The complaints process as a tool of harassment
A key focus of this inquiry was the ways in which the medical complaints
process in Australia, particularly that run by the Australian Health
Practitioner Regulation Agency (AHPRA) and the medical boards, may have been
used as a tool of harassment within the medical profession. The committee
received a considerable amount of evidence suggesting that one form of bullying
and harassment within the medical profession is for one practitioner to lodge a
notification against another with AHPRA, possibly leading to an investigation
and findings against the latter.
This chapter will outline AHPRA's complaints process, identified by
submitters as being vulnerable to be used for the purpose of bullying and
harassment, and the option for the review of AHPRA's decisions through the
National Health Practitioner Ombudsman and Privacy Commissioner. The chapter
will then discuss the concerns with this process as identified by submitters
and witnesses to this inquiry, including the lodging of vexatious complaints;
timeliness; transparency and communication; conflicts of interest; qualifications
of the investigators and the use of benchmarking.
make a complaint (also called a notification) about a registered health
practitioner's health, performance or conduct. The management of these
notifications is a joint responsibility of AHPRA and the relevant National
AHPRA is responsible for investigating registered health practitioners and
providing information for the National Board to consider in making its
Different National Boards have delegated some of their decision-making
to their State/Territory committees and AHPRA officers. There are a number of
possible stages in the notifications process and they do not need to be completed
in a linear sequence, nor does every notification go through all the possible
stages. Many notifications are closed after assessment.
In New South Wales, complaints against health care practitioners are
handled by the Health Care Complaints Commission. These complaints are handled
in a process similar to those received by AHPRA.
In Queensland, the Office of the Health Ombudsman is responsible for
managing serious complaints relating to health practitioners, and determines
which complaints go to AHPRA and the National Boards after assessing their
severity. AHPRA must then refer back to the Office of the Health Ombudsman any
complaint where, during investigation, a suspicion of professional misconduct
Decisions made at the state level in New South Wales and Queensland
regarding a practitioner's conditions of practice or registration will be
communicated to AHPRA for inclusion on the AHPRA public register of health
AHPRA's notification process can be seen illustrated in Figure 2.1,
noting that interim or final action can be taken at any point in the process.
Figure 2.1 – AHPRA notification process
Source: Medical Board of
Australia, Nursing and Midwifery Board of Australia and AHPRA, Submission
21, p. 15.
In the Acceptance stage, the notification is received and a preliminary
review is undertaken to confirm that the matter is grounds for notification,
that it relates to a registered health practitioner (or student) and whether it
could also be made to a health complaints entity.
Generally, at this point the practitioner about whom the notification has been
made will be asked to respond, unless the issue relates to a matter that the
Board cannot deal with or AHPRA is concerned that the notification raises
issues that might pose a serious risk to the public, in which case the relevant
National Board can take immediate action to protect the public.
Once a notification has been accepted, it enters the Assessment stage.
AHPRA may ask for more information, and will usually send the relevant
practitioner a copy of the notification unless it would prejudice the
investigation or place a person at risk. AHPRA presents the information to the
Board for consideration, and the Board can either close the notification with
no further action taken, propose to take relevant action (such as cautioning
the practitioner, imposing conditions on their registration or accepting
undertakings from them),
or refer the matter to the next stage of Investigation, Health Assessment or Performance
Assessment. AHPRA aims to complete the Assessment stage for each notification
within 60 days. Proposing to take a relevant action, however, can extend that
timeframe, since the practitioner will be given the chance to show cause as to
why that action should not be taken.
If the Board is not satisfied with the amount of information it has been
provided with at the Assessment stage, it can refer the notification back to
AHPRA for Investigation, Performance Assessment or a Health Assessment.
Investigations are carried out by AHPRA officers and seek additional
information to aid the Board in its decision making. This information can take
many forms, including additional information from the notifier and/or
practitioner, information from other health practitioners involved, independent
expert opinions or other information such as Medicare data or police records.
Once the investigation is complete, the Board seeks to form a reasonable belief
as to whether the practitioner has behaved in a way that constitutes
unsatisfactory professional performance, unprofessional conduct or professional
misconduct, or if they have a health impairment. If the Board cannot make such
a judgement, it may decide to take no further action. AHPRA's aim is to
complete each investigation in six months, but it notes that complex
investigations make take longer. At six, nine and twelve months, each
investigation is audited to ensure that it is proceeding appropriately.
A Health Assessment is undertaken if the practitioner's health is
suspected to be impaired and impacting their professional performance,
particularly as it relates to patient safety. Practitioners have the right to
make submissions to the Board as part of the Health Assessment stage and the
results of the assessment are discussed with them. Boards have a range of
options for action after undertaking a health assessment, including taking no
further action; cautioning, accepting an undertaking from, or imposing
conditions on, the practitioner; referring the matter to another entity;
investigating further; requiring a Performance Assessment; or referring the
matter for hearing by either a panel or tribunal.
A Performance Assessment is carried out by one or more independent
practitioners to assess the knowledge, skill, judgement and care demonstrated
by the practitioner. As with a health assessment, the results are discussed
with the practitioner, and the Board has the same range of options open to it
at the assessment's completion.
Matters relating to a notification about a health practitioner can also
be referred by the Board to a panel – either a health panel if the practitioner
is believed to have an impairment affecting their performance or a performance
and professional standards panel if a Board believes that the practitioner's
practice or professional conduct may be unsatisfactory. The panel then has the
same powers of the Board and additionally can issue a reprimand of the
practitioner. Reprimands, like conditions and undertakings, appear on the
national public register of practitioners.
If a Board finds that a practitioner's conduct amounts to professional
misconduct, the matter must be referred to a Tribunal hearing. Tribunals are
headed by a judge or magistrate and include at least one professional
representative and one community representative.
Like panels, tribunals have broad powers, but can also cancel the registration
of a practitioner.
Under the National Law, health practitioners, employers and education
providers have mandatory reporting responsibilities to advise AHPRA or a
National Board if they have formed a reasonable belief that a health
practitioner has behaved in a way that constitutes notifiable conduct in
relation to the practice of their profession.
