Dr Leong Ng discusses the ongoing problems of the medical complaints process following the Senate Inquiry's report.
The inconvenience of the truth
NOVEMBER 2016 appeared hopeful for many Australian health registrants, doctors included — and the public. The Senate Report on “Medical Complaints Process in Australia” released on 30 November has been described variously as “depressing”, “great”, “chilling” and “disappointing”.
Few will, however, disagree with its recommendations – that a new inquiry be organised. And so it was.
On 1 December 2016, the Senate referred 'The complaints mechanism administered under the Health Practitioner Regulation National Law' to the Senate Community Affairs References Committee for inquiry and report.
For this reason, this article has been written in the public interest.
In 2013, retired distinguished Australian QC, Tony Fitzgerald wrote a scathing tirade on the persistent and increasing discomfort in governance caused by conduct of the then government in the state of Queensland. It certainly followed a change of the one term government. Included would have been health management matters.
Mandatory Notifications — a continuing controversy
In 2014, the Medical Journal of Australia (MJA) published a research paper, presumably to interrogate KPIs, but which, instead, unwittingly raised, amongst many issues, the spectre of unconscionable malfeasance and globally increasing sham peer reviews of past and present medical and other health boards (and colleges) in all jurisdictions of Australia.
It appears that this untested policy was a copycat one from the U.K. General Medical Council (GMC), post Shipman and Bristol — and later, the now historical New South Wales (NSW) Medical Board. The premise of this policy is that a registrant is deemed to be acting unprofessionally if, believing an alleged unprofessional action by another, is not reported to the regulator.
Conversely, those in “the club” may also be protected for all manner of actions.
The controversial subject of notorious mandatory notifications pays little regard to the quality of evidence received. It wrongly assumes that self-regulation includes the consideration of all manner of evidence as "acceptable”.
This, in essence, means that false, frivolous, vexatious, orchestrated and error-ridden notifications (one or in combination) will be welcome, and often relied on by the regulator — in the case of Australia, the Australian Health Practitioner Regulatory Agency (AHPRA) and, until recently, the GMC.
The deadly combination of poor quality evidence and mandatory reporting
Recently, in the UK, the miscarriage of justice in the Mr David Sellu case illustrates the fundamental flaw in not considering that there was absent (concealed) information and a grave error of law resulting from non discovery.
There appears to be no accountability lines defined and evidence can literally be "sucked out of a thumb" at will. The MJA has already published on this matter of concern in 2011 in relation to a Senate Inquiry on the performance of AHPRA. No one cared.
Evidence-based medicine teaches us that much retrospective data cannot only be flawed and biased but needs to be treated with caution to develop a new hypothesis. In this case, the matter of its use is at an even lower level — that of an "expert opinion", that used principally in Courts.
In the MJA study, non quantifiable raw retro-data were taken from mandatory notifications in all states and territories except NSW with several of the authors being themselves the architects of what appeared to be an unvalidated instrument.
Complaints handling entities
NSW, until recently, was the only Australian jurisdiction that uses a separate entity to assess complaints against health professionals in a co-regulatory model with the Healthcare Complaints Commission and appears to have the same pattern of alleged mendacity.
From 1 July 2014, Queensland implanted a different model of handling of complaints against health practitioners, using an all-powerful Health Ombudsman, who in turn reports to the Minister of Health. This was in response to very serious Crime and Misconduct Commission report by Chesterman, a retired Judge on some disclosures by whistle-blowing former Queensland Medical Board investigator, Jo Barber.
Of curious interest is why the Medical Board prosecution of Dr Jayant Patel never occurred during the whole period of his "criminal" trial that led to his false imprisonment and later release. The most notorious states for health care worker persecutions appear to be Queensland, NSW and Victoria. Good quality data are not easily available.
Though the often mis-applied Briginshaw standard in assessment appears flawed, it still remains the gold standard in all Commonwealth jurisdictions today in medical jurisprudence.
Many prosecutions based on flawed evidence — whether falsified or erroneous, have reputedly occurred. This departure from the rule of law is also seen with past GMC actions — the most glaring and shameful recent ones being the recent separate and unrelated cases of Professors Meadow, Southall and Australian trained, Walker-Smith. These, in fact were difficult and costly to correct — whether they be errors or acts of malice. All these professors prevailed in their appeals.
Proposed reform in Standards
It is suggested that the gold standard for disciplining and prosecuting health practitioners should be nothing less than that used in criminal jurisdictions (a pre-Bristol/Shipman era policy), principally because a long professional career risks instant destruction by error or malice. This can be summary job suspension and loss of reputation, conditions imposed and formal suspension from the register or deregistration in that sequence. But, by this, it follows that a regulator will not so easily get its pound of flesh in its oft-abused political credos of "protecting the public" and "guiding the profession".
In Australia, the issue of the correct jurisdiction is also real and inconsistent — thus giving AHPRA bureaucrats a free rein to do what they wished. This is serious and the latest "tele-suspension" (trans-jurisdictional suspension) of euthanasia campaigner Dr Philip Nitschke raises concerns for further potential malfeasant tele-events to be applied.
Dr Nitschke made an application for (and won) a jurisdictional transfer. His appeal of his suspension was finally allowed but AHPRA immediately imposed new conditions, thus permanently paralysing his practice, which he then gave up, another pyrrhic victory.
This part evaluates the rot happening to the nation in regard to the health care regulatory dysfunction as corroborated in the first Senate Inquiry. A current second zooms in on AHPRA, the colleges and “relevant organisations” in regard to National Law and promises to be equally revealing. It is hoped that higher authorities will not "censor" cases in the guise of "protecting them from litigation". After all, this is what parliamentary privilege is all about.
Concluding Part 2, still to come: Leong asks “when does a scheme become a scam?” This will discuss vexatious complaints and their nature, reforms, fairness and the ideas surrounding a “duty of candour”, pre-empting material for submission for the next inquiry.
Conflicts of Interest: The author, a non "club" member, was a victim of vexatious and frivolous reporting to the RACP, which was allegedly also complicit and then, participatory. This led to his peer review practice extended in 2004 with a confidential (now exposed) exit deed by a Victorian public hospital.
This work is licensed under a Creative Commons Attribution-NonCommercial-NoDerivs 3.0 Australia License
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