Issue 22 / 17 June 2013

YOU are a specialist with 25 years’ experience who relishes being on the cutting edge. You have a loyal referral base and have never faced a patient complaint.

Your peer relationships are good with the exception of one colleague you have been competing with since university days, and you both have visiting medical officer rights at the same private hospital.

At recent college meetings and conferences it has become clear that you and this colleague have quite different views about one of your newer treatments.

One of your patients unexpectedly experiences a complication from this treatment and on hearing about this, your colleague reports you to Australian Health Practitioner Regulation Agency (AHPRA) under mandatory reporting obligations.

AHPRA reviews this patient and 20 other patients who received the same treatment in the past 5 years. Eventually AHPRA finds your treatment met the required standard.

However, news of AHPRA’s investigation has been reported in the media and your name is splashed over the front page of the local newspaper, and the hospitals you operate at are named in the stories with a suggestion that they are protecting you.

This case illustrates an important concern about the misuse of mandatory reporting — a problem we think is growing.

Introduced in NSW in 2008 and adopted nationally in 2010, there is no doubt about the need for systems where practitioners who put patients at substantial risk of harm can be reported — the motive for such laws is laudable and sensible. However, we believe that mandatory reporting obligations are being abused.

In October 2011 Avant CEO David Nathan noted that Avant had seen mandatory reporting cases involving “an undertone of market competition or a personal agenda … rather than a genuine concern about the capacity of the doctor to practise at an ‘acceptable standard’”. Little seems to have changed since then.

Mandatory notifications are rising nationally. AHPRA reported a 40% increase in mandatory notifications compared with the previous year in its 2012 annual report.

Unfortunately Avant’s experience, when assisting doctors who have been the subjects of these notifications, has been that in many cases they are not being made with the protection of the public in mind. Rather, a proportion of notifications continue to be motivated by commercial interests, personal gain or reasons other than patient safety.

The statistics seem to support this. AHPRA’s annual report shows more than 60% of notifications related to significant departures from professional practice that place patients at risk. Yet immediate action (which would be taken if the conduct posed a serious risk to persons and action was necessary to protect public health or safety) was taken in less than a third of cases.

In the mandatory reporting cases against medical practitioners that were closed during 2011–2012, 65% were closed with no further action.

Proposed amendments to AHPRA’s guidelines on mandatory reporting confirm that notifications that are frivolous, vexatious or not in good faith in future may be subject to conduct action. A notification arising from a mere difference of opinion or motivated by a desire for commercial advantage is in bad faith.

It is encouraging that the proposed guidelines emphasise that the threshold for mandatory reporting is high. And it should be high.

The potential consequences for a practitioner who is reported are significant; not only financially and emotionally but also with respect to the potential damage to reputation arising from media reports.

A practitioner who has been vindicated after a report continues to feel powerless to do anything about either negative publicity or the situation that prompted the complaint in the first place. This is especially true when the issue hinges on a difference of opinion or a personality clash.

Avant supports the proper use of mandatory reporting obligations where the public is truly at risk of harm. What we object to is the abuse of those obligations for personal or commercial gain, or to lend fuel to the fire of a turf war.

Cases like this can place the colleges, the AMA and the insurer in a position of inherent conflict where they have both the complainant and respondent as their members.

So if you have concerns about a colleague, do some research and get advice before jumping in to report them. Speak to your colleagues (confidentially of course), your college or professional body, or medical defence organisation so that you can be satisfied that a mandatory report is required. Take advice on whether the threshold is met.

A difference of opinion is not a reason to make a mandatory notification.

Ms Georgie Haysom is Avant’s Head of Advocacy and formerly Avant Special Counsel, Medico-Legal Advisory Service and Health Law.
 

7 thoughts on “Georgie Haysom: Bad faith consequences

  1. grahamrow@amamember says:

    Georgie thanks for an interesting contribution.  This looks like the classical consequence of legislators straying too far into the realm of ethical responsibilities.  We now see the inevitable string of unintended harms and ever increasing complexity and confusion as attempts are made to refine the system.  I am stongly reminded of Professor McCaughey’s Arthur Mills Oration in 1988 on medical ethics. (ANZ J Med 1988:18 p824).  To me his arguments are as valid today as they were twenty five years ago and deserve be re-published and discussed.  I look forward to the ethicists’ defence of AHPRA and its laws masquerading as guidelines.

