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Dr Leong Ng continues his review of peculiarities in the application and administration of Australian human rights law and their impact on the medical profession.

Part 2

THE AUSTRALIAN Health Practitioner Regulation Agency (AHPRA) is a family of beasts created by state statutes called “creatures of statute” and administers National Law in relation to the medical profession.

The peculiarity is that National Law allows health professionals to practice across state borders with no further registration but not for "limited registrations those given by doctors under Australian "assessment". Yet the authorities of each state can act across state borders on any registrant.

The most controversial case is that of Dr Philip Nitschke. I am neither supporting nor condemning Dr Nitschke’s actions but simply highlighting that his suspension in the Northern Territory was administered by AHPRA in South Australia, despite him never having practised there.

Dr Nitschke gave me his account of the incident as follows: 

Brayley suicided in Perth. He was 46, had attended one of my workshops, contacted me later by email saying he was going to end his life.

He was later shown to have been about to be charged for the murder of two previous partners. I said it was rational suicide, the Medical Board said I should have referred him for suicide counselling and they used their emergency powers to suspend me, stating that I was a danger to the Australian public.

The Supreme Court of the Northern Territory found that the Board and the NT Medical Tribunal had acted illegally and my medical registration was reinstated.

Dr Nitschke was suspended from practice as he was deemed a "danger to the public". No clear due process was followed and Dr Nitschke was later shown to have been denied natural justice in that process.

The judgment was focussed on the legal technicality of "reasonable belief" which illustrates a contemporary challenge of the current civil law standard known as Briginshaw v Briginshaw. This may sound logical but it is clear that the human and civil rights of Dr Nitschke were trampled on, as have the rights of others in AHPRA cases.

Another 2015 example is that of Dr Antonio Vega Vega, whose legal victory indicated that justice is possible for breaches of civil rights. Although the human rights perspective was not pursued, serious breaches had occurred.

In any Westminster style democracy, a person is innocent until proven guilty. The onus is not on the accused to prove their innocence.

Currently, the challenge when dealing with AHPRA appears to be having to supply exculpatory evidence. Indeed, it has spawned a new industry: that of lawyers defending doctors.

AHPRA and Commonwealth Law 

While AHPRA was not created under Commonwealth Law and is not accountable to the federal parliament, it is still accountable to the Australian Constitution under the doctrine of head of power linkages. However, AHPRA branches and their bureaucrats are accountable to the individual state governments which created them and must still act within the broader Australian Constitution.

In some AHPRA cases, there appear to have been breaches of the Constitution in relation dispossession of property — in this instance, intellectual property. In my view, this is a form of psychological false imprisonment.

One recommendation (9i) of the recent Snowball Report to the Council of Australian Governments (COAG) Health Ministers, is not unlike the U.S. National Patient Database  a potentially Orwellian project according to Dr Don Kane. This recommendation would allow a non-judicial officer to decide professional misconduct to be recorded on a national database, without the usual safeguards afforded in usual legal proceedings.

Jurisdictions: those missing in action

Australia does not have a bill of rights. The Australian Human Rights Commission Act 1986 does not clearly set out what the constitutional rights of an eligible person may be. It has within its jurisdiction the employees of the Commonwealth or Commonwealth statutory bodies.

This immediately excludes a large number of state public servants who are thus under the jurisdiction of individual state human rights acts (known in some states as anti-discrimination laws). They can, therefore, breach a Commonwealth Act in a malfeasant action and be technically immune.

In healthcare regulation, these regualtions may not apply to workers in private entities except under the Australian Constitution. Conversely, these private entities – even though they are delegates of a statutory body – are seemingly also immune from actions if they should breach any of the acts which applies to them such as the Private Health Facilities Act 1999 (QLD) or the Health Insurance Act 1973.

When delegated a duty under Australian law, Australian medical specialist colleges are creatures of statute and should be bound by the principles of administrative law, for example.

In the ultimate court, the High Court, the jurisdiction is only on a point of law or the law itself (Commonwealth or State) and only after the matter has traversed lower courts including the federal courts and when represented by counsel.

To seek non-capricious Australian justice in healthcare matters may be a highly convoluted, frustrating and costly affair at this present time. This is because Australian lower courts are of variable and even inferior quality. Some tribunals act along the same lines as football disciplinary tribunals. In addition, to reach the more consistent appellate higher courts, matters need to traverse the lower courts but are often dismissed by lower court judges.

Following Bingham’s doctrine of sub rules in the "Rule of Law", the human rights of health registrants continue to be breached by AHPRA and its delegated collaborators and by Australian state governments.

Is there a link between Australian healthcare human rights breaches and the ambiguity in the law?

Two inspiring historic High Court cases set the precedence. They are not healthcare cases but cases which relate to the rights of Indigenous Australians. These are the Mabo Decision and the Tasmanian Dam Case, which have become classic points-of-law examples for Australian academic legal debate.

The link in both appears to be in Section 51 of the Commonwealth of Australia Constitution Act. This refers to the state-sanctioned dispossession of property (which, in my view, includes intellectual property). Generally, High Court Chief Justice French offers the viewpoint of "reciprocal restraint" on supremacy.

Orwell was right. In the context of alleged human rights breaches, often the matters related to health registrants are "disciplinary" or "administrative". These are often breached by authorities administering both State ("National Law") and Commonwealth laws such as the Health Insurance Act 1973.

With inconsistent practices across the oligarchy, New South Wales, Queensland and Victoria appear to have the highest rates of public domain reported actions — presumably because of their higher populations. Some of these appear to include human rights breaches.

The most common platform of prosecution is the antiquated, Medical (or Health) Tribunal. The case is judged by a panel supporting a Chair, usually a Judge or Judicial Commissioner and "advised" by purported "peers".

Some of these "peers" are not peers in the true sense of the word but are selected from another branch or specialty of the profession. Hence, decisions can be (and often are) fatally flawed and the provisions for due process and natural justice deliberately compromised.

Therefore, there occurs some form of psychological false imprisonment and lawful bullying towards victims of the system – both for the Indigenous peoples of Australia and some registrants.

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. 

If you would like to learn more about HPARA please email hparacommittee@gmail.com, call 0499 399 081, or follow HPARA on Facebook HERE.
 
Dr Leong Ng acknowledges the assistance of Dr Russ Broadbent, FRACS, LLB in relation to legal content in this article.
 

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This work is licensed under a Creative Commons Attribution-NonCommercial-NoDerivs 3.0 Australia License

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