OPINION by Colin Rattray-Wood: A couple of years ago AHPRA declared that it was attempting to introduce the publication of complaints against medical practitioners immediately upon receipt and before any assessment or investigations were undertaken. There is no procedural fairness in the Regulator’s proposal (RACSi) which does not seem to be consistent with “innocent until proven guilty”. For a complicated case of significance to the community it could even be said that publications prior to trial could poison the jury pool and reduce the chance of fair trial.
The Regulator’s proposal triggered a raft of submissions from the numerous organizations including the AMAii;iii, AMAQiv, RACGPv, Avant Mutual, Queensland Law Society and the Australian Association of Psychologists, however the Senate Standing Committee on Community Affairs supported AHPRA’s position in a report in April 2022vi.
This legislative change has been passed in Queensland in October 2022vii. I have some concerns that introducing new legislation in Queensland is a technique that has been previously utilized to pass dodgy legislation with Queensland being the only state in Australia that does not have an Upper House. This Legislation will now be automatically adopted by every other State except WA which passes it’s own corresponding legislationviii.
The Regulator has published statements that it is a superlative authority in recognizing vexatious complaints despite no independent evidence supporting this and that 1% only or fewer complaints are vexatious. Given the predisposition of the community it seems quite ridiculous that only 1% of complaints are vexatious.
The Regulator also acknowledges how personally damaging it can be to a health practitioner to live through even a vexatious complaint and yet persists without a single justification nor any evidence of enhanced public safety for this new and clearly punitive direction.
I am very concerned about the implications of this legislation to the practice of Medicine in Australia. I could produce many examples of possible outcomes not envisaged by the Regulator (or more concerningly understood and predicted by the Regulator and disregarded), but I think there are several general examples that are illustrative from my experience over the last 30 years in clinical practice.
Approximately 20 years ago it was proposed to publish the side-effect rate of consultants in public hospitals. This proposal was by the naive who did not understand environment.
Public hospitals perform a range of medical treatments, but it is a place where the best specialist doctors congregate and the most serious and most complicated medical cases gravitate. It is the nature of the hierarchical training structure that junior doctors perform relatively safer surgeries but call in the more senior and experienced doctors whom they would then assist performing the most difficult and life-saving procedures. The most senior doctor is the one who carries the risk and against whom any complications would be recorded.
Using trauma as an example, the worst cases are taken to the public hospitals where life-saving procedures are performed by the most experienced surgeons, anaesthetists and intensive care specialists. It is the very nature of these conditions that leads superlative specialists to have a higher rate of complications and the very nature of the best surgeons and anaesthetists that leads them to be involved in the best and most complicated surgeries.
The interpretation of “complication” is important. A minor complication after a prolonged life-saving surgery could be viewed as (1) an error because a complication occurred or (2) great work that the patient is still alive with such a minor complication.
Because the best surgeons and anaesthetists attend the worst conditions, is a strange corollary that the best medical specialists in public hospitals can have high complication rates. This in no way directly reflects the incredible high quality of their work. In fact, I would say that a surgeon with a very low complication rate is less likely to be performing the most difficult surgeries.
I do not blame the trauma surgeons and the anaesthetists in the public hospitals for suggesting that if their individual complication rates were going to be published then they would simply leave public practice as a mechanism self-protective of their reputations.
I have unfortunately seen a single case of a senior specialist on duty refuse to attend because he didn’t want his reputation mired by the case, even though they were employed and paid to be on-call. I predict this kind of shenanigans will increase if AHPRA's proposed legislation to name and shame health practitioners without justification is ratified.
I would like to acknowledge that this example of trauma in no way diminishes the exceptional work of physicians in medical emergencies and I would suggest the same argument applies.
Junior doctors compete for training positions every year in order to advance in their profession. I can describe from my own involvement with the Regulator over the last five years the difficulties of being “under investigation” even prior to any outcome.
While under the cloud of and AHPRA investigation for the last five years I have not been able to obtain regular employment. I have lived out of the boot of my car and stayed in motels and flats doing unpalatable jobs in sites very distant from my home because that’s the only work I’ve been able to get commensurate with my skill set. I have been knocked back for every employment contract for which I have applied and I have emails describing clearly that the sole reason was “being under investigation”. It certainly felt like “guilty until proven innocent”.
