Dr Leong Ng – himself a victim of a sham peer review – discusses oddities in Australian law and the proliferation of bureaucracy and how these factors impact on the human rights of health professionals.
FLAWS AND MALICE in administrative processes anywhere have a serious impact on the human rights of persons subjected to these.
Examples of adversely affected Australians during the past twelve months include the mental health of asylum seekers, the psychological impact on the unfairly accused, such as Peter Slipper and victims of workplace bullying and harrassment such as Dr Caroline Tan and other health workers.
Recent encouraging developments include the imprisonment of a bullying employee at Woolworths and the hurried “resignation” of the CEO at Ballarat Health Services following claims of a bullying culture.
An ever-increasing global army of administrators and decision makers (as shown below) also has implications in relation to human rights in the health sector.
The United Nations Covenants
Young Australia signed several United Nations (UN) covenants on human rights at various times:
‘No one shall be subjected to arbitrary or unlawful interference with his privacy, family, home or correspondence, nor to unlawful attacks on his honour and reputation.’
(Article 17: signed on 13 August 1980.)
‘The States Parties to the present Covenant recognize the right to work, which includes the right of everyone to the opportunity to gain his living by work which he freely chooses or accepts, and will take appropriate steps to safeguard this right.’
(Article 6: signed on 10 December 1975.)
‘The right of everyone to the enjoyment of the highest attainable standard of physical and mental health.’
(Article 12: signed on 18 December 1972.)
It is mysterious why a purportedly advanced and developed country has omitted other parts of the United Nations Charter. For example:
‘Of inflicting on any person or group of persons conditions which are incompatible with the dignity of man.’
Another oddity is the compilation of extremely detailed state and Commonwealth statutes which seem to enjoy rapid passage in parliament, usually in the middle of the night, when many MPs are inattentive, asleep or absent.
The Slippery Slopes of Australian-style health practitioner regulation
Once a Bill becomes an Act, it is difficult to amend or repeal without onerous debate or revolt. Strangely enough, despite signing the above covenants in credible international platforms – such as the UN Security Council – the above instruments are not fully incorporated into domestic State or Commonwealth statutes.
With existing statutes, are accompanying sets of regulations – including militarised ones – which frequently evolve. These remain subservient to their respective Acts.
The book explains that there exists a "hierarchy" of laws, like a hierarchy in the judiciary or any private club. Essentially, it affirms that the Australian Constitution is supreme — though there may be arguments that Parliament is supreme.
International Law prevails over the Commonwealth Statutes, then there are the State and Territory Statutes (it remains controversial whether a state statute is ascendant over a territorial statute) and so forth.
But, international law is not easily enorceable in any rogue state.
And, I am sure the Australian Government’s legal advisors know that many links appear to be absent between international and domestic law. That is, the United Nations instruments are not fully articulated into domestic Commonwealth or State Statutes.
This is why incidents like the Dhu case in Western Australia and unlawful bullying of health practitioners continue to take place.
An important aspect of the Westminster system of government, which Australian law is purportedly based on, is that Parliament enacts the law; the Judiciary administers the law and the Executive - various statutory bodies (agencies, police and so on) enforce the law.
Department of Health requests action from Ballarat Health Services over claims of bullying culture: https://t.co/LF4rJJJqOG— Matthew Dixon (@matthewdixon23) November 7, 2015
Simply put, this is called the doctrine of separation of powers and in any true democracy they should be separated, not just appear to be separated.
Conflicts of interest must not occur as any process in a department can then be tainted. For example, in enforcing the law a statutory agency must not be the judge, jury and executioner.
The spotlight is now on AHPRA — the latest incarnation of state health regulatory boards.
Though AHPRA is purportedly a fresh start replacing many discredited health boards Australia-wide, it has incorporated and metamorphosed from the long established culture of past state health boards — both good and toxic.
Principally, because of numbers, what stands out are the medical and nursing boards' persecutions by these agencies. Naturally, "disciplinary" actions stand out.
In what appears to be a knee-jerk reaction, AHPRA in Victoria is openly soliciting for complaints against health registrants — still not learning from the unresolved case of nurse Jane Thompson in NSW.
Protecting the public from whom? Those rogue registrants? Definitely so.
But, in my view, the public – including registrants – also need protection from the regulators. Simple administrative errors (including a non bona fide review) may lead to the permanent end of long illustrious careers.
After all, AHPRA is the regulator, which opens and closes the door for the registrant. The regulator can also indirectly harm the public and registrants by breaching their human and civil rights.
Errors and malice in protection and non bona fide assessments must be remedied through compensation by the State and must not be concealed. Only then can there be justice.
The Aftermath of the Dr Patel case
It would be foolish to deny that numerous breaches of the human and civil rights of registrants have occurred since Patel – including to Patel himself. But it appears that Patel may have traded such gross breaches perpetrated by the regulators on him for “freedom”, just as corporate style “deeds of release” can be traded privately in law, for non-actions or money.
Are human and civil rights breaches higher in the hierarchy of laws than administrative processes of convenience?
Much has been written about matters around this elsewhere. The current Royal Australian College of Surgeons (RACS) “campaign” resulting from an earlier EAG final report and public apology offers precarious hope for some surgeons.
It appears that intended actions against perpetrators will likely be private or internal rather than statutory and the old boys’ club is actively implementing damage control.
Disclosure: Dr Leong Ng, FRCP Edin, a medical oncologist, signed a deed of release under duress in return for non-detention/deportation whilst under a non-immigrant medical practitioner’s visa in Victoria in April 2005, following months of escalating workplace bullying. The Royal Australasian College of Physicians – a private company - was allegedly complicit in the framing of this deed. Honouring the "gag" in the deed had caused him massive career damage – including retaliatory punitive false suspension and reporting to the NSW Medical Board when the whistle was blown, after multiple attempts by the Tweed Hospital to fraudulently use his non-claims provider number in 2006. He has since become more au fait with the relevant laws in Australia and is an active Founder and Committee Member of the Health Professionals Australia Reform Association.
This work is licensed under a Creative Commons Attribution-NonCommercial-NoDerivs 3.0 Australia License
Ballarat resignation follows union claims that bullying is entrenched at the health service. But BHS denies link. https://t.co/6Imu0xfz8f— Charlotte King (@CharEKing) December 1, 2015
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