Notifiable conduct by registered health practitioners is defined as:
practising while intoxicated by alcohol or drugs;
sexual misconduct in the practice of the profession;
placing the public at risk of substantial harm because of an
impairment (health issue); or
placing the public at risk because of a significant departure
from accepted professional standards.
Education providers have an obligation to make a mandatory notification
about a student if the student has an impairment that may, either in the course
of study or clinical training, place the public at substantial risk of harm.
Statistics on notifications
AHPRA received 3 147 notifications about medical practitioners and 1435
about nurses and midwives in 2015-16. Of these:
369 (11.7%) of the notifications about medical practitioners were
made by other medical practitioners and 620 (43.2%) of those about nurses and
midwives were lodged by other nurses and midwives (these figures include
33 of the 3147 notifications about medical practitioners and 30
of the 1435 notifications about nurses and midwives identified bullying and
harassment as a primary reason for the notification;
32.5% of the notifications completed by AHPRA in 2015-16 received
a full investigation or a specialised assessment. The remainder were closed
3.2% of complaints received by AHPRA in 2015–16 led to a panel
hearing and 3.5% a tribunal hearing.
These statistics demonstrate that the majority of notifications lodged—particularly
against medical practitioners, less so regarding nurses and midwives—were from
members of the public. Just under 12 per cent of the notifications lodged
against medical professionals came from colleagues.
While the proportion of notifications lodged to AHPRA regarding bullying
and harassment was low, this should not be taken to suggest that bullying and
harassment levels are low, but rather illustrates that AHPRA's primary purpose
relates to public safety. Bullying and harassment allegations would, in most
cases, be more relevant to investigate through the individual workplace or the
relevant professional college.
Review of decisions
The National Health Practitioner Ombudsman and Privacy Commissioner (the
Ombudsman) is an independent statutory agency created to provide ombudsman,
privacy and freedom of information oversight of the agencies of the National
Scheme, including AHPRA and the National Boards.
As such, the Ombudsman handles complaints from people dissatisfied with an
AHPRA decision. The Ombudsman's submission outlines the actions of AHPRA or a
National Board that may be the subject of a complaint:
- the actions taken by AHPRA to assess and investigate
notifications or complaints made under the National Law;
- the actions of a National Board when making a decision in
relation to matters raised as a result of a notification or complaint; and
- the actions of a National Board when making a decision to
refuse registration or place conditions on the registration of a health
Ms Samantha Gavel, current (and first) Ombudsman, further outlined her
responsibilities and powers, emphasising that the Ombudsman's office is focused
on AHPRA's procedures, rather than the details of the original complaint:
It is important to note that the role of my office is not to
review the conduct or performance of health practitioners; that is the role of
the national boards. The role of my office is to consider the administrative
actions of AHPRA and the board in relation to action that is subject of a
complaint. We examine whether AHPRA and the board have acted consistently with
applicable legislation, have complied with relevant policies and procedures and
have taken relevant considerations into account. In particular, we look at
whether AHPRA has gathered sufficient information during its investigation to
inform the board's decision making and whether the board's decision is
reasonable based on the information gathered by AHPRA.
Actions open to the Ombudsman include recommending that AHPRA and the
reconsider a decision;
review or change a policy or
offer an apology to an affected
expedite a delayed action; and
provide a better explanation to a
person affected by a decision of AHPRA or a National Board.
However the Ombudsman can only make those recommendations; it cannot
overturn an AHPRA or National Board decision or force a review.
Further, in New South Wales, the Ombudsman has no jurisdiction to respond to complaints
(complaints there are handled by the New South Wales Health Care Complaints
Commission) and in Queensland can only respond if the matter is transferred
from the Queensland Office of the Health Ombudsman.
In 2014–15, the Ombudsman received a total of 75 complaints. The largest
category of these (35 cases, or just under 47%) was from notifiers unhappy with
the result of their notification about a practitioner; while 17 (or just under
23%) were from practitioners regarding the handling of a notification against
them. The majority of the remainder was related to registration issues from
The 2015–16 figures showed 40 per cent of complaints came from members
of the public concerned about the results of their notification against a
health practitioner. A further 14 per cent were from health practitioners who
had been the subject of a notification, and 34 per cent related to registration
From 2014–15 to 2015–16, therefore, there was a slight drop in the proportion
of complaints received by the Ombudsman from practitioners regarding the way a
notification against them had been managed.
The Ombudsman also has a role in providing feedback to AHPRA and the
National Boards about systemic issues identified from complaints received and
helping those bodies to improve their processes.
Vexatious complaints handling
One of the key issues identified in evidence received by this inquiry is
that of vexatious complaints. Multiple witnesses argued that complaints are too
often made for vexatious reasons, using the complaints process as a tool of
bullying and harassment. In this section, AHPRA's process for identifying and handling
vexatious complaints will be outlined.
Section 151 of the National Law authorises National Boards to take no
further action on any notification if it reasonably believes it to be vexatious
or frivolous. Section 237 protects those who make a notification in good faith.
However, as the joint submission from the Medical Board, Nursing and Midwifery
Board and AHPRA notes, classifying notifications as vexatious is not
However, determining that a notification is vexatious can be
difficult, and hence data on vexatious complaints and notifications are
difficult to quantify. For example, a complaint may relate to performance and
risks to public safety but there may be elements of self interest from a
notifier in relation to their professional or commercial interests.
The Ombudsman noted that ready access to the complaints mechanism is important
for public health and that, while complaints can be lodged vexatiously, there
is limited evidence of this happening often:
... the NHPOPC's [National Health Practitioner Ombudsman and
Privacy Commissioner] experience in handling complaints about the administrative
actions of AHPRA and the National Boards does not suggest that there is a high
incidence of people intentionally using notification processes for vexatious
Mr Martin Fletcher, Chief Executive Officer of AHPRA, made a similar
point, drawing on existing research:
What I am saying is that in all of the available data and
research evidence that we have looked at there does not appear to be a big
problem with vexatious complaints, and by 'vexatious' I mean a harmful intent
on the part of the person making the complaint and no patient safety concern
emerging when we look at the issue.
