Calls for a royal commission as complaints against chief medical regulator double

The National Health Practitioner Ombudsman and Privacy Commissioner explains the organisation’s role.

By CALLAN NORMAN

Complaints against Australia’s chief medical regulator have more than doubled in 12 months, despite years of inquiries into allegations of bullying and numerous scandals leading to promises of reform.

Experts say a royal commission might be needed to address the problems with the Australian Health Practitioner Regulation Agency (AHPRA) which have, they say, seen dangerous criminals continue practicing as doctors, while other practitioners are pushed towards suicide.

National Health Practitioner Ombudsman and Privacy Commissioner (NHPOPC) figures show that 181 complaints in the 2015-2016 period jumped to 363 in 2016-2017, the highest  recorded by the agency.

A spokesperson for the Ombudsman said there were several possible explanations for the upward trend, including an increase in notifications being made to AHPRA each year resulting in more complaints, and more professionals registering to practise.

“Although complaint numbers have increased, they still only represent a very small percentage of the total number of matters handled by AHPRA each year,” the spokesperson said.

“However, as the complaints that the NHPOPC receives are representative of broader concerns experienced by the public and health practitioners in their interactions with AHPRA, these complaints provide valuable insights … and can be pointers to systemic issues.”

Formed in 2010 to replace an inconsistent state-specific system, AHPRA has been plagued with concerns since its creation. It was the subject of one inquiry in Victoria in 2014 investigating its effectiveness and ability to protect the public, and two federal Senate inquiries in 2011 and 2017.

The 2017 inquiry expressed “considerable concern about the way in which medical complaints in Australia are handled, including the use of notifications as a tool of bullying and harassment” which remained a “widespread and significant problem”.

The committees made numerous recommendations, including wanting greater transparency with notifiers and practitioners, increasing the efficiency of the complaints process, and suggesting further areas of investigation. 

The law states that any practitioner using one of AHPRA’s “protected titles” – such as a pharmacist, chiropractor, GP – must be registered with the relevant national board, and these are overseen by AHPRA. 

An amendment to the law last year gave each board the discretion to share more information with notifiers – to make the process more transparent – but did not address calls for greater communication with practitioners under investigation.

Dimitra Dubrow

Maurice Blackburn’s national medical negligence department head, Dimitra Dubrow, said that while she applauded the change, “discretion means that AHPRA will not have to do so in each case”.

“It is hard to tell which cases AHPRA will provide reasons for and which they will not,” she said. “In order to achieve thorough transparency and confidence in the process, meaningful updates about AHPRA’s investigations and reasons for all findings should be given.”

Ms Dubrow said concerns regarding lack of transparency “have been raised many times”. 

A spokesperson for AHPRA said their processes had been subject to “extensive scrutiny”, which was “welcomed because our work is important for the safety of the community”.

However, Ms Dubrow said AHPRA did “not meet community expectations, so just by that measure alone it does not adequately fulfil its role. There is a community expectation that AHPRA will be responsive to patient concerns and will investigate them promptly and with rigour. But that does not appear to be the case.”

She referenced cases such as Andrew Churchyard, who was accused of sexually assaulting more than 100 patients, and James Peters, the anaesthetist who infected 54 women with hepatitis. AHPRA is alleged to have had knowledge of both men long before they were publicly exposed.

“We know that AHPRA is slow and has missed opportunities to protect the public by not taking more decisive actions,” Ms Dubrow said. “These matters certainly give the impression that AHPRA has placed the interests of the practitioner ahead of the protection of the public.”           

The National Health Practitioner Ombudsman and Privacy Commissioner spokesperson said that of all complaints made to them, the majority – about 57 per cent – concerned the way AHPRA handled a case.

The Ombudsman has the discretion not to investigate complaints in some circumstances, for example, if the complainant has not provided AHPRA with an opportunity to resolve the concern, or if the complaint is more than a year old.  The spokesperson said AHPRA were “very responsive” to suggestions.

However, of the complaints received by the Ombudsman in 2016-2017, just 28 per cent  (73) were formally investigated. Of those, only 8 per cent resulted in formal suggestions to AHPRA and the boards – about six times.

Dr Anne Malatt

Practitioners themselves are less sure the changes have made any difference, and do not feel their interests have been protected. Anne Malatt, an ophthalmologist who made a submission to the 2017 inquiry, said AHPRA had made very little progress, and treated practitioners just as poorly, not with favouritism. 

