The regulator says it will take its vexatious complaints problem more seriously and start scrutinising notifiers’ motives.
Doctors often ask me: why is AHPRA taking this complaint seriously? Don’t they know that this person is out to get me?
The answer to that question ultimately boils down to this: even if the person is out to get you, if there is substance to the complaint, then that’s all that matters to the regulators.
That should not be the case. AHPRA needs to do far more to protect its registrants from complaints designed to harm and hurt.
Let’s drill down on that a little more. To be a “vexatious” notification in a legal sense, there are two factors that need to be met:
- The complaint must have no substance; and
- The complainant must have intended to cause distress or harm to the practitioner.
As would be apparent from this definition, a complaint that’s made in malice but has substance to it will not be “vexatious”.
However, because determining whether a complaint is vexatious relies upon it having no substance, it is not a determination that can be made until the end of the matter – i.e. until the regulator has established it does not have substance. Often, complaints made maliciously will sound very serious and will, on their face, have substance, and the regulator is obliged to look into them.
It is also often very hard to prove that someone is intending to cause distress or malice; people are often wrong or incorrect, or might present information as something they are uncertain about. The regulator will always be loath to penalise people for reporting something they aren’t sure about but which could be serious.
It’s therefore very hard to prove that something is vexatious, and it’s pretty rare that something will meet the very high threshold for a vexatious complaint. It also won’t happen until the matter is finished – that is, until the damage is already done.
This is not the end of the story. Rather than focusing on whether something is definitely vexatious, a better path for regulators is to consider the veracity of the evidence presented by a notifier.
Regulators are often solely focused on the person who is complained about – they aren’t here to investigate the complainant. While that is understandable from a legal perspective, adhering to that approach too rigidly means that they’re often missing out on vital information about a notifier that is necessary to make a good decision.
Regulators relying upon evidence from a complainant must establish that the complainant is a reliable witness, and that their evidence is accurate and can appropriately be utilised by the regulator.
This is presently where AHPRA falls down. In many cases, it does not adequately consider whether something might be vexatious – but even if it does, as soon as a notification fails to meet the strict definition of “vexatious”, it seems to treat that as the end of the enquiry.
It shouldn’t.
If a complaint potentially has substance, but the complainant is a key source of evidence (as will often be the case), then a key part of AHPRA’s inquiries need to be directed towards verifying and confirming the reliability of the evidence of the complainant.
That is even more the case when the practitioner reports to AHPRA that the notifier is someone who they know to have a vendetta, or whose evidence is otherwise unlikely to be reliable.
AHPRA also needs to have a better way of identifying potentially vexatious notifications, rather than simply dismissing them as not vexatious at an early stage.
Related
The National Health Practitioner Ombudsman late last year released its review into AHPRA’s management of vexatious notifications, and it supports what I’ve said above.
It found that there are very few truly vexatious notifications, but that there needs to be far more consideration and analysis of the notifier’s evidence. The report contains 17 recommendations (in its response, AHPRA has accepted all of the recommendations made to it) and, in particular, include recommendations that AHPRA should:
- Enhance the way it considers the motives and intent of notifiers;
- Improve its processes regarding the identification of vexatious notifications;
- Be more transparent in relation to potentially vexatious notifications;
- Clarify processes around own motion investigations (ones it has initiated without a complaint); into practitioners who have made inappropriate complaints about other practitioners.
The recommendations of the Ombudsman are sorely needed and, if properly implemented, should improve the way that AHPRA deals not just with vexatious complaints, but other complaints made by people intending to cause harm to practitioners.
Separately, the Ombudsman also recommends that additional powers should be inserted into the law to make it an offence to provide false or misleading information to AHPRA at earlier stages of the process (e.g. when making a notification).
On that point, the complete lack of any action against people who have weaponised the complaints system has greatly incentivised others to take that approach.
In January 2023, this masthead published a story on the weaponisation of the complaints system against doctors, including this quote:
If you want to ruin a doctor’s life, all you really have to do is make a complaint against them and walk away … Certainly 90% of the time the doctor will be found to have done nothing wrong, but you will have ensured that that doctor has a year of utter misery
The same remains true today, more than two years later.
Failing to take steps to prevent problematic complaints being made causes harm to doctors, but it also causes harm to AHPRA and the Boards – not clamping down on these sorts of complaints creates work for the regulators, and makes it harder for them to focus on matters where there really is a danger to the public.
It is vital for AHPRA to take the issue of problematic complaints seriously. Just because very few complaints are truly vexatious does not mean that there are not a large number of complaints where the evidence of the complainant is questionable, and where too much reliance is placed upon the word of a person with impure motives.
AHPRA’s response to the Ombudsman’s report contains the right words, but whether its actions match those words is something that we’ll see in the next 12 months.
David Gardner is a lawyer, and a former manager and investigator at AHPRA. In addition to his legal practice, he is the director of AHPD, a new CPD provider of high-quality education to doctors on largely neglected non-clinical topics.