One of the prerequisites of enrolling in an advanced training position or undertaking postgraduate clinical qualifications is to have an employment contract and guaranteed work for the duration of each segment of training (usually 6-12 months). A weird corollary is that equivalent casual or even identical locum work cannot be credited towards training time.
Another interference in life is that without an employment contract it’s nigh on impossible to get a home loan.
Imagine the implications of a junior doctor being threatened by a patient with “do what I want or I will report you to AHPRA.” The impact on a junior doctor’s professional development would undoubtedly be to exclude them from a training position the following year because there would be other candidates not “under investigation”.
It is wrong that a valid complaints process can be weaponized in such a way. It is also wrong that a junior doctor can face the ethical dilemma of protecting themselves or protecting the patient (by not acquiescing to an unreasonable demand which could be more dangerous to either the patient or those generally in the doctor’s care).
I am expert in custodial medicine. I faced many ethical dilemmas working in custodial environments but I am proud that because of my seniority I came to the best conclusion available every time.
There was one instance where I was blackmailed by a patient who informed me that his wife (who was an enrolled nurse) had researched on the Internet and decided that her husband required high dose opiate medication such as morphine or methadone. Current scientific evidence would suggest that these treatments were inappropriate for him and potentially hazardous.
It is also the nature of a custodial environment that providing these medications to him could have made him a target for those who would wish to take from him these highly desired medications which have currency in a prison environment. The patient was neither large enough nor fit enough to defend himself.
I proposed instead alternative treatments that had been proven by medical research to better treat his condition and that would not have put him at significant risk in that environment. Thus, I came up with a better plan and I refused his request.
His wife acted as a confederate outside the prison environment, collaborating with him and punished me by reporting me to the Regulator. There has to be something very wrong with a prisoner threatening any professional inside a custodial environment and using people outside the environment to effect a threat.
Despite the patient’s very negative attitude he participated in the treatment plan recommended by myself and not surprisingly improved dramatically. Within a couple of months he was functioning much better and his participation in medical and allied health consultations was substantially more positive. His improved function was noted around the prison yard.
It was six months after the original threat that I was notified by the Regulator that the patient’s wife had used her knowledge and position as a nurse to report me. I notified this behaviour to the Victoria Police who investigated this as case of “extortion”.
A prolonged investigation ensued by AHPRA (over 12 months), again interfering with any opportunities I had for professional advancement through advanced training and regular employment. It made no difference to the interference this investigation had in my life (and my family) that AHPRA found that I had acted well above the level expected by AHPRA of a practitioner in my position.
A custodial environment is a place where an environment that attracts overseas medical graduates and where junior doctors are invited to train. Prison doctors often work relatively isolated from colleagues, placing them at greater risk.
Custodial environments are very often an environment where patients have agendas different to the normal motivations of non-incarcerated members of the community. It is important to provide custodial patients with what they NEED, which sometimes can be different to what they WANT. Thus saying “NO” to ill informed, unreasonable or even potentially hazardous requests can be good medicine.
Weaponizing the Regulator’s complaints process is dangerous to both the health practitioner and the patient.
From the WA Primary Health Allianceix
"Doctors have a critical role in the identification of physical abuse, particularly in pre-verbal children, who cannot report what has happened to them. Physical abuse may result in soft tissue injuries (bruises, abrasions and lacerations), fractures, burns or brain injuries (abusive head trauma). Abuse may result in one injury or multiple injuries occurring over time.
Approximately 25 percent of children who are subject to abusive head trauma or other serious forms of physical abuse, have had prior presentations with minor injuries (sentinel injuries) that were not recognised as being suspicious. Detection of sentinel injuries in young children is extremely important, so that interventions can be put in place by the Department of Communities, to prevent further harm."
With approximately 1% of children's presentations for injuries being from non-accidental injuries, vigilance is required by primary health practitioners like doctors, nurse practitioners and dentists. It is sometimes necessary to report suspicious injuries for further investigation. This need to be certain is not an accusation, but it is very difficult for many parents to see that. Sites like "RateMds" contain many negative reviews about Doctors who have felt compelled to raise these topics or even make reports.