“There have been some placating words spoken but no true action because there is no intention on the part of AHPRA to change,” she said. “They have shown no interest in reform and will need to be reformed from outside.” 

Dr Malatt said she had not had the “dubious pleasure” of dealing with an AHPRA investigation, but was very familiar with a regulatory body she said “acts as judge, jury and executioner all in one: a situation for which there is no parallel in ordinary law”. 

The spokesperson for AHPRA said that when assessing a complaint they sought information “via a variety of means”, including seeking insight from other practitioners.

Dr Malatt said she had friends and colleagues who had been “devastated by the process”.

Her submission to the inquiry read that one friend had been “financially ruined, publicly humiliated, and personally devastated. When he could not take the strain anymore, he took his own life, stating his innocence until the end.”

Similar allegations are scattered throughout submissions to the parliamentary inquiries and in medical circles.

Dr Geoffrey Toogood

In an article in the Medical Journal of Australia, Dr Geoffrey Toogood, a cardiologist based in Frankston, drew parallels to the UK’s culture of medical regulation, where 28 doctors died by suicide between 2005 and 2013 while under investigation. A study in the UK found that doctors under investigation by their regulatory body had a suicide rate 20 times greater than the general public.

Dr Toogood suggested the findings could be similar in Australia. “It would appear very clear that investigation of a doctor is a clear suicide risk factor and should be treated as such,” he wrote. Dr Toogood was not available for comment.

The website MyAPHRA is a confidential forum for those who have had experiences with AHPRA, providing support and monthly meetings for practitioners under investigation. A spokesperson for the site said that AHPRA was a “bully organisation” that “has caused suicides amongst the medical fraternity and destroyed professional reputations without any justification whatsoever”.

The spokesperson for the Ombudsman and Privacy Commissioner said investigations could affect the wellbeing of practitioners. “The issues (of health regulation) are sensitive and can be emotive as they often involve the experiences of individuals receiving healthcare, as well as issues that can impact on the livelihood of health practitioners.”

When asked if they were aware of these suicides and what had been done to minimise stress during investigations, the spokesperson for AHPRA said “we understand that being the subject of a complaint can be stressful”, and referred to a list of support services practitioners can access on AHPRA’s website.

In 2017 AHPRA commissioned independent research to look at the impact of vexatious complaints. The report found there was “more risk from people not reporting concerns than from making dubious complaints”. 

The Healthcare Excellence Institute Australia (HEIA) is a newly founded organisation a spokesperson said works to “ensure the quality of patient care and the welfare of healthcare professionals is paramount” in health regulation.

A response to the AHPRA report provided to Mojo News by the HEIA says: “In what can only be described as high farce or wanton negligence, the National Regulator commissioned its own report by its regular investigators … and miraculously found itself not guilty.”

AHPRA’s report “maintains the status quo with little or no attempt to understand the problem and seek solutions”, the response reads.

Professor Paddy Dewan

Paediatric surgeon Professor Paddy Dewan, who made a submission to the 2016 inquiry, said “there have been suicide deaths” as a result of AHPRA’s investigations, and there had been “absolutely no” signs of real change since.

“My personal experience has given me great insight into the AHPRA dysfunction that, unfortunately, nothing short of a royal commission-type investigation would seem to enable AHPRA and the government to understand the harm to healthcare that comes from the current adversarial model of dealing with complaints,” he said.

Prof Dewan is also a member of the HEIA. “A royal commission is expensive, time-consuming and unlikely to produce the culture change needed, but tools for change and the pursuit of truth in Australia appear to be lacking,” he said. “So, yes, the HEIA do support a royal commission to shine a light in all the dark corners of health regulation.”

The spokesperson for MyAHPRA said they were in the process of “trying to convince senior politicians of the need for a royal commission”.

The HEIA believe there may be better options than a royal commission, however. “To facilitate immediate culture change, it would be appropriate for deaths of doctors who have suicided whilst under AHPRA investigation to be investigated under Brodie’s Law,” Prof Dewan said.

Brodie’s Law is Victoria’s anti-bullying legislation, making serious bullying a crime punishable by up to 10 years in jail.

Ms Dubrow said that the relevant groundwork had already been laid to achieve a better system in the “excellent inquiries” from 2014 and 2017.

“AHPRA has a long way to go when it comes to restoring public confidence that the right balance is being struck.”