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The newly established Healthcare Excellence Institute Australia (HEIA) aims to provide further impetus for change through research of a wide range of topics that impact on the health of the healthcare sector.

In particular, matters of governance-related quality of outcomes will be researched with research to be as broad ranging as the legal process involved in Medicare review and coronial investigations; healthcare worker suicide; outcomes for practitioners resulting from complaints processes.

Also addressed is accountability for patient outcomes for those who administer health, not only those who provide the direct care.  

And we wish to review the processes and accountability of the national health regulator, AHPRA. We are a membership organisation that looks to be driven and seeks participation in generating knowledge that will drive change in the healthcare regulatory agenda.

AHPRA was established under Federal law in 2009. In 2016, a Senate investigation into bullying revealed that a significant contributor to adverse workplace relations is the adversarial, secretive processes of a complaints system that too often fails the consumer; it is “gamed” by health administrators attempting to silence those expressing concerns about hospital management. And underperforming health care professionals are still able to go unchecked.

So concerned were the Senators about the role of AHPRA that immediately after their report in November 2016, a further investigation more focussed on AHPRA was launched. This concluded that significant changes are needed – particularly in relation to vexatious claims – and that compensation should be considered for harm caused by a failure of duty of care to complainants and professionals.

To enable healthcare to be as safe as possible both research and political will for change are needed.

So, what are the issues?

  1. There are too many organisations that review clinical performance but don't really deal with quality; very few situations close the audit loop, such as:
    1. Coroner;
    2. Health service commissions;
    3. Medicare review system;
    4. In-house clinical audits.
  2. Too many medical resources are spent on collecting throughput data, rather than quality data.
  3. The audit is about participation, not quality of care.
  4. Treatment, not care, is evaluated.
  5. Administrators are often competitors of those they manage.
  6. There is no moral or legal accountability for the welfare of patients of regulatory bodies.
  7. While there is legal accountability for administrators in individual hospitals, it is not enforced.
  8. Multiple investigations of the national regulator have not resulted in substantive change.
  9. Sham peer review is used to both hide the underperformance of some and to marginalise others who have rocked the boat; being too good, too popular or too successful can trigger a sham process and career destruction.
  10. Administrative tribunals have no limitation, have poor rules of evidence and no accountability mechanisms for the decision making.
  11. Where medical fact should prevail in the adjudication of deliberation on the evaluation of medical facts, patients have little opportunity to seek a legal remedy and healthcare professionals can only appeal to “legal argument” groups.
  12. Hot tubbing – the process of collecting experts to discuss all available information, working for the court, not the legal team on either side – is not used.
  13. Most disputes about the quality of outcomes are legal and adversarial, not designed to be medical-centric.

The best example of the failure of a part of the healthcare system to the community is the example of Lindy Chamberlain, who was gaoled on the basis of medical evidence that was flawed; the truth was only revealed after great suffering and little compensation for those wronged along the way.

Ultimately, it would seem that accountability of the regulator and the administrators for the outcome for patients and providers will induce the culture change necessary for a better healthcare system.

And to conclude, there are two sides of the coin to healthcare regulatory dysfunction. One that has enabled the James Peters, Jayant Patel scenarios and the other that sees vilification of good doctors such as Peter Tisdall, which was a story that led to a Federal Court ruling and a parliamentary investigation after years of torment.

The Senate Investigation reported:

The PSR recently lost two cases in the Federal Courts. The first was the decision on 7 June 2011 to quash the decision of the PSR against Dr Peter Tisdall in 2009, with costs being awarded to Dr Tisdall. The court cited a lack of evidentiary support for the PSR Committee's conclusion in that case, though the PSR Director at the time, Dr Webber, noted that the finding 'does not go to the clinical behaviour' of the doctor in question.

The second case, Kutlu v the Director of PSR, concerned the appointment of a number of PSR Deputy Director and Panel members going back to 2005.

The Court decided on 28 July 2011 that the appointments were made in contravention of the Minister’s obligation under sections 84(3), and 85(3) to consult with the Australian Medical Association (AMA) prior to the appointments. The court deemed invalid the committees to which one or more of those named were members, as well as the reports of those committees. The committee understands that this has led to the dropping of a large number of reviews of medical professionals that were on foot at the time of the decision.

Such regulatory dysfunction still seems to occur in too many directions in healthcare, wasting healthcare dollars on legal proceedings. HEIA seeks to generate data that will drive change.

Professor Paddy Dewan is a Paediatric Urologist and Surgeon. You can read more about Professor Dewan at paddydewan.com.

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