Issue 9 / 18 March 2013

A RECENT disciplinary case highlighted the dangers of doctors making inflammatory statements about patients in response to a complaint.

The case involved a complaint about a psychiatrist who had undertaken a review of a patient at the request of the patient’s former employer for the purpose of workers compensation proceedings. Following receipt of the psychiatrist’s medicolegal report, the patient complained to the Medical Board of Australia that some of the statements in the report were inaccurate.

The WA case proceeded to a State Administrative Tribunal hearing where the medical board contended that the psychiatrist had been grossly careless in making the alleged inaccurate statements in his report.

Ultimately the tribunal found that the complaint was not proved and the case was dismissed.

However, the tribunal noted that when the patient’s complaint was sent to the psychiatrist by the medical board, the psychiatrist’s letter of response described the complaint as “vexatious, malicious, inappropriate and incorrect”. His letter said: “This man is currently behaving as he behaved on a number of fronts for many years and I don’t imagine any response would reassure him.”

At the tribunal hearing, the psychiatrist was cross-examined by the medical board in relation to these statements. It was put to him that they demonstrated an antipathy to the patient that provided the context in which the allegedly incorrect statements in his medicolegal report had been made.

The tribunal considered that these statements by the psychiatrist to the board were “particularly unfortunate and ill-advised” and concluded: “No matter how unjustified a complaint might be thought to be, members of the public are entitled to bring their grievances to the appropriate authority, and to have them investigated. They are entitled to be treated with respect. Inflammatory responses respect neither the complainant nor the process.”

It is reasonable to wonder whether the statements in the psychiatrist’s letter of response spurred the medical board into pursuing what were ultimately found to be unfounded allegations against him.

What, then, are the “take home messages” from this tribunal judgment?

First, doctors need to know that complaints against them are part and parcel of practising medicine in the 21st century.

All doctors will receive a complaint at some stage in their medical career. The Australian Health Practitioner Regulation Agency annual report reveals that 3.5% of doctors received a notification about their conduct, performance or health in 2011‒12. This figure does not include complaints made to other bodies, such as state-based health complaint entities, or complaints made directly to the doctor or their hospital or practice.

Nevertheless, it is normal and an expected part of the process that doctors will experience an immediate emotional reaction to the receipt of a complaint. In one study these reactions include feelings of anger (72.5%), depression (65.1%), reduced levels of enjoyment in the practice of medicine (38.4%) and feelings of being shamed (36.4%).

The second key message is that a response to a complaint should always have the primary objective of resolving the matter. The response is not the place to vent anger and frustration about the process, or the complainant.

One solution is to write two responses — one in which you express how you feel about the complaint and the other in which you outline your response to the issues raised in the complaint. Only send the latter to the medical board!

Medical defence organisations play a vital role in assisting doctors in responding to complaints, including managing their emotional response to the receipt of the complaint. We are here to help you vent your anger and frustration in private and confidential discussions.

All those involved in the assessment of complaints, including the medical board, need to be aware of and understand the common emotional reactions of doctors to the receipt of a complaint. While the primary role of the medical board is to protect the public, this does not mean that the needs of doctors should be ignored. Doctors will feel angry and, at times, express their feelings in their response to a complaint.

Doctors are also entitled to be treated with understanding and respect as part of the complaint process.

Dr Sara Bird is the manager of medico-legal and advisory services at MDA National.

Posted 18 March 2013

7 thoughts on “Sara Bird: Venting dangers

  1. John B. Myers says:

    In a letter to me from the Hon. David Davis, Minister of Health, dated 25 May 2011, he stated that section 151(1)(1)of the Health Practitioner Regulation National Law Act 2009 states that National Board may decide to take no further action on a complaint against a practitioner if the board has reason to believe that the notification is frivolous, vexatious misconceived, or lacking in substance. “Nothwithstanding this safeguard, any practitioner who feels that he or she has been the subject of a vexatious complaint is at liberty to pursue compensation for any loss or damages suffered through the civil courts. I hope this information is helpful and thank you for your interest in this matter”.

