Why we need tighter regulations for dodgy doctors

Australia’s health practitioner watchdog is supposed to protect patients.

In Australia, you have the right to make a formal complaint about your doctor if you think they have behaved unprofessionally or even illegally.

But the way the law stands, there is scope to improve the operation of the current health regulator, the Australian Health Practitioner Regulation Agency (AHPRA). A number of recent health-related controversies have shown that the current regime fails to adequately protect patients from dangerous practitioners. Victoria has been pushing for a change and the rest of Australia should too.

Increased protection of patients

After a complaint has been made, doctors are allowed to continue practicing while AHPRA goes through its investigation processes. Doctors obviously have a right to procedural fairness like anyone else but, in a few cases, this has allowed doctors to reoffend and injure other patients.

Reaching a conclusion on an investigation can take months – there’s a lot involved in properly scrutinising a complaint. But in the meantime, there are restrictions on what AHPRA can and can’t tell the practitioner’s employer and how the practitioner is allowed to deal with their patients.

This means employers and patients can often be unaware of ongoing AHPRA investigations.

Victoria’s proposed reforms aim to increase AHPRA’s ability to act and protect the community once a complainant has notified them of an issue.

Greater transparency

The lack of transparency in the current system allows dodgy doctors to continue reoffending.

In May 2015, AHPRA was notified of an allegation of sexual assault by a Victorian practitioner. The practitioner in question was placed under a chaperone order and his employer notified.

However, due to the lack of transparency in the current system, patients weren’t told why the chaperone was present and unfortunately, the neurologist continued to offend until mid-2016.

If the offending neurologist’s patients had been made aware of the allegations, this further offending might have been avoided.

Another incident, at Bacchus Marsh Hospital, saw the rate of foetal death reach higher than average numbers. AHPRA had been made aware of issues surrounding the Head of Obstetrics for a while and, although he was not solely responsible for the incidents, allowing him to continue practising put more babies at risk. The lack of transparency also meant Hospital management were not aware of the concerns.

While there should be more transparency in situations where AHPRA is investigating a serious allegation, publishing every complaint isn’t always appropriate.

For example, some complaints might be unrelated to their ability to safely treat patients, such as a practitioner mismanaging a patient’s personal information. In this instance, the complaint and following investigation have no bearing on the practitioner’s ability to continue treating their patients. But with more serious allegations, transparency could help prevent repeated offences.

Obviously a balance must be struck – it would not be fair to publish all complaints before they had been investigated. It would also not be appropriate for employers to be notified immediately in all cases. However, there is undoubtedly scope to increase transparency and improve patient safety.

Stronger powers and penalties

In some serious cases, AHPRA needs the power to take action before an allegation has been fully investigated.

The argument for acting first, investigating later, is strong in the case of the neurologist mentioned above. There was not simply a mistake in the surgery but quite possibly a criminal act.

The Victorian Government has suggested giving AHPRA stronger powers to take immediate action against a health practitioner where it is ‘satisfied that it is in the public interest or for the protection of the health or safety of the community’.

This is about defining where action can be taken before an allegation is substantiated. The idea is sound, because it would allow the Board to address a potentially dangerous situation before anybody else can get hurt.

Victoria also wants AHPRA to be able to impose tougher penalties on doctors when they breach existing sanctions and conditions. For example, there is currently no penalty for a health practitioner who fails to inform a patient that they are subject to an AHPRA prohibition order. This seems an unbelievable situation and can only encourage reoffending.

Moving to a federal regulatory framework through AHPRA has been a definite improvement, but there’s still work to be done. To make the framework really effective, it must maintain a balance between protecting the community and allowing doctors due process.

National health practitioner watchdog

RELATED LEGAL SERVICES: Medical negligence

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Tom Ballantyne

Maurice Blackburn Melbourne

Tom Ballantyne is a Principal Lawyer and the head of Maurice Blackburn’s medical negligence department in Victoria. He is a Law Institute of Victoria Personal Injury Accredited Specialist, is listed in the prestigious Doyles guide, and is the Australian Lawyers Alliance Victorian President. Tom sees cl…

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