Conclusions and recommendations
The safety of Australian health care consumers is of paramount
importance. To ensure that all Australians continue to enjoy safe health care,
the complaints mechanism needs to treat both health practitioners and notifiers
This respect requires the Australian Health Practitioner Regulation
Agency (AHPRA) to provide both notifiers and practitioners with clear
explanations about what is happening at each stage of the complaints process,
what information is being provided to the relevant board, what clinical advice
is being provided and by whom, why that advice is being obtained and what the
next steps in the process are. Once a board has made a decision, it is vital
that AHPRA communicates that decision promptly, is able to explain why the
board made that decision and that it acts swiftly to see that the decision is
The committee found that a failure to provide the information and
transparency that both practitioners and notifiers deserve has led to a loss of
confidence in the complaints process.
The committee considers that significant work needs to be done to regain
the confidence of Australian health consumers and practitioners. The committee
acknowledges that the 2017 amendments to the Health Practitioner Regulation
National Law (National Law) are a start towards regaining that trust. The
committee hopes that its recommendations—together with the second tranche of proposed
amendments to the National Law—will help to expedite that process.
Patients and those close to them have a right to comment on the
treatment they receive and they should be encouraged to do so where they have
concerns about adverse incidents.
In this inquiry, the committee heard from a number of members of the
public who were concerned about their health or the health of someone close to
them. The committee notes that these people constitute the vast majority of
The committee notes evidence from the health complaints entities, and
others, such as Carers Victoria, that some notifiers continue to struggle to
identify where complaints about health practitioners should be lodged.
Even if notifiers manage to find the correct entity, notifiers often
struggled to have their concerns taken seriously or be rigorously investigated.
The committee acknowledges that health practitioner regulation can be a
difficult area to navigate and that it can be difficult to understand what
information a notifier should provide and what rights they have in the process.
The health complaints entities advised the committee that they were
working with AHPRA to facilitate a smooth transition between the health
complaints entities and AHPRA in cases that need it. The committee commends
AHPRA and the health complaints entities on their efforts to improve the
process for all potential notifiers.
Once notifiers reach the complaints process administered under the
National Law, they appear to be entitled to little information or involvement. The
committee notes that this apparent isolation from the complaints process is
exacerbated in cases where notifiers consider that not all of the relevant
information has been collected by AHPRA and submitted to the national board, leading
to mistrust and a lack of confidence.
In Chapter 3, the committee recognised that there is a desire for
notifiers to be better informed and be more involved in the complaints process.
The 2017 amendments to the National Law will allow more information to be
provided to notifiers about the status of matters and the rationale for board
Keeping notifiers informed of the progress of matters and allowing them
to comment on that progress will allow greater transparency in the conduct of
investigations and invite notifiers to have greater confidence that a thorough
and fair assessment is being made of their notification.
The committee recommends that AHPRA review and amend the way it engages
with notifiers throughout the process to ensure that all notifiers are aware of
their rights and responsibilities and are informed about the progress and
status of the notification.
In Chapter 2 of this report, the committee noted that practitioners remain
deeply concerned about the prevalence of vexatious notifications. Vexatious
notifications were cited as a problem by a significant proportion of
practitioners that submitted to the inquiry.
The committee notes that when vexatious notifications are accepted,
there can be a disproportionate effect on the practitioners involved.
The committee accepts that some notifications are intentionally
vexatious. In the committee's Medical Complaints in Australia inquiry
(the previous inquiry) the committee recognised that the complaints process
could be used by practitioners to bully or harass colleagues.
Intentionally vexatious notifications, meaning those that are lodged
primarily to bully or harass the practitioner subjected to it, are most often
lodged by other health practitioners.
A distinction may be able to be made between two classes of notifiers:
persons with an immediate interest in the health or wellbeing of the patient
and those whose primary focus is the health or conduct of the practitioner.
In Chapter 3 the committee noted that there was support in the Snowball
Review, and a consensus among witnesses, that notifiers who were personally
affected by the notification should be treated differently to other notifiers.
