Investigations and national board decisions
This chapter will consider the investigation and decision making parts
of the complaints process and their administration.
The committee has found that these parts of the process have the most
impact on practitioners and notifiers. This chapter contains two key themes
that have been brought to the committee's attention:
the lack of confidence in the complaints mechanism; and
questions about the decisions of the national boards.
Confidence in the decision making process
The complaints process under the National Law is a mechanism by which
poor performing health practitioners and errors in their practice can be
identified. It is important for patient safety that practitioners, patients and
their family have confidence in the ability of the complaints mechanism to
address practice issues.
It is clear that the current system does not enjoy the full confidence
of many of the notifiers and practitioners who have engaged with it.
Notifiers and the relatives of
Notifiers and the relatives of patients have expressed a lack of
confidence in the Australian Health Practitioner Regulation Agency's (AHPRA)
investigative processes, its competence, staff and management.
One factor that appears to have undermined confidence in the system is a
perception that investigations often do not uncover all of the information
necessary to make an informed decision about the notification.
For example, Mr Maxwell Brown lodged a number of notifications in
connection with medical treatment his wife received.
The Browns believe that, in their case, the board made decisions without the
patient's complete medical records.
As Mr Brown said to the committee:
I always felt that the medical records of my wife that AHPRA
had received were incomplete, and I felt that they should have had the
experience to identify that they were incomplete. They would not accept that.
They did not want to discuss it—no further action. So I got our solicitor to
write letters to people I knew that would have them. I approached those people
myself, and eventually that information came to light. I then took that
information to Melbourne, and they reopened their investigation again because
it was new evidence. From a member of the public's point of view, AHPRA are the
people we go to to identify proper records. I am a farmer and I could see that
this information was missing. These were important documents relating to what
happened on the night of the operation on my wife. Right or wrong, they should
have been in the medical records. They were not.
In the case of Mr Ian and Mrs Rhonda McNees, an independent report by
the Victorian Government Solicitor's Office found, among other things, that:
not all aspects of the notifications were properly considered by
the board was not provided with the relevant information
necessary for them to make an informed decision; and
in some cases the practitioner's account of events was accepted
despite there being conflicting evidence from the notifiers.
Confidence is undermined if notifiers do not believe that the
investigators and the national board will conduct a rigorous assessment of
their notification. A factor that may compound their initial misgivings is
that, after making the initial notification or notifications, there is little
opportunity for notifiers to be involved in the process unless the matter is
referred to a health complaints entity.
Health complaints entities have the capacity to facilitate meetings
between notifiers and practitioners to discuss issues and attempt to resolve
However, the practitioner is often reluctant to engage with the notifier until
the matter has been resolved through the complaints process.
Unlike the health complaints entities, Mr Steve Tully, Commissioner, Health
and Community Services Complaints Commissioner (SA) explained to the committee
that the National Law was not designed to facilitate notifier engagement.
Instead, the National Law assumes that once the notification has been made the
agency and the board will 'go about their business'.
Where notifications are made by consumers concerned about their health
or the health of someone close to them, Mr Tully told the committee:
What they say they want in a complaints process is the
ability to sit [in] on hearings, to eyeball the practitioner, to ask questions
of the practitioner and to face off with the practitioner about their situation
and the impact it has had on their life.
The desire for more active engagement was also highlighted by the
...notifiers commonly see themselves as party to their case and
expect to have an active and ongoing role in the resolution of it, whereas the
system views them as a witness to an allegation of misconduct.
This highlights a fundamental tension in the current complaints system:
notifiers are often looking for a resolution, but the board's primary concern
is whether the practitioner's conduct fell below the relevant standard.
Only if a matter progresses to a panel hearing may a notifier make a
submission; and only then if they have the leave of the panel.
