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(Image via medicalobserver.com.au)

Dr Leong Ng concludes his discussion on the medical complaints process following the Senate Inquiry's report.

Review of summarily dismissed complaints

A summarily dismissed notification by a patient (or a practitioner) in an orphan jurisdiction for judicial review, is very pertinent to many dissatisfied complainants.

This remains a vexed question as detailed in the case of patient Jennifer Morris and also the author’s notification to the Victorian medical board of AHPRA concerning a senior college official.

The discussion in the Medical Journal of Australia paper did not mention the very difficult management of false, frivolous and vexatious complaints, and how these notifiers are dealt with. Interestingly, the Health Ombudsman Act 2013 of Queensland has some provisions for these to be dealt with, such as arrangements for conciliation and remediation, instead of adversarial style legalistic attacks and defence. 

The Senate Inquiry

The Australian Senate Inquiry heavily featured the issue of vexatious and frivolous notifications. Australian Dr Gary Fettke virtually became the poster-boy of the opponents overnight.

The policy mentions “departure from perceived expected standards” – a term which vaguely defines how AHPRA and the previous boards have been operating – these arbitrary, unwritten and non-transparent "standards" appear to be discretionary, exist only in the minds of some and appear to be determined by membership in the "club". This means expediency and complicity for the favoured. It appears no different with the notorious mendacity of the UK General Medical Council (GMC).

No control data was presented or compared with the sole jurisdiction that does not operate mandatory notifications — Western Australia. Instead, these were aggregated with the whole group making the analysis of heterogeneous data most certainly inaccurate.

However, the data, though exciting, is highly preliminary and possibly misleading. The essence is to prove that mandatory notifications will benefit the populace and not harm the patient or the practitioner. They certainly did not in this case!

The GMC has never proven it and remains silent about it. Indeed in the summer of 2016, two independent reviews concluded that the GMC fitness to practice protocols were a suicide risk for doctors. Soon thereafter, these were suspended and put in careful pilot mode.

Mandatory notifications and increased powers to AHPRA

Consolidating the approved recommendations (29 and 32), and the "rejected" one of removing mandatory notifications (9i) and connected to these, the rubber-stamped rot will continue to generate controversy. Most important is the persistence of the Western Australian position, now canvassed in a well-argued paper by Goiran et al. The first author is a qualified lawyer in the WA Legislature.

Equally compelling is the GMC UK’s positioning of fitness to practice protocols (FTPP). A British MP even suggested that the home secretary responsible for this is guilty of “state-sanctioned homicide” — as numbers of doctors committing suicide whilst under investigation exceed that of British soldiers dying in Afghanistan.

A recent press report on the extracts from coronial reports depicting alarming numbers of health professionals suiciding by drugs contrasts with vague figures disclosed by AHPRA.

Reforms and fairness

Prospective research using a validated instrument for mandatory notification (deviating from an expected standard) should be repeated, preferably with quantified or semi-quantified observations — if this AHPRA policy survives no visible reform in the 2015 NRAS three-year review.   

Finally, the fair treatment of whistleblowers – a good number of whom are referred with false allegations to the regulator under the mandatory reporting guidance – has resulted in the Francis Report.

A second issue is the misuse of false or perverted evidence by the prosecutors for tribunal and Court purposes. It is no different in Australia. Devious patients who have taken advantage of the situation and confused genuine complaints procedures remain unpunished, but this needs to be balanced against "freedom of speech", including patient conduct mendacities.

The matter currently under discreet probes is self-harm and suicide by doctors who have been falsely accused. A UK Supreme Court case, which favours proper "informed consent" from a patient’s perspective is to prevail, even though a practitioner may be correct.

The concept of duty of candour

There is presently a discussion on a statutory "duty of candour" to be incorporated in reforms. This, in essence, means:

“A public authority’s objective must not be to win the litigation at all costs but to assist the court in reaching the correct result and thereby to improve standards in public administration.”

This has a conciliatory element in its objective of "protecting the public" – which include those innocent bystander health practitioners – provisions which are already present in the Health Ombudsman Act 2013 (QLD).

The wisdom of a 2004 British article by Samanta and Samanta maintains that the competence of a practitioner should be adjudicated against what he or she does on a regular basis, rather than that of an arbitrary one picked by the regulators for an intended purpose or outcome in a star chamber scenario.

Error, corruption and wastage

To probe these there has to be transparency. Secondly, the concept of misfeasance in public office must be made known and widely accepted and practiced, rather than theorised. 

The Federal Court decision of the University of Technology affair sends a strong message that alleged bureaucratic misfeasance on controversy has the real potential to deplete public funds.

Nationwide, for the present, Victoria’s IBAC leads this with its recent announcement. Internationally, governments may wish to discover that the phenomenon is global and exposure is facilitated by the internet.  

Conclusions

A review to reinstate modernised, non-managerial, professional self-regulation, in my opinion, should be the standard applied by any modern regulator in any real democracy. The politicised credo of "protecting the public" has proven unhelpful. A formal publication emerges in the Winter 2016 edition in the U.S. of the spread of the phenomenon to Australia.

Moreover, specialist colleges being private companies with emerging managerialism further muddy many matters, but these related issues are separate issues on their own. The traditional (ex-British) Australian college ethos has now been subtly replaced and the damage to other larger institutions needs to be highlighted.

The fact remains that, in absolute terms, Australian health practitioner regulation is impaired by many times that of the UK — the outcome appears no different.  

Bonham’s ghost is resurrected to guide us into the next Senate Inquiry.

It is becoming increasingly obvious that a Royal Commission will be needed to fix the mess in health care mendacity and corruption.

Conflicts of Interest: The author 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.

Read Part 1 HERE.

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