The difference in treatment may be a restriction on the amount of
information that is provided to a notifier where there are reasonable grounds
to suspect that a notification may be intentionally vexatious.
In its previous inquiry, the committee identified that the national
boards needed a process, method or criteria to identify vexatious complaints.
In that inquiry, the committee was advised that AHPRA was taking steps to
address a number of the committee's concerns. The committee notes that AHPRA
has since established an online complaints portal and that the portal may
assist to manage future vexatious notifications.
During this inquiry, the Australian Commission on Safety and Quality in
Health Care referred the committee to complaint handling policies currently in
place in New South Wales. The New South Wales policy contains a clear statement
of what constitutes a vexatious complaint.
The committee considers that having a framework for identifying vexatious
complaints would be a useful tool in the management of vexatious complaints.
The committee recommends that AHPRA and the national boards develop and
publish a framework for identifying and dealing with vexatious complaints.
The committee notes that legal proceedings can be costly for the parties
involved. All parties should approach the complaints process with a view to
concluding the matter as quickly as possible, having regard to the complexity
of the issues and fairness to both the practitioner and the notifier.
The committee accepts that, in vexatious cases, health practitioners are
required to expend considerable time, effort and money to defend the complaint.
In making this recommendation, it is not the committee's intention to
deter individuals who wish to make a comment about care they have received.
The committee recommends that the COAG Health Council consider whether
recourse and compensation processes should be made available to health
practitioners subjected to vexatious claims.
Clinical peer advice
The process of assessing complaints appears to be opaque. While AHPRA
may have improved processes for including clinical peer input into the
assessment of notifications, evidence to the committee suggests it remains
unclear when clinical input is provided and who is asked to provide it.
In Chapters 2 and 3 the committee considered the issues of triaging and
clinical peer input. The committee recognises that AHPRA and the national
boards believe that appropriate clinical input is already obtained, or is able
to be obtained, where it is necessary.
However, the evidence to this inquiry noted that providing clear
clinical peer advice at the earliest possible point in the process could be a
substantial investment in reducing any vexatious notifications and truncating
the length of time it takes to perform assessments and investigations.
The committee understands that clinical peer advice is usually sought
during the investigations stage. Noting that the investigation stage can extend
for months and sometimes years, the committee considers that clinical peer advice
should be provided at the earliest possible opportunity.
The committee recognises that it may be impractical for the membership
of a board to cover all sub-specialties, but considers that in the interests of
fairness to practitioners and increased timeliness, there is value in the
relevant board keeping a list of peers that may be appointed to the board in
their respective discipline or sub-discipline. When AHPRA becomes aware that a
notification regarding a practitioner from a discipline not represented on the
board will be assessed by the notifications committee at its next meeting, a
peer from the same discipline as the practitioner under consideration may be
asked to attend the initial notification committee meeting to ensure that the
board can obtain the clinical peer input it needs at the earliest possible
The committee recommends that AHPRA and the national boards institute
mechanisms to ensure appropriate clinical peer advice is obtained at the
earliest possible opportunity in the management of a notification.
In Chapter 3 the committee expressed its concern at the potential for
conflicts of interest to emerge. Witnesses informed the committee of cases
where they believe conflicts of interest had emerged between a member of the
board and an aspect of the notification.
A conflict of interest, or the perception of a conflict of interest, has
the potential to greatly undermine confidence in the complaints process. Conflicts
that affect members of the board ought to be treated very seriously.
The committee asked representatives of AHPRA and the Medical Board of
Australia about policies around conflicts of interest and the potential
consequences for breaching them. The committee was informed that members of
boards are expected to self-report conflicts and failure to do so may be
grounds for their resignation from the board.
The committee is concerned that AHPRA's policy for declarations of
conflicts of interest by board members is not sufficiently robust. The
committee considers that AHPRA must take further steps to safeguard the process.
