The regulator’s approach corrodes practitioner morale and does nothing to prevent mishaps. Here is how it should be reformed.
‘If you want to ruin a doctor’s life, all you really have to do is make a complaint against them and walk away. There will be no consequences against you. Certainly 90 per cent of the time the doctor will be found to have done nothing wrong, but you will have ensured that doctor has a year of utter misery’.[1]
Medical ethics is a system of values that guides the behaviour of healthcare professionals. Ideally, they encompass the philosophical and practical foundations for decision making that result in the best achievable outcomes for patients and society.
Perhaps the most infamous Australian breach of these principles took place at the Chelmsford Hospital, which galvanised demands for the effective oversight of the medical profession to ensure such events would not recur. That task was handed initially to state-based medical regulators. They were superseded (NSW excepted) in 2010 by the Australian Health Practitioners Regulation Agency (AHPRA) operating under the Health Practitioner Regulation National Law (National Law), and the Medical Board of Australia (MBA).
The question I ask here is whether the regulators have enhanced the health industry’s ability to achieve these core ethical principles and keep patients safe, or is the cure worse than the disease?
I believe that not only have the regulators failed to make the practice of medicine safer, but they have also had a negative influence on health systems, patients, and doctors.
Here’s why I hold this opinion.
Slow and cumbersome process, and insensitive (and lack of) communications
The slow, opaque and adversarial nature of AHPRA investigations has resulted in frustration for complainants, hampered the timely implementation of improvements, and contributed to the perception of unfair treatment of doctors. Lengthy investigations and drawn-out disciplinary procedures can place enormous stress on doctors, professionally and personally, regardless of the eventual outcome.
Under existing National Law, there is no timeframe within which AHPRA is required to complete an investigation. As even AHPRA’s lawyers know, justice delayed is justice denied.
Lack of proactive oversight
Regulatory bodies have been criticised for their reactive approach to addressing medical mishaps, intervening only after an incident has occurred. As airline accident investigators discovered many decades ago, reactive approaches had resulted in a failure to identify and rectify issues before they escalated into significant errors.
Perhaps the matter that best illustrates the point is AHPRA’s response to the complaints it received about the cosmetic surgery industry. For years AHPRA treated each of these complaints in isolation, failing to perceive the systemic deficits, thus failing to institute any preventive measures, until a recent Four Corners exposé forced its hand.
AHPRA’s staple response of victim-blaming, bemoaning insufficient complaints to drive it to action, was evident in the review it commissioned into the matter. AHPRA also offered the excuse that it “didn’t have the power” to act proactively, but it neither sought them nor, presumably, saw the need for them.
Lack of accountability
There are no statutory or regulatory consequences for wrongdoing by the regulators contained within the National Act. However, the National Law specifically excludes the protections (protections afforded even to persons accused of the most heinous crimes) offered by the Acts Interpretation Act, the Evidence Act, the Auditor General Act, and the Public Sector Act.
Only politicians can set policy. It seems that if individual practitioners can be left carrying the entire burden of failure without the examination of contributions from policy, procedure and resourcing, those politicians see no need to change the status quo.
This leaves the regulators free to do what they want, when they want, how they want, to whom they want, while observing no duty of care, rules of evidence, or presumption of innocence, all without consequence for them and without recourse for the subject of these machinations. The Health Ombudsman cannot make binding findings, enforce apologies or enforce compensation orders and in this regard, is less useful in overseeing AHPRA’s workings than is a wooden leg in a bushfire.
Failure to deal with doctors fairly
A significant concern regarding Australian medical regulators lies in the presumption of guilt in their investigatory procedures. This has led to a system that is experienced by practitioners as arbitrary, unjust, and lacking mechanisms for remediation when the regulators get it wrong.
Recently and perhaps most disturbingly, an AHPRA investigator was found to have tampered with evidence presented in a medical disciplinary hearing. Subsequently the South Australian Supreme Court overturned the emergency ban imposed on a doctor[i]. Rather than investigating the circumstances and taking remedial action, AHPRA dismissed it as an “isolated incident” by an investigator who “acted with the right intentions”. Such blatant bias cannot engender confidence in AHPRA’s ability to conduct its inquiries fairly or effectively.
When combined with tardy processes and a focus on individual culpability only, the investigation itself becomes an extrajudicial punishment, irrespective of the ultimate outcome.
The regulators repeatedly mislead parliament, the profession, and the public
Concern regarding AHPRA’s functioning has been a consistent feature since its
establishment. Several inquiries into the operation of AHPRA and the National Law were conducted in 2011, 2014 (the Snowball Review), 2016 and 2017, with the most recent occurring in 2021-22. Among the recommendations made in the Senate’s 2011 inquiry was the following:
6.20 The committee recommends that complaints processing within AHPRA be reviewed to ensure more accurate reporting of notifications and to reduce the impact of vexatious complaints on health practitioners.