If I can give you one example, we have a research partnership
with the University of Melbourne. They looked at 850 mandatory notifications
over a 12-month period. They found fewer than six that they believed
potentially met the criteria for a vexatious notification. The point I am also
making is that, even though the numbers are small, we recognise that the impact
on the individuals involved can be significant.
The Ombudsman also pointed to existing safeguards against the making of
vexatious complaints; in addition to the provision authorising National Boards
to take no further action on complaints it deems vexatious or frivolous:
Other provisions include the requirement for a national board
to undertake a show-cause process in some circumstances and the ability of a
health practitioner to appeal most types of regulatory action to a tribunal or
The Ombudsman further noted that even some vexatiously made complaints
may raise issues of public safety and expressed its confidence in the
notification assessment and investigative processes of AHPRA and the National
Boards in ensuring the protection of the public.
AHPRA noted in this context that soon after the completion of this
inquiry, it will launch a portal for the lodging of complaints online, which
will also '... invite a declaration from the notifier that the content of their
complaint or concern is true and correct to the best of their knowledge and
belief.' A corresponding change will be made to the hard copy complaint form at
the same time.
AHPRA further noted that it will monitor the impact of this addition to
'ensure there are no unintended consequences for people wanting to raise
concerns about registered health practitioners'.
Similarly, AHPRA explained that, to better identify and understand the
problem, it will commission research into vexatious notifications:
As we have previously advised the committee, the data we have
and the available research indicate this is a very small problem, but we
recognise it has a big impact when it happens. We will publish what we learn
and act on it.
Mr Fletcher further noted that a process is underway to more
specifically prohibit the making of vexatious complaints by medical
... the Medical Board will toughen its code of conduct in
relation to vexatious complaints. Establishing a clear benchmark will enable
the board to take further action against a practitioner who makes complaints
purely to damage another registered practitioner.
The committee recognises that vexatious complaints are not always
readily apparent, but is not convinced that AHPRA's processes are adequate for
the purpose of identifying complaints made vexatiously.
Vexatious complaints as a form of bullying and harassment
The committee has received a considerable amount of confidential evidence
suggesting that the complaints process can be used as a tool of bullying and
harassment within Australia's medical profession.
A significant proportion of confidential submitters claim that vexatious
complaints have been made against them either internally within the workplace
or through the formal processes of AHPRA to bully or harass them. In particular,
submitters allege that notifications were lodged against them in response to
their own complaints of bullying and harassment.
Confidential submitters are concerned that there is no avenue for AHPRA
to counsel complainants on false or misleading allegations and that there are
no consequences for individuals who make vexatious complaints. Some
confidential submitters consider it would be beneficial if a record of
vexatious complainants was kept and suggest that legal action should be taken
against people found to have submitted vexatious complaints.
Dr Don Kane, Chair of the advocacy group Health Practitioners Australia
Reform Association (HPARA), argued that this is a substantial problem for
These people [those making vexatious complaints] are misusing
AHPRA for their own personal reasons. It is very rare, if ever, that AHPRA have
taken action against people who have lodged vexatious claims. There is an
absolute abuse of the mandatory notification process. It was put in there in the
guise of being in the public interest, but really it is in the interests of the
people making the complaint.
The Medical Board of Australia and AHPRA responded to this concern,
arguing that their primary concern is in ensuring patient and public safety and
that any weakening of the notification and investigation process would
It has been alleged that the way AHPRA and the boards deal
with complaints is a form of bullying. We reject this allegation. We fully
accept that it is our responsibility to make sure we deal with notifications
fairly and efficiently. We have worked hard to improve the timeliness of our
processes and to improve our communication with both notifiers and
practitioners. We have streamlined how we work with other health complaints
entities to make sure that the right body is managing the complaint from the
But our primary focus is patient safety. Notifications that
raise serious issues must be dealt with rigorously, and we must take
appropriate regulatory action where there is a risk to the public. The
community comes to us with their concerns when they have had a bad experience
or a bad outcome. They want us to take their concerns seriously and to take
action to ensure that whatever happened to them does not happen again.
Concerns with AHPRA's complaints process
Many confidential submissions express concern about AHPRA's management
of vexatious complaints, as those submitters are concerned that the complaints
process is misused as a vehicle to bully and harass medical professionals.
Conversely, confidential submissions from family members of patients
expressed concern that their genuine complaints had resulted in lenient
consequences for the medical practitioners concerned.
The issue of the AHPRA complaints handling process, including the
identification of vexatious complaints, was reviewed during the 2011 Finance
and Public Administration References Committee Inquiry into AHPRA.
The committee commented:
The committee is concerned about inconsistency in the application
of complaint processes, the prescriptiveness of the application form and the
way in which vexatious complaints are handled. The committee considers that
further development of the complaints process is urgently required.
The committee recommended:
[T]hat complaints processing within AHPRA be reviewed to
ensure more accurate reporting of notifications and to reduce the impact of
vexatious complaints on health practitioners.
The Government response to the inquiry report did not provide any
comments specific to this recommendation.
Discussing that committee's findings and recommendations, the Ombudsman,
Ms Samantha Gavel, noted that considerable improvements had been made in
AHPRA's processes since 2011, when the National Scheme was still new:
I think we all know that there were problems with the
notification process in the first few years of the scheme. I certainly know
that from the reading I have done, and I have had a look at some of those
reports. Since I came into the role, which was two years ago now, I have seen a
big improvement in notification processes. [...]
I have seen a big improvement in all sorts of areas. They
have put a number of new policies and processes in place. For
example, they have done more training for their staff that take calls on the
phone so that they are better able to talk people through the national law, the
notifications process and what they can expect. They can keep them better
informed about what is occurring. They are now providing far more detailed
outcome letters, which is important so that people understand what the board
has looked at and why they have come to the decisions that they have. They are
some of the areas where I have seen improvements.