The committee recommends that AHPRA immediately strengthen its conflicts
of interest policy for members of boards and that the Chair of the board should
make active inquiries of the other decision makers about actual or potential
conflicts of interest prior to consideration of a notification.
The committee was also informed that there may be conflicts of interest
between external providers of advice and practitioners subject to
In confidential submissions, the committee was informed that external
advice may sometimes be sought from a practitioner with whom the subject
practitioner may be in commercial competition. In this circumstance the
committee considers that the advice provider would have a conflict of interest
and would be expected to return the brief. However, some submitters have
suggested to the committee that this does not always occur.
It was also suggested to the committee that remuneration to provide a
report may lead the advice provider to seek to confirm the suspicions of the
board in the hope of obtaining future work. Submitters suggest that in this
case the advice provided may indicate that the practitioner is a greater risk
to the public than they actually are.
The committee has no way of knowing how prevalent either of these forms
of conflict of interest is, but the confidence of some practitioners has been
undermined because they believe it is an issue. The committee considers that
developing a transparent method to determine when external advice is obtained,
who it is obtained from and ensuring that it is free from conflicts of interest
would be beneficial.
The committee recommends that AHPRA develop a transparent independent method
of determining when external advice is obtained and who provides that advice.
The committee received some evidence that one of the challenges to
obtaining adequate clinical peer advice was that it may not be financially
viable for expert practitioners to act in that capacity.
Instead, the lesser remuneration available was more likely to attract
retired or former practitioners, potentially with less current clinical
practice, to provide advice to the board.
The committee considers that AHPRA should make a competitive level of
funding available to an independent entity to strengthen the clinical peer review
process to attract esteemed practitioners in their field to advise the board.
The committee recommends that AHPRA consider providing greater
remuneration to practitioners called upon to provide clinical peer advice.
Using the process to support practitioners to manage their own risks
When adverse events occur, practitioners should be encouraged to admit
their mistakes and identify how they, and their colleagues, can learn from them
in the future.
The evidence the committee received from practitioners was that the
current complaints process does not support this outcome.
To the extent that a cautious approach supports patient safety, it is to
be encouraged. However, the committee also acknowledges that if a mistake is
made and a notification follows, the practitioner should, to the greatest
extent possible, be encouraged to learn from that mistake to ensure it does not
Practitioners do not consider that this is currently how the national
boards work. The evidence the committee received indicates that even the boards'
lightest touch response, a caution, can affect a practitioner for years to
This is especially the case where regulatory action is published.
Some witnesses suggested to the committee that education, mentoring and
conciliation were all options that should be available to the national boards.
The committee understands that these are already options that are available to
national boards. The question is whether the options that are currently
available are being harnessed to achieve the best possible outcome for the
public and the practitioner involved.
The committee strongly supports protecting the public and taking strong
regulatory action when the circumstances require it. However, the committee
considers that in other circumstances, education and mentoring, together with a
greater emphasis on conciliation could be used to manage risk to the public and
The committee recommends that AHPRA formally induct and educate board
members on the way the regulatory powers of the board can be used to achieve
results that both manages risk to the public and educates practitioners.
Guidelines and policies
In Chapter 4 the committee has noted that questions were asked about the
completeness of AHPRA employees' understanding of the policies AHPRA
administers. In particular, chiropractors and single expert witness
psychologists raised concerns about specific policies that impact on their
In the case of chiropractors, the committee received submissions that
indicated that staff were not familiar with the detail of advertising
Similarly, evidence received from single expert witness psychologists
suggested that AHPRA officers were also unaware of the Psychology Board of
Australia's policy on investigations into notifications about single expert
witnesses or of other external policies, such as Standing Orders of the Family
Court of Western Australia.
The committee accepts that not all staff members can be familiar with
all policies. However, specialist staff members administering notifications
should be familiar with the policies relevant to the profession.
The committee recommends that AHPRA conduct additional training with
staff to ensure an appropriately broad understanding of the policies it
administers and provide staff with ongoing professional development related to
the undertaking of investigations.