AHPRA’s response to the Senate’s recommendation was such as to require its repetition in its 2017 inquiry report. AHPRA subsequently commissioned and paid for what appeared to be little more than a non-peer reviewed opinion survey[ii]. Somewhat incredibly, it did not survey doctors or medical organisations to determine what percentage claimed to be victims of such complaints, and thus could not analyse the experiences of those best placed to describe them.
Perhaps unsurprisingly, AHPRA’s CEO Martin Fletcher felt such flimsy “evidence” was sufficient to claim: “We weren’t surprised it confirmed our views.” Nor was anyone else, but the survey had done its job. The 2022 Senate inquiry’s report, while observing AHPRA’s persistent failings in several other areas, contained no mention of vexatious complaints.
In this light, AHPRA’s denial of the existence of vexatious complaints while in pursuit of them is itself vexatious.
Focus on individual blame while ignoring systemic failure
The National Law empowers AHPRA to investigate and prosecute complaints against individual practitioners, but little else. The absence of a comprehensive, mandatory, and no-blame reporting system for medical errors, similar to that used in the airline industry’s highly successful accident avoidance processes, has contributed to the failure of medical regulators to mitigate medical mishaps.
The culture of individual blame and the presumption of guilt perceived to guide AHPRA’s behaviour inhibits error/accident reporting, encourages vexatious/trivial complaints, and weaponises vexatious, trivial, non-meritorious, and malevolent complaints. Structural, resourcing, and other preventable systemic contributions remain unaddressed.
This hampers the ability of health care organisations and health care professionals to learn of and learn from mistakes and implement preventive measures, and it has another deadly consequence which has recently come to light.
Pursuit to the death
Like many colleagues, I had heard rumours of a significant number of attempts at self-harm and of completed suicides by doctors under AHPRA investigation. My inquiry of AHPRA seeking that data was unsuccessful. Even my request for a copy of an application for information was ignored. Now we know why.
An unpublished investigation meant AHPRA already knew there were at least 16 completed suicides in four years among doctors under investigation. The full report has not been released, so we do not know whether 16 is the total number of completed suicides during that four-year period. We do not know how many attempts there were (AHPRA claims the unlikely low number of four). We do not know how many occurred in the years following. We do not know what the excess (if any) all-cause mortality was while under investigation and subsequently, and there doesn’t appear to be any attempt to find these things out.
Further, I argue that the review, led by the Chair of the Psychology Board of Australia, is not free of the taint of the perception of bias. Is this why the non-peer reviewed interim report appeared to some to indulge in a little victim blaming[iii]?
It’s just not working
Negligence, incompetence, and malevolence by individual health practitioners cannot be ignored, but as AHPRA’s annual report reveals, of the approximately 129,000 registered medical practitioners in 2021-22, complaints were received about approximately 5%. Of this 5%, 71% required “no further action”, and less than 0.4% of that 5% was found to be sufficiently serious to result in the suspension or cancellation of registration. That’s approximately 30 practitioners. Out of 129,000!
In Australia in 2019-20 there were 11.1 million hospitalisations, among whom there were approximately 140,000 hospital-acquired complications reported, of which half were considered preventable. In this light, it is more than ludicrous to suggest AHPRA and the Medical Board make any significant difference to the safety of medical practice in Australia – yet that’s where all the regulatory resources go.
Recommendations for improvement
I hope I have made a persuasive case for change in Australia’s system of medical regulation. Here’s what I think should be done to improve it.
1. Adopt a proactive oversight model
Regulatory bodies should shift their focus from reactive intervention to proactive oversight. This approach would involve conducting regular audits and inspections of healthcare facilities, as well as monitoring and analysing trends in medical errors and mishaps.
2. Change the National Act to give priority to prevention
Enable regulators to investigate systemic issues including resourcing & administrative decisions, utilising the airline industry’s proactive accident investigation methods. This includes a mandatory and transparent no-blame reporting system for medical errors to encourage healthcare professionals to disclose incidents, without fear of retribution.
Such a system, recommended by the Australian Commission on Safety and Quality in Health Care[iv], would facilitate the identification of trends and patterns in medical mishaps. By identifying potential issues early, regulators can work with healthcare providers to implement preventive measures and thus improve patient safety.
3. Impose a duty of care
There is no explicit duty of care owed to those under investigation in the National Act. Likewise, there is no statutory requirement for AHPRA to observe principles of procedural fairness or rules of evidence, or the presumption of innocence.
The National Act should contain a clear statement that AHPRA owes a duty of care to both complainants and those the subject of those complaints. The National Act should also address the presumption of innocence, rules of evidence, and procedural fairness, while explicitly excluding bias in proceedings.
