, exploiting NSW law to attack and harm a registrant in a frivolous or vexatious attack, based on ‘reasonable belief’. Is that rule of law? 

Two recent victories, however, give us some comfort — those of Dr Vega Vega and Dr Philip Nitschke.

This recommendation must be challenged, interrogated and debated in a proper platform.

Conclusion

The author acknowledges that the national scheme is in its early years. Failings will and must occur for people to learn. AHPRA nouveau, like beaujolais nouveau, has to be tasted and tested to prove itself. No year has ever been a good one.

Challenges have been published in a three part parody “AHPRA in Wonderland”, where Mr Snowball was caricatured as the Cheshire cat, although he may now be becoming like Napoleon’s rival — falsely accused and scapegoated, as with some of AHPRA's actions.

The elements in the crucible continue to grind and burn though the review outcomes may bring some benefit — but also disaster. It appears to be like an experiment in alchemy at this time, with Macbeth’s witches at work ('double double toil and trouble; fire burn and cauldron bubble’).

During this time, some harm will inevitably occur. Who will compensate the victims of this systemic dysfunction? Should taxpayers agree to continue funding state and state-delegated public and private mendacious conduct and malfeasance? Few will have the resources to seek justice in the higher courts to review major administrative blunders, and the malice of some tribunals, health boards and colleges.

In my view, only a Royal Commission along the lines of that of the current one into institutional child sexual abuse will save the day and produce the truth and real reforms. This is an alternative to continuing dysfunction and possibly informed revolt by health registrants and the public.

Disclosure: Dr Leong Ng, FRCP Edin, has been an enduring victim of frivolous attacks and bullying by the Royal Australasian College of Physicians via the NSW Medical Board. Because of this, he set aside his application for the FRACP but still successfully practises as a consultant physician, as recognised by Medicare and other entities. He is a founder member and sits in the committee of the newly formed Health Professionals Australia Reform Association (HPARA).

If you would like to learn more about HPARA please email hparacommittee@gmail.com or call 0499 399 081.

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