Despite this, the committee is concerned by the proportion of submitters
to this inquiry who identified serious concerns with AHPRA's management of the
notification and investigation process, particularly when in relation to
notifications lodged vexatiously, as a tool of bullying and harassment. This
section will outline those concerns.
Confidential submitters complained of long timelines for AHPRA
investigations to be completed, ranging from two to four years. The slow
timeframes concerns both those who have made complaints and those who have had
complaints made against them. The former want to see incompetent practitioners
quickly dealt with in a manner that protects the public. The latter are
concerned that competent doctors' time and energy is being wasted responding to
As noted above, AHPRA's target is to complete each investigation within
six months. Ms Kym Ayscough, the Acting Chief Executive Officer, noted that the
agency is aware of concerns in this area and pointed to the median age of open
notifications as being 137 days:
In the material that we have to 30 June 2016, the median age
of open notifications is 137 days, and that is a five-day reduction in median
age from the same time last year. This has been a particular area of focus for
us. We know there was a lot of criticism, in the early days, of the national
scheme about the time frames, and we have continued to work diligently, both
AHPRA and the boards, to bring those time frames within reasonable
Organisations also commented on this aspect of the complaints process.
For example, the Australian and New Zealand College of Anaesthetists argued
In this area justice delayed is justice denied.
It is important for the health professional to have any
concerns speedily dealt with; at the same time if the concerns are sustained,
then it is important for public protection that appropriate action is taken,
including changes to the registration status.
Similarly, the Royal Australian and New Zealand College of Psychiatrists
(RANZCP) also argued that timeliness of investigation is both vital and
Timely and necessary action in response to complaints is
important in providing effective public protection and confidence in the
National Law on the part of both practitioners and patients.
An ongoing problem is the length of time it takes to
investigate and resolve complaints. In recent years, investigations have taken
far too long, causing unnecessary stress for both complainants and
practitioners under investigation and leaving both in the dark as to the
RANZCP further noted that AHPRA often does not communicate well and
promptly with them regarding the investigation of RANZCP members.
The Australian Dental Association (ADA) argued that the length of time
investigations can take can have a deleterious effect on both notifier and
The ADA considers the time AHPRA takes to deal with all cases
is generally excessive and so management of notifications must be improved.
This creates a burden of uncertainty for both the complainant and the health
practitioner in question. What the current processes inadequately recognise is
the impact of the complaints process on health practitioners, particularly in
cases where complaints are unfounded. Practitioners not only have to invest
time in defending complaints, they correspondingly experience the personal
burden of shame, humiliation & psychological stress. There should be
greater effort on a need to support practitioners during the notifications process,
such as outlining to them expectations as well as providing timely updates on
what the next phase of the process would involve and when that would occur. We
are aware that AHPRA is reviewing its processes in this regard.
Conversely, some confidential submitters complained about onerous
requirements to produce documents to the investigative team on short notice.
The committee recognises that AHPRA has improved its processes and that
the timeframe for the closing of notifications has decreased in recent years.
However, given the importance to both notifier and practitioner of timely
resolution to each case, the committee considers this issue to be of the
highest significance and an area for continued monitoring and review.
Transparency and communication
Many confidential submitters claim the investigative process lacks
transparency and scrutiny. A few note unsuccessful attempts to be provided with
all information in relation to an allegation against them or to seek
clarification of the details of their case. Some claim evidence is taken on
face value and that those accused are not given the opportunity to respond to
claims made in the investigation.
One illustration of this point came from Dr Gary Fettke, who discussed
the problems he faced when trying to respond during AHPRA's investigation of
The AHPRA process has shifting goalposts for those under
investigation. You answer one allegation and another one surfaces. Trying to
defend one's position without knowing the evidence and its accuracy makes for a
star chamber circus.
AHPRA acknowledged that its management of notifications 'has not always
met community expectations' and outlined its efforts to improve, particularly
in relation to timeliness and communication:
implementing processes that
deliver early triage of notifications and greater clinical input to ensure we
continue to improve the timeliness of assessment of notifications;
working with health complaints
entities to ensure roles and processes are as clear as possible for notifiers
and practitioners. A common assessment matrix has been developed and agreed to
determine which entity is best placed to manage each matter and public
information has also been produced; and
correspondence with notifiers and
practitioners has been reviewed and improved and more meaningful progress
reports are now being provided to notifiers and practitioners during the course
Improvements have been made. However, complex matters will
take time to investigate and not all matters can be finalised quickly. It is
important that investigations are robust, as the implications for the
practitioner being investigated and the notifier alike are significant.
Dr Joanna Flynn, Chair of the Medical Board of Australia, further
outlined steps that have been taken to improve communication with practitioners
who are the subject of notifications, including a more concerted effort to
communicate more often and giving practitioners a single point of contact with AHPRA:
One of the clear concerns that was expressed, when we started
this work, was the impersonal nature of the communication, the infrequent
communication and the feeling that practitioners were a bit at sea and did not
understand what was happening. That goes back to the point I made earlier about
how stressful it is and us recognising how stressful it is to be subject to a
We have done a lot of work to change the culture in the
organisation and to change the method of communication so there is more verbal
communication, there is more frequent communication and people are given an
unidentified officer with whom they can follow up their concerns. We do have
staff turnover at times and sometimes there is discontinuity but, wherever
possible, we try give somebody one point of contact that they can follow up
with, and we try to respond to things in a much more timely and helpful way. We
do recognise it is stressful, and a lack of information about what is happening
and the lack of a sense that you can speak to anybody about what is going on is
one of the things that adds to that stress.
Alongside timeliness, the committee notes that the level and style of
communication with both notifiers and practitioners has been one of the key concerns
raised about AHPRA's management of complaints. The committee notes that AHPRA
and the national boards have recognised that clear and frequent communication
is a vital component of the notification process. For both the notifier and the
practitioner, understanding the progress and likely outcomes will help reduce
stress and uncertainty. Unfortunately, from the evidence the committee has
received, there are ongoing issues with some cases. Many people have suggested
there is a need for more change.