4. Expedite the Regulatory Process
Streamlining the regulatory process would not only reduce the stress experienced by doctors during investigations and disciplinary procedures, but also minimise the potential impact on their professional reputation where a matter is unproven. The timely resolution of cases is necessary to maintain trust in and co-operation with the medical regulatory system.
5. Create an independent arbiter
An inspector-general could be appointed who is statutorily independent of the regulators and its governing ministerial council, with sufficient powers and resources to effect change. That office should be able to issue enforceable directions to AHPRA, and report direct to Parliament and not to any individual minister or ministerial council with skin in the game.
A contrasting approach transformed the airline industry from a game of Russian roulette to one of the safest modes of travel known. Accident investigation and prevention in the airline industry is a multi-faceted, highly regulated process, aimed at identifying the causes of an accident, learning from them and implementing measures to prevent similar incidents in the future.
How would airline industry accident investigation methods work in a medical setting?
While the airline and medical industries are very different, there are principles from airline accident investigations that can be applied to healthcare. The goal, as with aviation, is to create a culture of safety where mistakes can be understood and learned from to prevent future occurrences.
Here’s how these principles could be translated into a medical setting:
1. Incident reporting
Just as in aviation, any adverse event or near-miss in a medical setting should be reported immediately. There should be clear protocols for reporting, and all healthcare workers should be encouraged to report incidents without fear of punishment.
2. Incident investigation
After an incident is reported, a thorough investigation should be conducted. This might involve:
- Direct observation: Reviewing the scene of the incident, if possible, to understand the physical and environmental factors that might have contributed.
- Record review: Looking at medical records, equipment logs, and other documentation that could provide information about the incident.
- Interviews: Speaking with the healthcare professionals involved, as well as the patient and their family, if appropriate.
3. Analysis and Findings
Investigators should analyse the data collected to determine the multifaceted cause or causes of the incident. This could involve a root cause analysis (RCA), a method – also known as the Swiss cheese model – used in aviation to identify the chain of events that have contributed to an adverse outcome.
4. Recommendations and implementation
Based on the findings of the investigation, recommendations are made to prevent similar incidents in the future. These might involve changes to procedures, equipment, training, or culture. These recommendations are then implemented and monitored to ensure effectiveness.
5. Prevention
Just as in aviation, prevention in healthcare should be proactive and ongoing. This could involve:
- Safety management systems: Healthcare facilities/practitioners should implement a systematic approach to managing safety, including safety policies, risk management, safety assurance, and safety promotion.
- Regulatory oversight: Regulatory bodies provide oversight and enforce regulations to ensure healthcare facilities maintain high safety standards.
- Training and education: can help prevent errors and improve responses when errors do occur.
- Safety culture: A strong safety culture should be cultivated within healthcare organisations, where safety is valued and prioritised at all levels.
By focusing on learning from mistakes instead of only punishing them, organisations and individuals can improve safety more effectively. This approach has been widely supported by the patient safety movement in recent years.
One of the most important aspects of this approach is the emphasis on a “no-blame” culture. In both aviation and healthcare, it’s important to understand that most errors are the result of systemic issues rather than individual negligence or malevolence. Most of us would be aware that a number of hospitals and other health services are implementing elements of this approach, but without the backing and resources of a regulatory body committed to achieving the same, progress is likely to be slow.
Conclusion
The failure of Australian medical regulators to act to prevent medical mishaps and ensuring fair treatment of doctors are multifaceted and complex, but they share deficits in being complaints driven, punitive, individually focused to the exclusion of all else, and tainted by the presumption of individual guilt.
To address these shortcomings a systemic overhaul is necessary, so Australia’s medical regulatory system can better serve its essential purpose: safeguarding the health and wellbeing of patients, while also ensuring that doctors are treated fairly and expeditiously.
Dr Gliksman is a physician in private practice in Sydney and a past vice-president & chair of Council of the AMA (NSW), and a past federal AMA councillor. He has never been the subject of a patient complaint to any regulatory body.
[i] Shah (a pseudonym) v Medical Board of Australia [2022] SASC 140.
[ii] Morris J; Canaway R; Bismark M. Reducing, Identifying and Managing Vexatious Complaints: Summary Report of a Literature Review Prepared for the Australian Health Practitioner Regulation Agency. Melbourne School of Population and Global Health: Centre for Health Policy. November 2017.
[iii] Read ‘comments’ section in: https://www.ausdoc.com.au/news/ahpra-finds-16-health-practitioners-died-by-suicide-during-complaints-process/
[iv] https://www.safetyandquality.gov.au/sites/default/files/2019-07/the-state-of-patient-safety-and-quality-in-australian-hospitals-2019.pdf – (Box 6, page 21).