  2. Linda Mayer says:

    Georgie, I’m wondering if you use figures from AHPRA themselves? If so, this is somewhat naive with Medical bodies having such a poor history of addressing problem doctors, even after multiple complaints from both patients and medical staff.

    It is fortunate that the Ombudsman exists to address the instances of poorly managed investigations by AHPRA, The HCCC and The Medical Board.

  3. Keith Adam says:

    I too have been the subject of a complaint ultimately confirmed by the Board to be vexatious. In this case, I had performed an independent medical assessment. The complaint was raised 18 months after the subject consultation, and immediately following settlement of the insurance claim. I suspect my opinion resulted in the claimant receiving less than he anticipated.

    Whilst ultimately vindicated, I was required to inform relevant bodies of the existence of a complaint during its currency, and almost lost a consulting position with a government authority as a result. AHPRA do not appear to have a process for recognising vexatious claims early, and resolving them expeditiously.

    The consequent overload on the system might in part explain why Boards do not have adequate resources for the serious (and justified) claims.

  4. Ben Bidstrup says:

    Zegm

    This is a different issue to the machinations of a badly organised Government Authority. The change to a national body has not improved matters. They remain poorly funded and lacking in good medical knowledge. Many cases are complex and relate to ethical and treatment issues that of themselves can be subject to much debate. How does an investigator learn about the nuances of say neurosurgery in complex and high risk situations. To state they consult widely is BS. They get if they can an expert who is cheap and will be often given biased information    so the recommendations support the Board’s position. It is about time the Boards are challenged on many of their processes and findings and be made to pay compensation to doctors for using their powers like a star chamber. Remember the Boards are prosecutor, judge and jury.

  5. Mira James says:

    I have observed the misuse of an AHPRA notification first hand – as a patient retaining the services of a private midwife, making informed decisions to decline certain obstetric procedures. The midwife was reported because I exercised a right of refusal. I was threatened with other sanctions (neither attempt suceeded). Bullying under the guise of mandatory reporting is nothing short of misconduct and should be clearly denounced. 

  6. Dr David De Leacy says:

    The legislation under which AHPRA was established by Ms Roxon represents a classic example of an outcome that totally validates Lydon Johnson’s insightful aphorism proffered when he was President of the United States in the 1960s. As usual absolutely nothing has been learnt from history. AHPRA, under the current bureaucratic head is inexorably morphing into a government created Orwellian organisation established especially to punish and shame the vast majority of hardworking ethical doctors for having the temerity to undertake medicine as a career whilst requiring them to pay exorbinately for this ‘privilege’. When is the AMA and the medical profession as a whole going to say enough is enough and do something meaningful?

    “You do not examine legislation in the light of the benefits it will convey if properly administered, but in the light of the wrongs it would do and the harms it would cause if improperly administered.”

  7. Dr John B. Myers says:

     

    Mandatory reporting empowers the decision makers and disempowers the rest and trust, which is why these laws and the self-same bureaucrats exist. The Labour Governments who put this in place have been swept away but the legislation has remained. Zegm is right. Percival Pott, it is because they are totally self-serving under the guise of acting “in the interest of the protecting the public” – not because AHPRA and the Medical Board do not have the process or the staff that they show no discretion and act in the way they do. They are the bullies in the system in which they are above accountability and there are no checks to restrain them such as compensation. As Georgie says, and the replies show, my own experience included, prejudice, loss of jobs, and costs, emotional and financial, escalate because of the “incompetent, self-serving and bullying” actions of the Medical Board and AHPRA. They know it and do it with intent to “punish” those who challenge them. Not only are their roles of registration and disciplinary action conflicting, Joanne Flynn’s call to control “accreditation” is an even greater challenge to democratic liberty, rights and the health of all. The Medical Board investigators and AHPRA add allegations to those made to them. Being prosecutor and judge is perverse and done without shame at all. We need to prevail on politicians to support accountability and compensation. We need informed legislative reform, or a Party for “justice and accountability” and for “a System of Evaluated Decisions” to ensure health and natural justice for all.

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