“I was the victim of what I considered were two vexatious reports from a colleague. Both notifications, which contained multiple untrue accusations to AHPRA [Australian Health Practitioner Regulation Agency], were found to be without foundation, and both had been done under the guise of ‘in good faith’ reporting, which gave the reporting doctor protection and immunity. Considerable harm was done to my reputation, my family and my practice, and it cost the community a large amount of money to investigate.”

THE improper use of the complaints process has been an ongoing issue for Avant members for several years. It continues to be a concern, as called out in the recent Senate Community Affairs References Committee inquiry into medical complaints. The comment above is one recent example from an Avant member; in this case, the complaint was made by another doctor.

Of particular concern are cases where there does not appear to be a patient safety issue, where the complaint appears to be motivated by something else. In such cases, complainants may be dissatisfied with the outcome of legal processes (such as workers compensation or Family Court matters, where the complaint is against the medical expert who provided a report), or they may be seeking retribution from the health care professional, for example, for not prescribing a Schedule 8 drug. Other scenarios include a relationship breakdown (personal or professional), a turf war between competitors, or simply dislike of a new doctor in town or the way they practise.

Regulatory agencies and complaints bodies have the power to dismiss complaints in appropriate circumstances, including when the complaint is vexatious. Often, our members ask us why the regulator or other complaints body didn’t dismiss their case on this basis, when they have the power to do so.

Partly, it depends on what is meant by a vexatious complaint. The ordinary meaning of vexatious is “causing or tending to cause annoyance, frustration, or worry”. But the legal meaning is different.

Vexatious is used in many pieces of legislation. It usually appears as part of a legislative provision, and gives power to judicial and administrative decision makers to dismiss proceedings and complaints on the basis that they are “frivolous, vexatious, misconceived or lacking in substance”.

The legal definition of vexatious is narrow, and the threshold for whether a legal action or complaint is vexatious is high: it has been interpreted in the case law as “so obviously untenable” and “so clearly untenable that it cannot possibly succeed”, such that it constitutes an abuse of process.

The number of complaints to regulators and other bodies that fall within this legal definition is likely to be very small. In this type of complaint, there is no real substance to the complaint and it is made without good intent, for personal reasons, rather than disclosing a risk to patient safety.

By way of illustration, the Victorian Civil and Administrative Tribunal recently granted an “extended litigation restraint order” against a patient, based on an application from four doctors. The doctors had been the subject of more than 30 complaints to the Health Complaints Commissioner and applications to the tribunal, in relation to medico-legal reports they had provided about the patient.

To make the restraint order, the tribunal had to be satisfied that the person had “frequently conducted vexatious proceedings, either against a person or other entity, or in relation to a matter”.  The tribunal accepted the submission by the doctors that the proceedings were an abuse of process, and were commenced without reasonable grounds to harass and annoy the doctors. The tribunal made the orders based on the “persistent, repetitive issue of proceedings regarding identical or marginally dissimilar subject matter in the face of repeated indications from the commissioner and the tribunal that these proceedings are doomed to failure”.

While such cases seem clear-cut, dealing with the less obvious cases is likely to be a matter of ongoing debate. The Senate Committee acknowledged that “vexatious complaints are not always readily apparent,” but was “not convinced that AHPRA’s processes are adequate for the purpose of identifying complaints made vexatiously”.

We suspect that if a complaint about a doctor is made by another doctor, and the complaint mentions a risk to patients, more weight is given to that complaint by the regulator. While there are always two sides to every story, we have assisted doctors to respond to complaints that the doctor believes have been made for improper purposes, dressed up as a patient safety issue. A regulator charged with protecting the public may be hard-pressed to ignore such a complaint where it has been made by another health professional.

In our experience, the number of cases where complaints are made for an improper purpose is small. But as the Senate Committee report recognised, these cases can have a devastating impact on the practitioners involved, their professional reputation, their practice and their families. In our experience, if a complaint is made by a peer or a colleague, the shame and humiliation associated with the complaint is magnified. These effects cannot and must not be underestimated.

We acknowledge the AHPRA commitment to commissioning research on these types of complaints in order to try to understand how and why people make them and what can be done about them. The Medical Board of Australia has said it will strengthen the code of conduct and establish a benchmark to enable it to take further action against a practitioner who makes a complaint purely to damage another registered practitioner. This raises the question whether this means that we will now see the board take disciplinary action against a practitioner who makes a complaint of this nature.

The language to be used in the code is also important: given the difference between the lay meaning of vexatious and the legal definition, we would suggest that the word vexatious not be used. Instead, a better description is the use of the complaint process for “inappropriate or improper purposes”.

It is important that we have a complaints process that is transparent and fair so that it has the confidence of the profession and the public. But it is important that the complaints process is used for proper purposes and not by people who have an axe to grind.

Georgie Haysom is the head of advocacy at medical defence organisation, Avant. She is a lawyer by background with extensive experience in assisting medical practitioners in a wide range of medico-legal matters.

 

To find a doctor, or a job, to use GP Desktop and Doctors Health, book and track your CPD, and buy textbooks and guidelines, visit doctorportal.

 


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5 thoughts on “Vexed problem of improper complaints

  1. Ray Hyslop says:

    Much is to learnt from home visits as to how the patient and family lives. Coughing children surrounded by filled ashtrays!

  2. Anonymous says:

    Ms Haysom’s article highlights the problem of vexatious complaints, made under the cover of mandatory notifications. and the serious and sometimes devastating consequences for the individuals, who are the subjects of the complaint. Mandatory notifications are made for all the reasons mentioned in the article, but are also used to pursue personal quarrels and a way of resolving with human resource management issues, often to rectify poor appointments. A medical board judgement of incompetence or incapacity is a powerful weapon in the hands of an employer and may bypass the need for formal dismissal procedures.
    It needs to be understood that this misuse is quite dishonest, so that measures such as changing the code of conduct will make no difference to the incidence of these notifications, which are unprofessional and and should not be tolerated.

    The key to resolving the issue is for medical boards to be aware of the possibility that a notification may not be made with the best of intentions and to balance this against the dominant cancer for patient safety. They should try and understand the context of the notification and to look critically at reports of investigations from employing organisations, which are often not skilled at impartial and competent investigations. Reports of independent experts on mental capacity should not be ignored.

  3. Anonymous says:

    Employers or other medical practitioners who make “inappropriate or improper purposes” complaints should be subject to disciplinary proceedings if the complaints are found to be for “inappropriate or improper purposes”. I have heard of these type of complaints being used by employers to silence or intimidate physician employees and by physicians to frustrate physician competitors.

  4. Anonymous says:

    Vexatious complaints may be small in number but the statement that they cause a great deal of harm is very true. Another type of complaint I have seen, are those submitted by personal injury solicitors to gain an early (free) advantage for their client and to intimidate the medical practitioner early so that he or she is more willing to settle quickly.
    The only (imperfect) solution is for an early investigation but sometimes the investigators are not trained in how to investigate properly. Sometimes the investigators do not approach the investigation with an assumption of “innocence” so that the complainant is believed implicitly from early on. There can then be a reversal of proof. Some investigators don’t understand that hearsay is not proof and is no foundation for an adverse finding.
    In relation to those complaining after medico legal evaluations, a fundamental problem is that there is no patient involved.

  5. Anonymous says:

    Unfortunately, there will be people who would make such vexatious complaints no matter what. But a way to limit this further is if that complaint is proven false, the person who made such complain should be held liable for any cost involved and any harm done – compensation and personal / public apology should be done.

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