In Chapter 4 the committee also noted its concerns about AHPRA
progressing notifications against psychologists and psychiatrists who were
acting as single expert witnesses in family law proceedings.
AHPRA assured the committee that AHPRA and the Psychology Board of
Australia had always fully complied with the psychology board's policy that notifications
about practitioners acting as a single expert witness are placed on hold until
the conclusion of the proceedings or leave of the court was obtained. This was
contested by groups representing practitioners.
This issue was one of a number of examples throughout the inquiry where
AHPRA seemed unaware that practitioners held an alternate perspective. The
committee found this to be concerning. However, the committee understands that
AHPRA will meet with the groups representing the single expert witnesses to
discuss the issue.
AHPRA and the Association of Family and Conciliation Courts (Australian
Chapter) agree that it would be highly beneficial if all notifications
regarding these practitioners were administered in accordance with the policy.
Reports from practitioners that notifications are being progressed,
despite the policy, suggest that a stronger form of regulation may be required.
The committee recommends that the COAG Health Council consider amending
the National Law to reflect the Psychology Board of Australia's policy on single
expert witness psychologists acting in family law proceedings.
Appeals processes are important to ensure that all decisions are made
properly and according to law. In Chapter 4 the committee noted that the
evidence to this inquiry indicated that further reform was needed in this area.
In this inquiry, practitioners revisited the issue, raised in the
committee's previous inquiry, of whether a caution issued by the relevant board
should be subject to an appeal. The committee notes that all other board
decisions are subject to an appeal and supports treating cautions in a
consistent manner to other decisions made by the national boards.
The committee recognises that while a caution represents the relevant
national board's lightest touch regulatory response, it can still have a
substantial effect on a practitioner for years to come. The committee
reiterates the views it expressed in the previous inquiry—consideration should
be given to making a caution an appellable decision.
The committee recommends that the COAG Health Council consider making a
caution an appellable decision.
Considering the equities in rights to appeal, notifiers informed the
committee that an inequity exists between the rights of practitioners and those
of notifiers. Under current arrangements, notifiers can only approach the
National Health Practitioner Ombudsman and Privacy Commissioner whilst
practitioners may approach the relevant tribunal.
The committee considers that there is benefit in examining whether
notifiers should be granted standing before tribunals.
The committee recommends that the COAG Health Council consider whether
notifiers should be permitted to appeal board decisions to the relevant
All witnesses to this inquiry agreed that the complaints mechanism
administered under the National Law should be timely, clear and fair to both
practitioners and notifiers.
In Chapter 4, the committee expressed its concerns about how long the
process can take in some cases. The committee considers that taking weeks to
send a letter after the board has made a decision, or years to conduct an
investigation when there is a clear statutory requirement that the action be
done as quickly as practicable, is simply unacceptable.
All organisations must work within their available resources, but the
lack of timeliness to resolve some cases indicates that something must change.
The current process has now been in place for almost a decade. In that
time AHPRA has been advised on multiple occasions that it must make shortening
its timeframes for all cases a priority. Based on the evidence the committee
received, AHPRA has failed to address these concerns.
The committee urges AHPRA to take all necessary action to shorten its
timeframes, including whether it has the appropriate range of powers and
The committee recommends that AHPRA take all necessary steps to improve
the timeliness of the complaints process and calls on the Australian Government
to consider avenues for ensuring AHPRA has the necessary additional resources
to ensure this occurs.
The committee recommends that AHPRA institute a practice of providing
monthly updates to complainants and medical professionals whom are the subject
This inquiry has revealed that practitioners and notifiers have lost
confidence in the AHPRA administered process. The answer to restore confidence
in Australia's complaints process lies in its administration.
It is not sufficient that AHPRA is confident that its processes are
robust. Everyone who uses the complaints process must be able to have
confidence that the system is fair, rigorous, transparent and timely.
The above recommendations are intended to assist AHPRA reorient the
process to effectively manage risk while at the same time assisting and
engaging notifiers and supporting practitioners into the future.
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