Otherwise, notifiers are only entitled to limited information and limited
As Ms Karen Toohey, Australian Capital Territory Health Services
Commissioner relayed to the committee:
I think there is certainly a sense that the process is
focused on the disciplinary process for the practitioner rather than focused on
the individual's or the consumer's experience.
While the proposed 2017 amendments to the National Law will allow for
greater information to be provided to notifiers, there are no plans for
additional notifier involvement in the process.
Ms Jen Morris, a member of AHPRA's Community Reference Group suggested
...different policies and different procedures should be
applied depending upon whether one is dealing with a lay person's complaint or
that of an employer or another practitioner...
This approach was also supported by some practitioners.
Dr Simon Rosenbaum argued:
I press my argument for a genuine inquisitorial process and
am convinced that most concerns about a medical practitioner...would be laid to
rest after a meeting in a non-confrontational environment... This could be
conducted by a medical practitioner with or without a legal person. I am aware
that this is the typical process in countries like France.
Similarly Ms Kate Greenaway, an allied health practitioner, supported
the proposition that the complainant and the notifier should be treated equally
through the complaints process.
Such a model may also be more consistent with the Australian Commission
on Safety and Quality in Health Care's National Safety and Quality Health
Service Standards which already apply in most places consumers receive
The system is intended to protect the public, but the evidence the
committee received is that some members of the public do not feel like they are
The health practitioners regulated by the scheme have a significant
stake in how it operates. While the committee only received evidence from a
small proportion of practitioners, those that made submissions made their views
Making a mistake, or being accused of making a mistake, as a health
practitioner is stressful, but the stress associated with it appears to be
compounded by the complaints mechanism.
Dr Joanna Flynn, Chair, Medical Board of Australia (MBA), explained the
stress doctors come under when a notification is made against them, saying:
...it is devastatingly stressful for any doctor to be the
subject of a complaint to AHPRA and the board. That is for two reasons.
Firstly, having to answer to the board about your conduct is just the worst
thing you could ever imagine happening. Secondly, doctors have a catastrophic
view of the outcome of those processes. They have a mental model that many more
doctors end up having their registration cancelled or severe restrictions, so
they immediately feel very distressed. And that distress remains until the
matter is closed-and, often, beyond.
The Chief Executive Officer of the Australian Commission on Safety and
Quality in Health Care also noted that doctors are often deeply affected by the
mistakes they make:
There is an expression in health called the second victim,
which is that, when there is particularly a very serious mistake, obviously
there is the patient who has suffered from that mistake, but then also there is
the person or the group of people involved. They carry that with them really
for the rest of their career. There is not a clinician that I know that cannot
tell you nearly every mistake that they have made that they are aware of. So it
is felt very deeply.
Regardless of their profession, practitioners routinely reported a sense
of intimidation—of receiving a notification, of being investigated, of the
Practitioners attributed that fear to the scrutiny, professional
embarrassment and financial hardship that they would experience (or believe
they would experience if they became the subject of a notification) to the
AHPRA administered complaints process.
Some practitioners attribute harm directly to the complaints mechanism
itself. One practitioner submitted that:
A close friend killed himself last year, as a direct result,
not of the complaint itself, but of the complaints process. Financially ruined,
publicly humiliated, and personally devastated, when he could not take the
strain any more, he took his own life, stating his innocence until the end.
Ms Kate Greenaway observed that 'in many parts... it has become a punitive
Dr Rosenbaum said AHPRA's actions were 'overly legalistic, punitive and deny
Dr Rachel Mascord, a dental practitioner, commented that the process 'is
creating an adversarial environment in which patients and doctors are
positioned on either side of a divide'.
The question is whether any process would feel punitive or whether the
existing system is perceived as punitive because of the way the process is
structured or administered.
The Royal Australian College of General Practitioners (RACGP) submitted
that there were problems with the administration of the process:
It is perceived that the current complaints mechanism is more
concerned with the prosecution of practitioners than protecting patient safety
through remediation of the issues that lead to the complaint.
