Issue 27 / 20 July 2015

WHAT would you do if you received notice from your hospital that your clinical privileges had been restricted with immediate effect?
What if the decision was apparently made on the basis of “concerns” raised by other staff members about the way you had treated some patients at the hospital?
Many doctors in cases like this, where decisions have impacted on their ability to practise but minimal information has been provided about how the decision was reached, have sought help from Avant. Some cases have gone as far as the Supreme Court to get justice.
Taking issue with the process of reaching a decision is not unusual — if we believe there has been a denial of procedural fairness or natural justice in a decision that adversely affects members, we will argue the point. But why is natural justice and procedural fairness so important?
The High Court Chief Justice Robert French noted that: “There is a tendency in some quarters to regard procedural fairness as a species of ethical ornamentation, a moral luxury which is a drag on efficient decision-making”.
Decisionmakers do, indeed, often demonstrate that they believe this is the case —if the decision is the “right” one, why does the process by which that decision is made matter? Isn’t this just the lawyers making work for themselves by arguing about process?
The process is of fundamental importance. Fairness is at its heart.
Decisionmakers have a legal duty to act fairly and to observe the rules of natural justice when making decisions that affect an individual’s rights. The rules should be followed regardless of the merits of the case.
Implicit in the requirement of procedural fairness is that an unfair process leads to an unjust decision. You only have to look to countries where people are held without charge and convicted without a proper hearing to understand why fairness in decision making is important.
The “hearing rule” is one of the key rules of natural justice. The decisionmaker must give an individual whose rights will be adversely affected an opportunity to be heard. The individual has a right to know the key aspects of the case against him or her, and this requires disclosure of potentially adverse information.
Next comes the “no-bias rule”. The decisionmaker must be impartial and objective, and free from bias or the reasonable apprehension of bias. Decisionmakers should not prejudge a situation or base their decision on preconceived views.
Third, there is the “no evidence rule. This requires that decisions be based on relevant and probative evidence. The Australian Health Practitioner Regulation Agency provides a useful summary of the rules of natural justice.
Although these rules look simple, determining what amounts to a fair process in a particular case can be difficult.
The rules of natural justice are flexible. They depend on the precise circumstances of the case, including the nature and subject matter of the inquiry, and the framework and rules under which the decision is being made.
In a free and democratic society such as Australia, we all expect our rights and interests will not be affected capriciously. If our rights and interests are to be adversely affected then we expect to know why, and to have the opportunity to answer the case against us. We expect decisions to be made by impartial and independent decisionmakers and for those decisions to be based on relevant evidence.
Advocating for procedural fairness involves representing individual doctors, and calling for improvements in regulatory, disciplinary and complaints-handling processes.
Doctors who are under investigation or review (whether an internal organisational process or an external regulatory process) should be given all relevant material under consideration in a timely manner. They must also be given a sufficient opportunity to be heard on matters affecting their ability to practise.
Decisions should be made independently and objectively, on the basis of relevant and cogent evidence.
Only then can we be satisfied that the decision has been made fairly and properly, and is right and just in the circumstances.
Ms Georgie Haysom is the head of advocacy at Avant.

2 thoughts on “Georgie Haysom: Fair’s fair

  1. Roger Paterson says:

    It is very difficult to weigh up the need to protect the public (future patients) vs the need for natural justice. However, at this stage the pendulum is well against the doctors. 

    The time taken for AHPRA to act on a complaint is manifestly excessive, especially when the doctor has been “provisionally” limited in their role as a clinician or supervisor. 

    The questions that needs to be answered in the situation when consideration is given to limiting a doctor’s practice are: “is the complaint relevant to current practice, and is there a clear and present danger to the public?” If not, it is manifestly unjust to penalise someone for an indeterminate time, while the bureaucratic machinery hiccups into action, pending what may never eventuate as a a negative finding against the doctor.

    If the practice or behaviour in question is indeed current, it must surely behove the various authorities to have at least identified the behaviour, such as at an audit or peer review meeting, and required/advised the doctor to correct the behaviour, or at least to explain the behaviour, before provisional punitive action could be considered reasonable.

    If a well meaning observer reports a doctor directly to AHPRA despite the hospital department or college having the situation well in hand, AHPRA may apply a provisional limitation of practice while it painstakingly ascertains the facts.

    It is critical that the process be improved and accelerated. For example, professional colleges/bodies could offer to AHPRA to fast track a ‘show cause’ process, prior to AHPRA’s investigation, and certainly prior to provisional punitive action, in all but the most concerning of cases that might place the public at risk.

  2. Russell Broadbent says:

    I agree with Georgie Haysom’s comments  but find it incongruous that the systemic failure of natural justice and due process in AHPRA and former Medical Board matters have been evident for years – (see the Chesterman Report, Queensland 2013)  yet the indemnity insurers like Avant have been wifully blind and have done nothing at all to challenge such abuses. Had indemnity insurers like Avant and MIPS been active in the defence of their policy holders some semblance of natural justice might have filtered down by now. The recent case of Vega Vega may be an anomaly – but there is no evidence whether the challenge was at the initiative of the insurer or whether the victim  funded the matter. I had the experience of my insurer claiming defending a similar and unlawful determination and action by a Board by injunction or other manouvre was “attacking the Regulator” and the policy requires the insurer to provide defence only! Policy holders expect better from their insurers – but maybe the current multi-billion dollar medico-legal industry is too reliant on failures of natural justice and due process for their continued enjoyment of others misfortunes to protest or intervene on the behalf of Registrants    


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