Vexatious AHPRA complaints truly are rare: Ombudsman

7 minute read

AHPRA Political

By

Laura Woodrow

But the regulator needs a better process to weed out repetitive and unreasonable notifiers.

Truly vexatious complaints to the Australian Health Practitioner Regulation Agency are rare, but the regulator needs a better process for dealing with repetitive, unreasonable notifiers, says the Ombudsman.

In December 2020, AHPRA announced a framework to identify and manage vexatious complaints through a triage process, following years of complaints from doctors and representative bodies.

AHPRA has long maintained that vexatious complaints – defined by the regulator as a notification without substance made with the intent to cause detriment, distress or harassment – make up only 1% of notifications.

Complaints which warrant no further action but don’t meet AHPRA’s criteria for vexatious are classed as incomplete, misconceived, trivial or inadequate, but the regulator has acknowledged that it can be difficult to discern the motive of the notifier.

Given that two thirds of all notifications against medical practitioners (66%) are closed with no further action, AHPRA’s narrow definition may mean that vexatious complaints are under recorded.

In 2022, the regulator requested an independent review, led by the National Health Practitioner Ombudsman, of the vexatious complaints framework.

Today, AHPRA has accepted all 17 recommendations made by NHPO Richelle McCausland in her independent review of the regulator’s framework.

“Many health practitioners have told us that having a notification made about them is distressing,” said Ms McCausland.

“My recommendations seek to ensure the notifications process remains open and accessible, while also ensuring health practitioners are treated fairly and better protected from groundless notifications that have been made with the intent to cause them harm.”

The review recommended improvements to the framework and its application, particularly how AHPRA manages notifications in cases involving domestic and family violence allegations and unreasonably persistent notifiers.

It supported evidence that truly vexatious notifications were rare but found reports that a notifier was vexatious sometimes went unrecorded by AHPRA.

This meant the framework likely could and should be used more often than it is, said the Ombudsman.

AHPRA CEO Martin Fletcher said the framework had to strike a balance between public safety and ensuring the fair treatment of practitioners, avoiding unnecessary stress.

“We are pleased the review confirmed that vexatious notifications are rare, however we appreciate they can have a significant detrimental impact on those involved and it is vital that everything is done to prevent harm,” he said.

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“Our reforms in this area are already well advanced, and we look forward to implementing these recommendations to further build upon our processes.”

The Ombudsman said AHPRA should be more transparent about how and when the framework was applied.

In its submission to the review, the RACGP said “solid data is needed to demonstrate whether processes have indeed improved” as anecdotal hearsay was not enough.

The Ombudsman recommended that the regulator strengthen its approach to repetitive or unreasonable notifiers, as it found that AHPRA didn’t have a consistent approach to dealing with these notifications.

The review also found evidence of the notification process being weaponised in relations to family violence.

“Each notification about a health practitioner needs to be carefully considered to determine if it is necessary for regulatory action to be taken to protect the public,” said Ms McCausland.

“However, AHPRA also needs to ensure that it protects health practitioners, including those experiencing domestic and family violence, from abuse of its processes.”

The recommendations call on the regulator to improve the information it gathers around complaints to better discern whether they may be vexatious, and to better record and share information about the reasons for decisions with no further action.

The NHPO’s summary of all 17 recommendations includes:

Improving understanding of vexatious notifications

  • AHPRA should ensure allegations that a notification is vexatious are appropriately documented and managed in line with the framework, with relevant information about the assessment of the allegations recorded and provided to decision makers for consideration.
  • AHPRA should clearly outline, and publish information about, the different types of notifications that commonly result in a decision to take no further action, including the criteria and approach used to assess whether a notification meets the definition of being ‘sub-optimal’ rather than vexatious.

Better identifying vexatious notifications

  • AHPRA should improve how it receives notifications to ensure it more clearly requests information about the notifier’s concerns, the notifier’s relationship to the practitioner and what the notifier is seeking from making the notification.
  • AHPRA should provide extra guidance to staff about how to address concerns that an anonymous or confidential notifier has made a vexatious notification.
  • AHPRA should update the framework to distinguish ‘calculated conduct’ from ‘unreasonable conduct’ when considering the characteristics of a notifier. The Framework should also include more specific indicators of calculated conduct, such as references to the types of relationship breakdowns and workplace disputes that may lead to a vexatious notification and references to making a retaliatory notification as an indicator that a notifier may have intended to harm the practitioner in making the notification.
  • AHPRA should provide more guidance on how a notifier’s intent to cause harm to a practitioner can be shown and the standard of proof required to demonstrate an intent to cause harm by making a vexatious notification.

Improving how potentially vexatious notifications are assessed

  • AHPRA should strengthen the assessment of indicators that a notification may be vexatious and the assessment of information gathered about a ‘suspected vexatious’ notification.
  • AHPRA should reduce the escalation points in the internal approval process for the framework by lowering the threshold for approval to consider a ‘suspected vexatious’ notification.