Dr Edwin Kruys, the Vice-President of RACGP elaborated:
...it appears that there is room for a lot of cultural change
within AHPRA. I guess the big issue is that it is perceived as extremely
punitive. You could say that 'if all you have is a hammer then all you see is
nails'. It would be really good if AHPRA had other options, like counselling or
remediation, to solve problems, instead of just going down the punitive road.
When Mr Martin Fletcher, Chief Executive Officer of AHPRA, appeared
before the committee, he appeared cognisant that:
...although our jurisdiction is a protective jurisdiction, we
recognise that...for the practitioner involved it can feel like a punitive
Some people consider it to be punitive because, unless the matter
results in no further action, the only outcomes are formal in nature. As Medical
Insurance Group Australia (MIGA) representative Mr Timothy Bowen expressed:
What we have seen in the national system is a more punitive,
disciplinary approach to dealing with [errors], using cautions to say 'you need
to improve next time'.
But Mr Bowen went on to explain that New South Wales operates quite
The New South Wales approach is somewhat different: it is a
matter of getting practitioners with a senior peer at an earlier stage, talking
through those issues and educating them to make sure it does not happen again.
We think that is a better approach...
Other witnesses concurred with that opinion.
In principle, providing the national boards with powers that may permit
a different approach is an option currently being considered by the Australian Health
Ministers' Advisory Council (AHMAC). Ms Durham advised the committee:
[AHMAC] are looking at amendments that might strengthen the
role for the notifier in the disciplinary process, and powers for national
boards to settle matters, so enabling greatest use of alternative dispute
resolution between practitioners, notifiers and the national board. 
A small number of submitters proposed that advocates be provided by
AHPRA—to one or both parties—or that advocates be permitted to make submissions
to the board in an attempt to support notifiers and practitioners through the
The proponents of this recommendation focused on the support and guidance a
support person could offer through the process.
Mr Gary Clarke, a notifier, stressed that supporting complainants in
preparing notifications is important because:
Obviously if you do not get your points...in order and you do
not specifically identify what the issues are, then you cannot get an
investigation that delivers the right outcome.
The Health Consumers' Council also suggested that consumer groups could
also assist with 'orchestrating reviews and appeals'.
Whilst it was not explicitly stated, these suggestions appear to be
motivated by a perception that the complaints process requires assistance to
The committee was concerned by the evidence it received from both
notifiers and practitioners.
The committee acknowledges and understands the angst, dismay and
frustration of notifiers who perceive that they have not been taken seriously
by AHPRA or consider that their notifications have been mismanaged.
As consumers of health care, patients and their families are invited and
encouraged to take an active interest in their own care. The committee notes
that consumers have a right to comment on or complain about treatment they have
received. Notifications are one of the few ways the board has to identify clinical
practice issues that may need to be addressed.
Consumers have a substantial interest in resolving complaints and it
seems inappropriate that they are marginalised to the degree that they are.
Equally, as the party being regulated, the outcome of the board's
decision often has a significant impact on the life of the practitioner.
The committee is concerned about the effect that the complaints process
is having on practitioners. Whilst having a professional mistake identified is
always likely to be stressful, the committee is concerned by evidence that
suggests the complaints process appears to be administered in a punitive way.
The committee understands that AHPRA's mandate is to protect the public,
but that mandate does not require sanction for each mistake. Witnesses
identified the New South Wales model as placing a greater emphasis on mentoring,
education and conciliation options.
The committee acknowledges that there are circumstances in which the
national boards need to take strong regulatory action, but the committee
considers that, with a broader range of tools, AHPRA may be able to change the
way it administers the process to make it both more rigorous and fair.
However, the committee recognises that these goals are hard to achieve
if the information is not reaching the national boards that make the decisions.
Decisions of the national boards
The national boards can only work with the information they have
available to them. Therefore, the quality of the information that is provided
to them has an impact on the decisions they make.
