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Sham peer reviews and the old boys' club

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Recent revelations in South Australia about alleged errors in Henry Keogh’s life-imprisonment conviction raises serious questions about the use of sham peer reviews to protectrather than to attack, writes Dr Leong Ng.

“Hypocrisy is a fashionable vice, all fashionable vices pass for virtue.”  

~ Molière, 17th century French Actor and Playwright

Read Part 1: False whistleblowing and the health profession

The Regulator’s position: A personal view

IN A RECENTLY published study in the Medical Journal of Australia (MJA), non-quantifiable retro-data was taken for analysis from mandatory notifications in all states and territories except NSW.

Mandatory notifications in healthcare regulation by the Australian Health Practitioners Regulator Agency (AHPRA) constitute untested policy. An unsafe, copycat one from the UK General Medical Council (GMC) and later, the now historical New South Wales (NSW) Medical Act.

Conversely, the regulator may also act to protect members of the "old boys' club". This is seen in the public arena in the cases of Reeves and Nair in NSW, Peters in Victoria and Patel in Queensland. There is no doubt that many unknown cases of protective concealment exist: the latest exposé being that of Forensic Pathologist, Dr Manock in the Henry Keogh case. Indeed, the then South Australian Medical Board discreetly disbanded when their incompetence was revealed.

The root of the problem is that Health Board members are really political appointees and they often have conflicts of interest they may not be obliged to disclose.

Second, the law appears to be weak, flawed and corruptible.

The controversial subject of notorious mandatory notifications pays little regard to the quality of evidence received. It erroneously assumes that self-regulation means reliance on all manner of “evidence” without any need for external scrutiny.

Indeed, the conflicts disclosures of the authors of the MJA article suggest both confirmation and publication bias and thus the colouring of their data.

Falsities, Frivolities and Furphies

In essence, this means that false, vexatious, frivolous, orchestrated and error-ridden notifications are welcomed and often relied upon by the regulator and its delegates.

The MJA has already published on this concern in 2011 in relation to a Senate Inquiry on the performance of the Australian Health Practitioner Regulatory Agency (AHPRA). So has the Australian Doctors’ Fund, indirectly.

But these have not been heeded.

Evidence based medicine, even in lay terms, expounds that much retrospective data cannot only be flawed and biased but needs to be treated with caution, principally to develop new hypotheses. This will be logically applicable in some way to administrative processes. Indeed, the slowly emerging Campbell Collaboration is an attempt to address this in the “soft sciences”, such as jurisprudence and social sciences.

The matter of the use of "expert opinion" raises major concerns as "experts" are also human and corruptible. They are not usually independently scrutinised for error or conflicts of interests though evidence based medicine assigns “expert opinions” at a low quality level.

Examples of frivolous complaints by the public (and practitioners) include personal perceptions that a practitioner is not “well dressed”, “well groomed”, or that his or her speaking accent or manner does not "fit" — or that they just simply do not like the practitioner and have complained to “frustrate” a process or to “get at” the practitioner.

Furphies include allegations of "sexual misconduct" or alleged abuse of alcohol (or opioids) during work based on hearsay evidence.

Complaints Assessment — the current practice

Until July 2014, NSW was the only Australian jurisdiction that used a separate entity to assess complaints against health professionals in a co-regulatory model. The utility and the integrity of this model are now being questioned. All other jurisdictions appear to be managed by AHPRA and outsourced "experts".

Recently, Queensland substituted a different model of handling of complaints against health practitioners, using an all-powerful Health Ombudsman. This was in response to serious Crime and Misconduct Commission reports to Parliament by Chesterman and Forrester in 2013. They emanated from disclosures by former Queensland Medical Board investigator, Jo Barber.

Of curious interest is why notice of the Medical Board prosecution of Dr Jayant Patel never occurred during the whole period of his criminal trial. The announcement only came after his eventual acquittal, at the end of 2013.

Why had trial by media been allowed to continue?

The Briginshaw Standard of Proof

Though the 1938 Briginshaw standard in assessment appears flawed, it still remains the gold standard in all Commonwealth jurisdictions today in terms of medical jurisprudence. The standard relies on an investigator’s opinion "on the balance of probabilities".

When applied to areas of public interest, as in case law, a potential conflict between corporate societal beneficence and natural justice emerges. This reminds us of Confucian philosophy which has driven thought, attitude and public and private conduct for centuries in neighbouring Asia. This, in my view, will attract debate for a long time to come.

Flawed or fraudulent prosecutions and poor quality evidence in health regulation

In the UK and rapidly emerging in Australia, many prosecutions based on flawed and poor quality evidence, whether falsified or erroneous, have reputedly occurred.

This Machiavellian departure from the rule of law is exemplified by past GMC UK actions, the most glaring recent ones being the recent separate and unrelated cases of Professors Meadow, Southall and Walker-Smith (an expatriate Australian). These, in fact, were difficult and costly to correct, whether it be an error or an act of malice.

It has been suggested that a new gold standard for prosecuting health practitioners should be nothing less than that used in criminal jurisdictions.

In all situations, a long professional career and reputation, nurtured by relatively large amounts of societal and personal funds risks speedy destruction by kangaroo courts.  

Indeed, outcomes may conflict with Australian and international human rights law.

In the USA, with sham peer reviews having been known for at least three decades, the American Association of Physicians and Surgeons (through the efforts of Dr Lawrence Huntoon) has well-organised resources to assist doctors to manage sham persecutions. Not surprisingly, lawyers have established an elaborate service to challenge sham peer review.

Adverse outcomes due to these flaws or falsehoods include summary job suspension, loss of accreditation, the imposition of conditions, statutory suspension or deregistration, as well as loss of reputation and livelihood. The corporate world, which increasingly controls health, knows unregulated perpetrators often just move to another position, untouched. 

The wisdom of 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 arbitrary standards picked by regulators in a "star chamber".

This suggestion, if implemented, to be compliant with the rule of law means that a regulator will not so easily get its pound of flesh in its oft-announced political credos of "protecting the public" and "guiding the profession".

Sir Thomas Bingham (MR), commenting on Bolton v Law Society [1994 WLR 512], wrote:

Lawyers practising in this country...should discharge their professional duties with integrity, probity and complete trustworthiness...A profession’s most valuable asset is its collective reputation and the confidence which that inspires ....

The reputation of the profession is more important than the fortunes of any individual member. Membership of a profession brings many benefits, but that is a part of the price.  

In my view, reforms should look seriously at the Samanta recommendations. A review on the removal of self-regulation (for the Health and Legal professions) using evidence based practice from systematic reviews (such as the Campbell Collaboration) should be applied by any modern regulator in any true democracy.   

No innocent person should be ‘paying the price’ to be a member of any dubiously regulated profession, however ‘honourable’ this may seem.

In order to restore public and professional confidence, AHPRA’s house needs to be first put in order.  Two urgent issues concern independent regulatory oversight and the quality of evidence used.  This will be naturally strongly resisted by the unions of the health professions and their occult networks. (e.g. the inner sancta of the private specialist colleges).

One possible hope might be Queensland’s Health Ombudsmans Act 2013 but, it is early days. Recent developments including the current “Independent” NRAS Review may put the matter into international limelight but concerns for its true independence continue.

Only a Royal Commission will address the issues.

'Civilization means, above all, an unwillingness to inflict unnecessary pain. Within the ambit of that definition, those of us who heedlessly accept the commands of authority cannot yet claim to be civilized men.'

Harold J. Laski, 19th century British economist

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