Supporting improved recommendations and decision making about vexatious notifications

  • Health ministers should consider amending the National Law to create a new subsection under s. 151(1) to distinguish a decision by a Board to take no further action because a notification is vexatious. Consideration should also be given to whether ‘vexatious’ should be a defined term in s. 5 of the National Law.
  • AHPRA and the Boards should distinguish previously received vexatious notifications from other notifications when undertaking a risk assessment of a new notification. Consideration should be given by health ministers to amending s. 151(2) of the National Law so the power to consider previous notifications as part of a pattern of conduct or practice does not extend to previous notifications that were found to be vexatious.
  • AHPRA should be transparent about how and when it applies the framework, where appropriate. AHPRA should update its library of reasons to ensure clear and appropriate reasons are provided for a decision that a notification is vexatious. AHPRA should also update the associated template notification outcome letters regarding vexatious notifications.

Determining appropriate consequences for making a vexatious notification

  • AHPRA and the boards should form a position on when they would seek to fine a person for providing false or misleading information or documents to an AHPRA investigator.
  • Health ministers should consider amending the National Law to make it an offence to provide false or misleading information to AHPRA when making a notification and at the assessment stage of the notifications process.
  • AHPRA and the boards should clarify processes related to own motion investigations into practitioners who have made vexatious notifications about other practitioners, including by ensuring there are clear guidelines for staff when an own motion investigation is initiated.

Strengthening guidance and training for AHPRA staff about vexatious notifications

  • AHPRA should deliver ongoing training to staff on applying the framework, including any changes implemented in response to the review’s recommendations.

Appendix 1: Addressing notifications in cases involving domestic and family violence allegations

  • AHPRA should improve how it manages notifications in cases involving domestic or family violence allegations.

Appendix 2: Addressing unreasonably persistent notifier conduct

  • AHPRA should strengthen how it identifies and manages unreasonable conduct and unreasonably persistent notifiers.
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Joe Kosterich
Joe Kosterich
1 month ago

Vexatious can be a high hurdle. Unreasonable or trivial are better indicators

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Christine Colson
Christine Colson
1 month ago

‘Vexatious’ is subjective and open to interpretation. We’ve heard so many stories of ‘investigations’ dragging on for years, of the ‘anonymous or confidential notifier’ (how can one defend oneself against a shadow?), of inadequate communication adding to stress, and so on and so on. Why is it so hard to devise a fair, just and respectful service? All it takes is a modicum of common sense, a dash of flexibility and a ton of professionalism.
 
The number of ‘AHPRA should‘ statements in the article is a bit scary. I imagine that such a number applied to a person’s performance review would result in a sacking…now that’s an idea…
 
Re flexibility. This brings to mind a story told to me by a UK GP who had fled an out of control ‘regulatory’ system in the UK. They had a rule that a GP couldn’t ‘sack’ a patient, for want of a better word, without applying to do this to some body. This process took time. A lot of time. During that time, the subject of the proposed sacking called the doctor out at 0200 every night…. A bit of flexibility by the regulator was in order, yes?

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Peter Grant
Peter Grant
1 month ago

Like many others commenting, I am surprised to see the NHPO expressing an opinon that “truly vexatious” complaints are rare, and I disagree with that statement entirely. It is also an insult to past and present practitioners especially those who retired prematurely after being the victim of an unreasonable, trivial or vexatious complaint. Let’s start calling this abominable process for what it is.

The 17 NHPO recommendations are a marked step forward. I would add the following topics:

18. AHPRA staff are to be trained and monitored to ensure own motion investigations are undertaken and concluded in a prompt manner.
19. The Boards are to ensure all decisions for punitive action against a practitioner include a comprehensive and practical plan of action to be undertaken including a list of other independent practitioners willing and able to act as educators and mentors.
20. An action plan once agreed to cannot be revoked or revised even if it is held by AHPRA staff or the relevabnt Board to be deficient in hindsight.
21. MDOs be approached and asked to develop skilled advocacy sections to poroperly and adequately defend practitioners.
22. The Internal Review Section of AHPRA should be established as an independent statutory body answering to either the Health Minister, Justice Minister or Parliament (separate funding and administrative hierarchy, funded by the Commonwealth).
23. The NHPO needs to be reformulated as a completely independent body from AHPRA and the Boards, with the powers to fully and fairly investigate AHPRA and Board actions and decisions, and the power to ask for dismissal or sanctioning of non-performing AHPRA Officers.
24. External appeals to the relevant States’ Appeals Tribunals should be fully funded by the Commonwealth and the Statute of Limitations extended by at least a year.
25. AHPRA to be held liable for the fiscal damage done for a wrong or incorrect decision, including where there has been administrative malfeasance on the part of its staff.

These are the minimum set of recommendations that might satisfy some of the aggrieved practitioners and former practitioners. I have not dealt with AHPRA staff gleefully telling practitioners that their submitted plan is now revoked and the punitive plan has to be started from scratch without clear or appellable grounds for doing so.

I only briefly touched on practitioners being sent vague directions to arrange for their own punishments (known as “Action Plans”) to be approved only to be entrapped as described above. Admninistrative tricks by AHPRA include asking for a mentor as well as an educator but not specifying that these must be two separate practitioners. Not so easy for a solo practitioner!

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