As noted above, some information can be missing in investigations. This
part will consider the information the boards are provided with and the
concerns of witnesses that have engaged with them.
In particular, the primary concerns raised with the committee have been:
conflicts of interest;
the adequacy of documentation provided to the boards; and
whether board members have sufficient specialist knowledge.
Conflicts of interest
Currently both notifiers and practitioners fear that the process is
being affected by conflicts of interest.
Effective complaints mechanisms provide participants with procedural
fairness. It is crucial that participants within the complaints mechanism are
free from conflicts of interest.
The committee has received evidence which suggests that apparent
conflicts of interest have occurred, or are systemic, in the complaints
An individual submitter provided evidence that, in one instance, an
expert witness contributing to a notification assessment had an apparent
conflict of interest resulting from competing professional interests.
Similar concerns were also raised in confidential submissions.
The employment of 'independent external witnesses' has raised concerns
that such witnesses may have:
a financial conflict of interest to write a report that
aligns with the views of the agency paying for the report, particularly when
they are a contractor who derives income from multiple reports for that agency.
If that is the case, there is a risk that the information being provided
to the board has a particular bias. It is unclear whether the boards have the
expertise to recognise and correct such bias if the advice has been sought to
provide clinical peer expertise that is not otherwise available to the board.
A solution to financial conflicts of interest may be that independent
experts are sourced from, and remunerated by, a central independent entity.
To ensure that the entity is able to retain the most suitable clinical peer
available, the entity would need to be able to provide competitive remuneration
to clinical peers to make it economically viable for practitioners. This would
allow clinical peers with current clinical practice to be retained.
A potentially more insidious problem would be if the decision makers
themselves were compromised. Notifiers provided examples to the committee of
instances where they considered that conflicts of interest arose between
members of the board and an aspect of the notification.
Mr Maxwell Brown notified AHPRA of a potential conflict of interest when
he identified that a member of the board had also provided advice to his
In another instance, it was suggested that a conflict arose between a member of
the board and their senior position within another organisation whose employees
were being investigated by the board.
AHPRA and the MBA have submitted that appropriate processes are in place
to avoid conflicts of interest.
The suggestion that there were conflicts of interest was adamantly denied by Dr Flynn,
...we have very clear conflict of interest policies and
processes, and if there is a situation where too many doctors in a particular
jurisdiction who are on the board know the practitioner who is the subject of a
notification then the matter is referred to another state to be dealt with.
When pressed, Dr Flynn suggested that not prospectively declaring a
material conflict of interest would go against the code of required behaviour
for board members and potentially be grounds for resignation from the board.
However, the consequence of an undeclared conflict of interest of an MBA board
member remains untested.
Documentation provided to the
As has been noted above, submitters have raised concerns about the
adequacy of documentation received by the boards.
Dr Rachel Mascord observed that there could be considerable problems for
practitioners in obtaining the documentation necessary to defend a notification
after a practitioner has left that place of practice.
As will be noted in greater detail below, some investigations can take years to
Another notifier, Mr Garry Clarke, concluded from his experience that:
What [health practitioners] are doing is they are not keeping
medical records. My wife is an example of that. Close to 40 visits over eight
years, and there were lucky to be medical notes for eight to nine visits over
that period of time.
These claims relate to ongoing concerns about whether AHPRA collects all
of the necessary information and speaks to all relevant witnesses before
providing the report and the evidence to the board. It also highlights the need
for rigorous investigations and greater transparency.
Some of the above concerns could be remedied with greater transparency.
Submitters to this inquiry endorsed introducing greater transparency to
the complaints process to 'facilitate impartiality and address the issue of
unnecessarily adversarial complaints'.
Extensive evidence was received from individual practitioners who
outlined the need for improvement to the transparency of AHPRA's assessments,
investigations and decision making processes.