Adversarial nature of the
Multiple witnesses identified that one concern with the medical
complaints process in Australia is that it is based on adversarial and
investigative systems rather than mediation or other options for resolving disputes.
The Australasian College of Emergency Medicine (ACEM) noted that the
process discourages local investigation and solutions:
... there is no gradual escalation of a complaint, rather the
mandatory notification legislation recommends rapid referral to AHPRA. This
process also denies the individual against whom the complaint has been made the
opportunity to respond or attempt to locally resolve the complaint prior to its
escalation to AHPRA.
ANZCA similarly argued that the existing process is too heavily focused
on adversarial and investigative principles, rather than on addressing the
issues raised in the notification and the performance of the practitioner:
Communication and support are vital. This is both for the
public who have raised the concern and the practitioner about whom the concern
is raised. These complaints are often devastating to both parties. Everything
should be done to reduce this stress and the time over which any investigation
There needs to be a substantial move from the adversarial and
legally based system that is currently evident to one that is focused on
conciliation and rapid resolution wherever possible. There is no doubt that the
concerns, aggravation and angst of complaints are magnified enormously when
delays are multiplied and the process becomes adversarial.
Dr Michael Mansfield argued that the focus of AHPRA's processes is
'punitive rather than educational or rehabilitative', and that, where
appropriate, face-to-face meetings or mediation may serve to resolve complaints
less stressfully, more cheaply and more quickly:
Facilitated face-to-face meetings of accused and accuser
would be very beneficial, with regard to reducing the complexity and cost of
unnecessary investigations, and it would facilitate a speedy resolution of
The Health Care Consumers' Association (HCCA) made a similar point from
a patient's perspective, arguing that 'many consumers may want to make an
informal comment rather than a formal complaint', but that the existing
notifications system does not readily allow this. The HCCA therefore
recommended that learning how to receive feedback should be a skill taught to
all medical professionals.
The HCCA notes a key problem is that medical complaints processes serve
dual roles, one in relation to the practitioner and one in relation to the
consumer, with the result that neither role is fully met:
Medical complaints processes aim to discipline and regulate
professionals and deliver fair process, while also responding to consumer
concerns. In reality, complaints processes are often not 'fit for purpose' for
these disparate aims and as a result fail to achieve either
disciplinary/regulatory or consumer outcomes.
To resolve this dichotomy, the HCCA recommended that the notifications
process have a stronger patient focus in how it closes complaints, separate to
any action that the National Board might take:
The complaints handling system should be changed to ensure
that a consumer who is seeking an apology, further information or a fair hearing
has access to a process that can deliver these outcomes; regardless of whether
or not the issue raised is also appropriately dealt with as a notification by
APHRA or by other complaints-handling bodies.
Asked about adopting a less adversarial, more conciliation-based
approach to managing complaints, AHPRA argued that the National Law does not
give them the scope to do so:
We have considered that question before and I think it is
relevant to point out that AHPRA and the national boards are part of the overall
complaints management system, and there is also in each state and territory a
health complaints entity. The health complaints entities do have the capacity
to mediate or conciliate on complaints.
Surgeon Professor Paddy Dewan, in discussing the 'adversarial,
legalistic mechanisms' of formal complaints and investigation processes, noted
that such systems could be improved by making medical professional staff
welfare a performance criterion for organisations such as AHPRA and the
The committee recognises that public safety is the most important
consideration in managing complaints against medical practitioners. However,
safety is not improved if the medical complaints process is viewed as
unnecessarily adversarial or confronting for either the notifier or the
practitioner. While recognising that AHPRA's capacity to respond to
notifications is prescribed in the National Law, the committee is of the view
that a less adversarial approach to managing notifications may lead to improved
public safety and better outcomes for practitioners.
Conflict of interest
Some confidential submitters claim AHPRA's processes do not consider
possible conflicts of interest when determining who conducts the investigation
or can be a witness. For example, one submitter claims that an AHPRA board
member involved in the investigation was also a colleague, whilst another
states that a complainant (a relative of a deceased patient) was permitted to
join the investigative team of the relevant state or territory board (now
AHPRA). Another submitter claims one of AHPRA's expert witnesses in their
investigation had financial interests in an industry that would benefit from a
Asked about AHPRA's processes for dealing with potential conflicts of
interest, chief executive officer Mr Martin Fletcher responded:
We have a number of arrangements. We have people on a panel
who are available to do assessments. One of the benefits of being a national
scheme is that we can go outside a state or territory if we need to get
somebody who is not directly involved with a particular practitioner. The other
area where we use independent experts is getting expert opinions. Often that
might require us to get somebody who has quite a specialised area of knowledge—on
a medical subspecialty, for example. Again, we would often seek advice from the
relevant professional college or medical college about an appropriate expert to
source. When we do that we do not disclose the name of the person, but,
obviously, once we are approaching an individual to do the assessment or
provide the expert opinion we do disclose the name, because we then need to
establish that there is no conflict of interest that may mean that they are
unable to do what we need them to do.
Qualifications of investigators
A related concern expressed by medical practitioners is that the AHPRA
officers who conduct investigations are not necessarily medically trained or
qualified themselves, and therefore may lack understanding or appreciation of
the medical situation involved.
This argument was summarised by Dr Michael Mansfield:
The main problem, however, is that AHPRA—via its allowed
misuse of mandatory reporting guidelines—is facilitating bulling [sic] on a
level never before seen. This is because the investigators lack any medical
expertise. They do not have the necessary perspective to judge serious versus
vexatious claims, nor do they have the expertise to judge the merit of
differing independent medical reports.
Similarly, Dr Gary Fettke argued that AHPRA's 'flawed investigation
process' is a consequence of investigators who are 'inadequately trained,
supervised and audited'.