    From this it is clear that describing the patient’s statement as “vexatious” is not an emotional response, but one acknowledged in law. Furthermore, though boards are, in the words of one medical insurer, bound to execute due process, this does not mean relentless pursuit of every complaint, but due process, i.e. application of sensible decision making. Clearly this is often not the case and as above, is recognised in law.
    Pursuit of doctors by medical Bbards who embelish complaints and fabricate their own is a scourge on the profession, does nothing to protect the public, but is self-serving. The Tribunal, presumably composed of two medical board members and a third tribunal member, at least in Victoria, cannot be independent given the medical board is acting as both prosecution and judge, which the Chief Justice in Victoria, said “is something of which the public would not approve” [The Age 19 November 2008, page 21].
    How can boards and tribunals get it so wrong is the residing question in this case, and in several, perhaps countless instances like it? It surprises me that our medical defence” is so weak as to not detect this.
    A system of evaluated decisions by prospective and objective methods of an independent non-government review body is required to clean up the decision making process in boards, tribunals and courts of so-called justice, in the true interest of society, the public and health practitioners, as has been previously proposed (Myers JB. A System of Evaluated Decisions. Capacity Assessment: Who can decide?. 45th Annual Australian Association of Gerontology National Conference. Brisbane. November, 21-23rd, 2012).

  2. The Saint from Elsewhere says:

    I’ve seen patients who have terrorised the staff into doing whatever they demand because “otherwise they will complain.”
    What we do NOT do enough is to document when patients are complaining about EVERYTHING – “complaining ++++ about wait in Emergency – has been here for 20 mins, including clerking and nurse assesment.” “Heard abusing nursing staff….”
    One can protect oneself and more importantly one’s colleagues by clearly establishing histories of trivial/vexatious complaints so that when the chart is reviewed it is clear that the patient has unreasonable expectations.

  3. Serge Liberman says:

    The message of all this:

    In such situations, keep good, clear and appropriately detailed clinical notes.

  4. Richard says:

    The fact of the matter is that the Medical Board is both incompetent and uncaring. The only thing they excel at is their spiteful approach to medics in trouble. Their philosophy is clearly that any complaint, however ridiculous or even unrelated to medical matters, is worthy of their esteemed attention and the hapless doctor in the crosshairs is another Dr Patel (and what a story that is turning out to be..)
    I know a number of people who have worked inside the Board and are now happy that they no longer do so.
    I know a number of people whose lives have been all but destroyed for NO reason except they have fallen foul of the protracted, tedious but oh so caring Board’s attentions and (this is not an uncommon problem) the envy of some of their colleagues. How many of us are aware of a friend or colleague who has fallen victim to careless, inaccurate or down right dishonest reporting by a so called expert witness?
    Until members of the medical board are held to account for their routinely extraordinarily uncaring and inexplicably tardy “investigation processes”, nothing will change. Unpleasant patients are just an excuse to harass doctors, under the guise of “guiding” them.
    Who are they accountable to?

  5. Rhys Goodey says:

    I find it appalling that the psychiatrist is effectively bullied out of making those remarks, as so many people today are forced to make “apologies” for things they have said that offend the hypersensitive and manipulative, eg David Koch on breastfeeding. Stalinist show trials pandering to the PC. Would love to know more about this patient that caused the psychiatrist to comment thus. I bet he is no dream to live with.

  6. bruni brewin says:

    It is easy to get vexed at a system that favors those in power. But of course it can work both ways. The squeakiest wheel or the one most affluent to pay the piper often overrides fairness. There are people in prison who are circumstantially found guilty who never committed the crime, and there are people that are guilty that manage to get off with an antiquated out of date technicality of the law. Who said life was fair?

  7. Anne says:

    The functions of APHRA have become of concern to many of us. As the authoress of the article reports, all of us will/have be/been complained about. How many of us ever hear of ‘that complaint’ that has been directed at a colleague. We do not discuss these things because we are doctors and we are very proud of ourselves and sometimes rightfully so. So this remains a submerged sore that we all scratch when the time comes and makes our life a misery.
    APHRA is becoming an oppressive body, too willing to listen to apparently aggrieved patients without it seems any regard for the tensions and peculiar difficulties encountered with the ‘difficult’ patient. The result is despondency and discouragement at a time when good doctors are becoming a rare breed. Thus they achieve the dumbing down of medical practice that was the original mandate when they first floated the trial in Tasmania.
    It will take a Federal Parliamentary intervention to stop all of this and that will not come in a hurry.

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