The RACGP have also expressed concern that some of their members had
been provided with limited information about complaints made against them and the
reasons for commencing investigations were not explained to practitioners
The goals in this area are clear. As AHPRA's Community Reference Group
...improvements in the timeliness and transparency of
notification assessment, investigation and decision processes are desirable and
necessary to improve the effectiveness of making a notification as a patient
safety measure, while minimising the burden upon practitioners.
However, practitioners are adamant that transparency in this case should
not be public transparency; at least not until all of the appeal processes have
Notifiers, both publicly and in confidential submissions, requested
greater transparency at every stage of the process.
AHPRA and the MBA reported that they are working to improve the
complaints process, and as part of the progress made over the past four years,
the MBA has 'improved accountability and transparency, including through
introducing quarterly reporting on our performance'.
But as Dr Flynn observed 'we have a big job to do to help people
understand how the process works and to build confidence in it'.
Knowledge of board members
The National Law requires national boards to make decisions about the
management of notifications.
Members of the national boards are appointed by state and territory health
The degree of specialty that exists in the health professions means that the
members of the board, even though some are practitioners, may not be
practitioners with the same professional speciality as the practitioner whose
conduct is under consideration.
Many practitioner submitters—some of whom had been the subject of a
notification—questioned whether board members had the requisite specialty
knowledge to make a proper assessment about specialist practitioners. As RACGP
The Medical Board of Australia is arguably the most diverse
of all 14 National Boards, covering a large range of medical specialties. The
RACGP recognises that this wide scope makes it inherently difficult for the
Medical Board to represent all facets of the medical profession. However, in
order for medical practitioners to receive a fair investigation, all cases
should be assessed by a medical practitioner with in-depth knowledge and
relevant experience in the specialty concerned.
The committee notes that there is already scope to address these
concerns within the existing legislative framework. Dr Flynn explained to the
committee that the boards can already appoint additional members if clinical
peer expertise is required.
However, it was clear that appointing clinical peers to the board was
not routine practice.
In answer to questions on notice, AHPRA dismissed the suggestion that
additional specialist input was required because:
some matters referred to the boards do not relate to a specialist
field of medicine (such as communication, documentation or billing matters);
approximately 40 per cent of registered medical practitioners do
not hold specialist registration and in those cases specialist input would not
necessarily result in more informed decision making;
there are 23 fields of specialist practice and over 60
sub-specialties in the medical profession and ensuring that each decision
making board or committee contained an independent specialist from the same
discipline 'poses challenges to the complaints process in both protracted
timeframes... and increased costs in the complaints process'.
AHPRA also reiterated that it believes that specialist input can already
be obtained where it is necessary.
The committee is deeply concerned about actual or perceived conflicts of
interest. The committee recognises that this is a system that has significant
ramifications for the practitioners concerned and, to a lesser extent, the
families of the patients involved. As such it is important that all parties can
have confidence in the system.
The committee is also concerned about the completeness of the
information being provided to the national boards. The national boards rely on
the information that is provided to them to make a properly informed decision.
If information is incomplete, the board runs the risk of error. They must work
with the investigators and the secretariat to ensure that all the relevant
information is obtained and provided to the board.
Where outside opinions are obtained, the board must be able to justify
why that practitioner was approached and know with confidence that there is no
conflict of interest between the clinical peer providing the advice and the
practitioner whose conduct is in question. The board should be able to
demonstrate, by some independent means that the advising clinical peer was the
most appropriate person.
The evidence to the committee suggests there is an ongoing need to
correct the transparency of the system.
The committee understands practitioners' desire for greater clinical peer
input into the complaints process. The committee was surprised that, despite
the well-known calls from practitioners for greater clinical peer input into
the complaints process, procedures to obtain clinical peer input are not yet
The committee is disappointed that AHPRA did not recognise the benefits
that may accrue from having clinical peer advice provided at the earliest stages
in the process. At the very least, the committee considers that the idea is
worthy of trial.
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