Dr Fettke went on to note that, while decisions are made by the medical boards
– whose members do have medical understanding – not all the information
collected during an investigation necessarily forms part of the advice to the
I have asked for all of my material to be put to the board
and have it all reviewed by the board, but that does not happen. It is only
very select. So the gatekeepers in our investigations are the investigators not
the Medical Board.
Dr Don Kane of HPARA likewise argued that inexperienced or unqualified
investigators are producing reports that are inaccurate or fail to take into
account the complexity of medical practice:
The impression I get is that they [AHPRA investigators] are
not well qualified to be in the positions they are in, and the use of sham peer
review both by AHPRA and by people who lodge complaints to AHPRA, be they
administrations or individuals, is quite a common practice, and it is very,
very damaging. They do not seem to have the expertise to realise that a health
service, whether it be in medicine, nursing or otherwise, is very complex, and
if you have reviews done by people who are not actually expert in the work of
the person that they are reviewing, you are very likely to get a review that is
not as it should be, and AHPRA does not seem to have the wherewithal to
In response to these concerns, AHPRA outlined the backgrounds and
qualifications of their investigators and emphasised that, for the past two
years, a national standard training course had been delivered to all
Across the national scheme we employ probably around 100
investigators. They come from a variety of backgrounds. When we are recruiting
we are particularly looking for people who have the skills to gather
information around a complaint, synthesise that information and write reports
for the information of the boards, who are the decision makers in the matter. They come from a variety of backgrounds. Some of our
investigators have clinical backgrounds; others have experience working with
other regulatory agencies, with ombudsman's organisations and some have
backgrounds from the police service.
In terms of qualifications or credentialing, we have for the
last two years been delivering a standard training program to all of our
investigators based on the national certified investigator training program
from the Council on Licensure, Enforcement and Regulation. That program has
been running for more than 30 years and has trained over 19 000 investigators.
We deliver that now as baseline training for all of our investigators.
AHPRA also clarified that, while board members are presented with a
report compiled by the investigator, they are also provided with a list of all
other information received during the investigation and can ask for any of that
Cautions made appealable
As outlined above, a National Board can caution a practitioner following
assessment of a notification. A caution, AHPRA notes:
... is like a written warning and is intended to act as a
deterrent so that the practitioner does not repeat the conduct or behaviour.
A caution is not usually recorded on the public register but
may be published on the national register of practitioners if the National
Board considers it appropriate to do so.
The Ombudsman, Ms Samantha Gavel, described a caution as 'the least
action that AHPRA can take'.
Ms Kym Ayscough of AHPRA noted that:
Under the national law, the board has available to it a
number of regulatory responses. They really are considered to be in an
escalating scale of seriousness, to respond to the different levels of
regulatory risk, and a caution is a response that is at the very low end of the
While describing cautions as the 'low end' of possible responses, Ms Ayscough
did confirm that all responses to notifications against a practitioner,
including cautions, go to their employer.
Several submitters and witnesses noted that cautions issued by the
National Boards are, unlike every other action available to Boards, not subject
to administrative appeal, although there is the option of judicial review. The
committee heard that the process could be improved by amending the National Law
in relation to cautions.
Dr Joanna Flynn of the Medical Board of Australia noted that, while
practitioners cannot appeal the decision to caution them, they are able to put
forward their case before the caution is issued:
A caution is not imposed unless a practitioner has been given
notice of the board's intention to impose a caution and given an opportunity to
make a submission in relation to it. So the practitioner does have an
opportunity to make a submission, but that is not the same as an appeal; I
The argument for making cautions appealable was made by Dr Kerry Breen,
who argued that the National Law is flawed in allowing Boards to issue a
caution 'without the doctor being interviewed by a Board member or even by an
AHPRA staff member'. Furthermore, Dr Breen argued:
... under Section 199, such a caution is not open to appeal,
contrary to all other Board decisions which universally are open to appeal.
Section 206 of the legislation provides that any employer must be informed of
the caution, thereby making the caution public and hence not a minor matter.
Cautions of this type probably serve a useful purpose but there must be a
mechanism for appeal.
The committee notes that, while a caution is the lowest level of action
a Board can take in response to a complaint against a practitioner, that
caution can affect a practitioner's career. As such, further consideration should
be given to the option of allowing administrative review for cautions.
Recognition that bullying and
harassment is a patient safety issue
A point made by some submitters to this inquiry was that bullying and
harassment could be more effectively responded to if there was a greater
recognition that these behaviours in the medical profession can affect patient
safety. Submitters expressed concern that, as bullying and harassment is rarely
seen as a patient safety issue, AHPRA has limited capacity to deal with
complaints about these behaviours.
As an example, Mr John Ilott of the Australian and New Zealand College
of Anaesthetists noted that issues with bullying and harassment are dealt with
differently in New Zealand than they are in Australia:
I think one of the things that we have noticed in the
difference between the Medical Council of New Zealand and the Medical Board of
Australia is that the Medical Council of New Zealand is more prepared to
acknowledge that bullying discrimination is likely to constitute a patient
The HCCA discussed this issue from the patients' point of view, noting
that recent research demonstrates that bullying and harassment has an impact
beyond that of the direct recipient of it:
There is now increasingly clear evidence that medical
workplaces in which bullying and harassment are tolerated are unsafe for
patients. The Joint Commission, an independent, not-for-profit organisation
that accredits and certifies around 20,000 health care organisations and
programs in the United States, reviewed behaviours that undermine a culture of
safety and bullying and concluded that harassment featured prominently:
"Intimidating and disruptive
behaviours can foster medical errors, contribute to poor patient satisfaction
and to preventable adverse outcomes, increase the cost of care, and cause
qualified clinicians, administrators and managers to seek new positions in more
professional environments. Safety and quality of patient care is dependent on
teamwork, communication, and a collaborative work environment. To assure
quality and to promote a culture of safety, health care organizations must
address the problem of behaviours that threaten the performance of the health
The committee is concerned that bullying and harassment, identified as a
prevalent issue in the medical profession, is not currently considered to have
a substantial impact on patient safety. The committee is of the view that the
entire medical profession needs to, as a matter of priority, recognise this
significant impact and AHPRA should take it into account when investigating
notifications against practitioners.