It will become a difficult dilemma for some practitioners to balance their responsibility of mandatory reporting V's the risk of publishing a complaint for doing so. In my experience with many of these cases, the complaints from aggrieved parents are never accurate nor balanced. They are usually vitriolic.
Evidence Based Medicine
It is incumbent upon a medical practitioner to provide the patient with correct scientific information relevant to their situation. Thus, we cannot with hold from a person that smoking and obesity damages their health, smoking causes poorly outcomes in pregnancy, failure to address eyesight and hearing problems in children delays development with possible long term consequences, vaccinating children works, etc.
I have dealt with some very complicated people with fixed beliefs not consistent with current scientific evidence. It is my responsibility to provide evidence impartially. I do not expect to be exposed to a publicized notification for “fat shaming” or accusing a person of “irresponsible parenting” because AHPRA find this “reasonable” to protect the public prior to any investigation of my significantly educated and experienced advice.
It can be part of a medical professional's role to provide medico-legal reports, either routinely (such as Centrelink or Workcover certificates) or at the request of insurance companies, etc. or because the professional chooses to perform medical assessments where the client may be a third party such as a Court. In authoring a report it is necessary for health professionals to be devoid of emotion and not to advocate for the patient. These situations are often emotionally charged for the patient who may have a range of competing agendas at this time. Patients do not always understand that the health professional’s primary responsibility in this case is to the Court, not to the patient. Medical terminology can be used which is not always completely understood by the person who I have frequently seen people take offense due to misunderstanding of either the process or the terminology.
It is not reasonable to expect a health professional to express an expert opinion in an emotionally charged situation where the patient is threatening or expresses litigious intent if there is not reasonable protection for the health professional.
I contend that there has already been a substantial change in the form and quality of medical notes since the revision of the Medical Records Act which allows patients access to their doctor's medical records or their children's medical records.
It can be useful to record working hypotheses, differential diagnoses, questioning of diagnoses proposed by other health professionals, the appearance and demeanor of the patient or parent and even things stated during the consultation. Patients do not always understand medical processes and I have seen examples where patients have been offended by medical records because they either remember things differently or think that the medical professional’s focus was not aligned with their primary concerns. This could be entirely appropriate in the case where a medical practitioner may detect something serendipitously not related to the reason for presentation – sometimes these are the best diagnoses !
Health professionals face very difficult decisions if a patient can access the consultation record, complain to the National Regulator and expect immediate publication of their complaint.
I know of two distinct cases where General Practitioners were subject to notifications alleging harm to persons they had never seen nor treated. In both cases AHPRA applied a policy of “reverse onus”. It was not the patient’s responsibility to prove they were harmed, but rather the doctor’s responsibility to prove they caused no harm to someone who had never met nor seen as patient. It’s easier to prove you have seen a patient, no documentation exists to prove you have not seen someone. Both cases took over 6 months to complete. There were no ramifications for either notifier of the two fraudulent notifications.
What an unreasonable dilemma a senior doctor faces where a vexatious client or relative (or confederate outside a prison) can impede the advancement which that doctor has worked hard for decades to achieve.
What an unreasonable dilemma a junior doctor faces when a vexatious client can destroy their immediate future professional prospects for making a decision to do nothing more than implement best medical practice, whereas a doctor who simply acquiesces and gives the patient what they demand can avoid a negative consequence by “keeping their slate clean.”
Many complaints against doctors are made by colleagues, business partners in dispute or domestic partners over issues not related to healthcare. A publication of a notification also leaves open the possibility of weaponizing the complaints process to undermine the reputation of a business rival.
I’m sure there are many more examples that could be applied to demonstrate the negative consequences of AHPRA’s proposal which has now become Legislation. AHPRA has oversight of Nurses and most Allied Health professionals and ambulance paramedics. They too are at similar riskx for all the same reasons.
I think the negative implications of this legislation are potentially very significant and far outweigh any proposed benefits. The changes have been applied without proof of benefit although AHPRA admits it’s existing processes cause personal harm.
I would like to seek as many comments as possible from other health practitioners drawing upon their experiences detailing similar situations where they envisage this Legislation could impact negatively on the good people in our community who have trained hard and now work at the coal face to deliver improved health outcomes to patients.
Dr Colin Rattray-Wood