IS THERE any public interest in naming and shaming doctors subject to a professional standards inquiry?
Fifteen New South Wales doctors who have been subject to professional standards investigations are named on the website of the NSW Medical Council (formerly the NSW Medical Board).
Now, with national registration, the names of these doctors are also on the website of the national Medical Board of Australia, including six who had no adverse finding against them.
For more than 20 years in NSW, to encourage the profession to admit to their errors, doctors who were investigated were not named.
However, changes to the Medical Practice Act (NSW) in 2008 removed the obligatory confidentiality of Professional Standards Committee (PSC) hearings.
This confidentiality had been hard fought for by the NSW profession. In a dispute leading to amendments to the Medical Practitioners Act in 1987, the then state government was persuaded of the merits of “in-house” investigations into professional conduct.
A major reason the government accepted the need for confidentiality was that the essence of an inquiry into professional standards was dispassionate appraisal of possible error.
This required, in the interests of avoiding future error, honesty on the part of the respondent.
Such honesty was more likely in a confidential hearing, where respondents were not attempting to protect their public reputation by denying their actions.
Between 1987 and 2008, findings remained confidential, encouraging practitioners to own up to errors, to learn correct procedure or change behaviour and mend their ways.
There was little shame in this educational review process.
Since 2008, 25 PSC findings have appeared on the website of the NSW Medical Board (now Council). Doctors’ names have been removed from two of the findings.
Six findings (including these de-identified reports) record that the practitioner was not found guilty of unsatisfactory professional conduct. In a further four cases, the breach was sufficiently minor that no penalty was imposed.
Four respondents were ordered to complete a course — in medical ethics, communication skills or record-keeping.
The last of those orders was made more than a year ago, as was one order for a Board audit of the doctor’s medical records. One doctor has conditions, which may not be published, in relation to his health.
Of the 25 doctors, is there any public interest in the findings on 15 of them being retained for all time on the websites of the Council and of the National Medical Board?
Must these doctors, including six against whom no adverse finding was made, continue to be dogged by a past accusation?
Surely the default position should be that a doctor’s name not be published unless it is in the public interest.
The Briginshaw principle should apply to these consequences as much as in the assessment of unsatisfactory conduct.
The principle comes from the case Briginshaw v Briginshaw (1938) 60 CLR 336 where the judge said: “The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal” [my emphasis].
Only the names of those doctors with continuing restrictions on their registration should be listed publicly.
Dr Arnold is a former Deputy President of the NSW Medical Board, former chairman of the Professional Standards Committee and a former member of the Medical Tribunal of NSW.
Posted 11 October 2010