Vexatious complaints and a
declaration of good faith
One of the terms of reference for this inquiry suggested, as a possible
solution to concerns about the vexatious use of complaints against practitioners,
that notifiers could be obliged to sign a declaration of good faith. On the
whole, while all submitters agreed that the making of vexatious or frivolous
complaints was an unacceptable practice and unfortunate consequence of the
complaints process, there was limited support for the notion of requiring
notifiers to make a declaration of good faith. This primarily rested on two
arguments: that those intent on making a vexatious complaint as a way of
harassing or bullying a medical practitioner would be unlikely to be concerned
by this requirement, and that some people with genuine complaints to make might
be deterred by this additional requirement.
For example, AHPRA's Community Reference Group argued:
... it should also be considered that many complainants may
wonder whether it is worth the personal and reputational risk to report a bad
experience of healthcare, and that any requirement for complainants to sign a
declaration 'that their complaint is being made in good faith' may not deter
vexatious complainants, but may deter genuine complainants.
The Australian Nursing and Midwifery Federation (ANMF) also argued
against this requirement, referring both to the unlikelihood of it deterring
those intent on making a complaint for a vexatious reason and the probability
that genuine complaints would be affected:
Such a declaration would unlikely prevent unnecessary
notifications being made, however, it has the potential to serve as a deterrent
to practitioners who are making a valid complaint for fear that it could be
determined 'vexatious' and that they may suffer some kind of professional
retribution if the complaint is not proven. Therefore, the ANMF does not
support the introduction of a requirement for a declaration to be made.
Similarly, the Ombudsman argued that the inclusion of such a provision
would be unlikely to prevent the lodging of vexatious complaints:
... requiring that people who lodge a notification sign a
declaration that they are acting in good faith is not likely to reduce the
number of notifications made or the incidence of possibly vexatious
The AMA was also against the inclusion of this requirement, arguing that
since a majority of notifications are made by other health practitioners, the
introduction of such a requirement would be 'effectively challenging the
professionalism of these people'.
Further, the AMA argued, it would be unlikely to improve the process in any
Given the relative transparency of the notifications process
the AMA questions how the inclusion of this requirement would improve the
information available to AHPRA in making its assessment or have any material
impact on the result.
RANZCP also noted the possible effects of this step in deterring genuine
complainants, while noting that the National Law includes a provision for the
protection of complainants from civil, criminal and administrative liability if
their complaint is made in good faith:
A potential complainant – whether patient or health
practitioner – may already be anxious about lodging a complaint with AHPRA in
addition to feeling detrimentally affected or aggravated by the behaviour they
are seeking to complain about. Therefore, requiring complainants to take an
additional step of having to sign a declaration that their complaint is being
made in good faith may make complainants feel that their integrity or honesty
is being questioned and, in fact, deter them from ultimately making a complaint
Likewise, the HCCA argued that such a requirement would constitute a
significant barrier for consumers, already suffering a power imbalance when
dealing with the health system and individual practitioners, should they want
to make a complaint:
The focus of policy and practice change in relation to
medical complaints should be to reduce barriers to consumer complaints, and to
support both complaints and feedback as opportunities for healthcare
improvement. Introducing a requirement to sign a declaration would constitute a
significant additional barrier to complaints-making and as a result should not
There were exceptions, however, to this broad agreement. The main
argument for the inclusion of a requirement of a declaration of good faith was
that vexatious complaints can have a major and detrimental effect on a
practitioner's career and life, and therefore every effort should be made to
minimise their incidence.
The ACEM noted that all complaints have an effect on the practitioner,
even those which are later deemed to have been made vexatiously:
Complaints can be particularly damaging for those who have
been cleared of the complaint made against them, since the allegations have
previously been made visible on the AHPRA website during the complaints
process. ACEM therefore considers it vital that complainants or notifiers sign a
declaration that their complaint is being made in good faith, acknowledging the
psychological, financial and career-related impacts that their complaint could
have upon the individual.
The ADA agreed that a 'good faith' declaration requirement may not
dissuade potential vexatious complaints, and argued that instead 'it may be
appropriate for complainants to have to make a payment when they lodge a
complaint', or alternatively, requiring that vexatious complainants should be
This latter position was echoed by other submitters, who – whether or
not they supported the idea of a mandatory declaration of good faith – argued
that those found to have made false complaints should be subject to prosecution
or other penalties.
Professor John Stokes suggested an alternative approach. Instead of
requiring complainants to sign a declaration or introducing a cost barrier, the
proportion of vexatious complaints from fellow practitioners could be reduced
by including an undertaking in the professional codes of conduct:
I think it would be important to overcome the objection to
signing by putting a statement into the salient code of conduct for medical
practitioners, in both section 4 and section 8 of those documents. Section 4
concerns working with other health professionals and section 8 is on
professional behaviour. So a simple statement in there that it is part of
professional behaviour not to make vexatious complaints would make it
unnecessary for a mandatory notification. The guidelines from AHPRA are extremely
loose. You could drive a truck through them. Such a statement would stop that.
A similar suggestion was made by some confidential submitters, who
argued that independent Code of Conduct committees would be an appropriate way
of handling all forms of bullying and harassment.
Strengthening the codes of conduct for the various specialities within
the medical profession could therefore take the form of not just discouraging
bullying and harassment, but specifically prohibiting the vexatious lodgement of
notifications against colleagues.
The committee is concerned that there are not currently sufficient
deterrents against practitioners lodging a complaint for vexatious reasons and
for that reason agrees that professional codes of conduct should be
strengthened in this regard. Further, the committee agrees that imposing
penalties upon those found to have made vexatious complaints would be a further
deterrent to this form of bullying and harassment.
'Benchmarking' refers to the practice of comparing complication rates
for a particular procedure across practitioners. The complication rate of an
individual practitioner can then be compared to that of other similarly
qualified practitioners as part of an investigation or audit.
AHPRA confirmed that benchmarking of complication rates may occur as
part of an investigation:
Analysis of complication rates and benchmarking (including as
part of a performance assessment) may assist the MBA and/or its delegates to
make an informed judgement as to the level of risk posed by the practice of the
medical practitioner and appropriate actions to be taken by the MBA.
Benchmarking is a complex undertaking that must consider
factors such as the speciality of the field of medical practice and the patient
cohort involved. It is, therefore, important to note that where benchmarking is
undertaken, AHPRA seeks the opinion of an independent expert and does not
undertake its own benchmarking.
Some confidential submitters support benchmarking on the basis, as
discussed above, that the investigative teams lack the medical knowledge to
make educated judgements. Other confidential submitters voice concern that
accurate benchmarking is difficult to determine and suggest it should only be
used when it will improve outcomes.
While arguing that more data and reporting would be useful, the HCCA
noted that there is a 'fundamental problem' with increased benchmarking:
... the paucity of relevant and useful data in most areas of
medicine upon which to base this kind of benchmarking data. While there are
specialised registries in a limited number of areas, for example joint
prostheses and neo-natal intensive care, the capacity to produce benchmarks
that are clinically meaningful across healthcare is at present very limited.
The ACEM also noted that figures are not currently comprehensive enough
for benchmarking to be meaningful.
The AMA argued that a potential disadvantage of increased use of
benchmarking might be to influence how practitioners treat patients, with an over-emphasis
on concerns about benchmarking data:
Benchmarking can be complex and lead to perverse outcomes
such as providing a disincentive for doctors to try new treatments, or
self-protective practices such as not performing higher risk procedures because
of the potential effect on outcome measures.
ANZCA also expressed concerns with the use of outcome data to benchmark
complication rates, and made several points against the practice. ANZCA argued
that the data at an individual level misrepresents the team-based nature of
much of medical practice; may contribute to competitiveness and a lack of
support between colleagues if they are overly concerned with individualised
benchmarking data; and further often lacks the context necessary, since no two
patients have identical experiences either before or after the medical
The ADA made a similar point regarding the variability of procedures and
the complexity that creates in benchmarking data:
For example, any benchmarking of outcomes, regardless of the
'sameness' of the procedure, will need to consider the impact of practitioner
ability and care as much as:
how easy or difficult the patient
is to treat (behavioural concerns);
the complexity of the presentation
case despite the procedure. It is often the case for example that specialists
do more complicated cases, but the procedure is still classified the same;
the patient's particular medical
compliance with post-operative
instructions on the part of the patient/family/carer;
compliance with post-operative
instructions on the part of the health care facility (for in-patient
the general quality of assistance
available to the operator and patient at the time of the procedure and
Professional and personal consequences
Submitters note significant professional consequences from being
investigated, where even minor findings against them have left a permanent mark
on their record, affecting their employability. Submitters discussed the
difficulty in applying for positions when it is standard practice to ask if the
applicant has received a notification from AHPRA and noted that their
employability has been negatively impacted by having an official record for
Almost all confidential submitters who have been investigated by AHPRA
discussed the personal toll of the stress incurred as a result of the
Professor John Stokes expanded on this and discussed the toll that being
the subject of a vexatious complaint and subsequent AHPRA investigation can
have on practitioners:
Many practitioners are dissatisfied with the mechanism. That
is because of the significant unintended consequences of vexatious reporting,
which causes practitioner illness. It also causes severe financial hardship
and, in a number of cases that we know about, has caused the suicide of very
Dr Gary Fettke also emphasised the wide-ranging effects of having a
complaint made against him and an investigation launched:
It has changed me as a person. I think we all go into
medicine for all the right reasons: to try and make a difference. When you try
and make that difference and you are hammered not only by your institution but
then in the wider community, it changes you. I am more defensive about what I
say to my patients. When you are under investigation, particularly for a
vexatious claim, you think, 'Actually, I've done nothing wrong here; I'm
helping people.' It becomes all-consuming. You lose sleep. My wife and I spend
hours beyond normal work hours trying to sort this out. It has affected our
children with a combination of anxiety, depression and becoming more
introverted. What should be a pleasant experience of helping people is now
something you question every day: 'Why do I keep doing this?'
The committee notes the large number of personal accounts it received
from, or on behalf of, medical practitioners whose lives and careers had
suffered as a consequence of a complaint made against them. Patient safety and
an open medical complaints process cannot be compromised, and the committee is
deeply concerned by the evidence it has received which suggests that these may have
been misused for the sake of bullying and harassing medical practitioners.
Conclusion and committee view
Patient safety is of paramount importance in the medical profession, and
for that reason it is vital that all Australians can trust that concerns about
individual practitioners are taken seriously. As such, supporting a robust
medical complaints system that takes appropriate action to ensure public safety
is a central responsibility of the body created to administer the National
Registration and Accreditation Scheme.
Equally, however, it is important that the process is trusted by medical
practitioners themselves and is used only for its purpose of protecting public
safety. It is clear that in this regard, Australia's medical complaints process
does not have the complete confidence of sections of Australia's medical
profession. As this committee has heard, AHPRA's notification and investigation
process is vulnerable to misuse by individuals. Medical professionals have
identified that lodging a notification against a colleague or competitor can
serve as a tool of bullying and harassment.
While it is difficult to establish the prevalence of this practice, and
noting the statistics on notifications which suggest it is relatively rare, the
committee is nonetheless deeply concerned about this form of bullying and
harassment. As many of the medical practitioners who made submissions to this
inquiry noted, the toll on any individual can be very high. Furthermore,
concerns which undermine any aspect of Australia's medical complaints process
will have a negative effect on the integrity of the entire system and can serve
to decrease public safety.
The committee has also received evidence that, in addition to the
possibility of using the medical complaints process as a tool of bullying and
harassment, other concerns with the complaints process exist. These concerns
are explored in chapter 4.
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