Changes to the medical complaints process in Australia

The Australian Health Practitioner Regulation Agency (AHPRA) is the organisation responsible for the implementation of the National Registration and Accreditation Scheme across Australia. AHPRA’s operations are governed by the Health Practitioner Regulation National Law, as in force in each state and territory (the National Law). AHPRA supports the 14 National Boards that are responsible for regulating the health professions. Under the National Law, AHPRA works with the various health complaints entities in each state and territory to decide (among other things) who should take responsibility for and manage a complaint made against a registered health practitioner.

There has been considerable focus in the Australian community in recent years on the issue of workplace bullying and harassment in the medical profession following a series of prominent doctors making public comments about the profession’s culture.  On 2 February 2016, the Senate referred the medical complaints process in Australia to the Community Affairs References Committee (the Committee) for inquiry and report.

A focus for the inquiry was how the medical complaints process in Australia, overseen by AHPRA and the National Boards, has itself been misused by some medical practitioners as a form of bullying and harassment. The committee also investigated broader questions of bullying and harassment within the profession, including its prevalence and barriers to the reporting of it. Throughout the inquiry, the Committee received examples of medical practitioners whose careers and lives have been affected by what they believe are vexatiously made complaints lodged against them by colleagues or competitors.

The terms of reference for the inquiry were:

1. the prevalence of bullying and harassment in Australia’s medical profession;
2. any barriers, whether real or perceived, to medical practitioners reporting bullying and harassment;
3. the roles of the Medical Board of Australia, the Australian Health Practitioners Regulation Agency and other relevant organisations in managing investigations into the professional conduct (including allegations of bullying and harassment), performance or health of a registered medical practitioner or student;
4. the operation of the Health Practitioners Regulation National Law Act 2009 (the National Law), particularly as it relates to the complaints handling process;
5. whether the National Registration and Accreditation Scheme, established under the National Law, results in better health outcomes for patients, and supports a world-class standard of medical care in Australia;
6. the benefits of ‘benchmarking’ complaints about complication rates of particular medical practitioners against complication rates for the same procedure against other similarly qualified and experienced medical practitioners when assessing complaints;
7. the desirability of requiring complainants to sign a declaration that their complaint is being made in good faith; and
8. any related matters.

On 10 May 2017, the Committee handed down a report following an inquiry into the complaints mechanism under the Health Practitioner Regulation National Law. The  report made 14 recommendations, including:

1. AHPRA review and amend the way it engages with notifiers throughout the process to ensure that all notifiers are aware of their rights and responsibilities and are informed about the progress and status of the notification.
2. AHPRA and the national boards develop and publish a framework for identifying and dealing with vexatious complaints.
3. The Council of Australian Governments (COAG) Health Council consider whether recourse and compensation processes should be made available to health practitioners subjected to vexatious claims.
4. AHPRA and the national boards institute mechanisms to ensure appropriate clinical peer advice is obtained at the earliest possible opportunity in the management of a notification.
5. The COAG Health Council consider making a caution an appellable decision.
6. AHPRA take all necessary steps to improve the timeliness of the complaints process and calls on the Australian Government to consider avenues for ensuring AHPRA has the necessary additional resources to ensure this occurs.
7. AHPRA institute a practice of providing monthly updates to complainants and medical professionals whom are the subject of complaints.

Case Study

A Tasmanian orthopaedic surgeon, Dr Fettke, who was told by AHPRA to stop giving specific nutritional advice is one of several cases that prompted the Senate committee to call for the inquiry. Doctor Fettke started pushing for changes to the food in the Launceston General Hospital where he worked and then criticised the hospital for a lack of action. According to Dr Fettke, an anonymous complaint from a dietician at the hospital sparked an investigation into his practice.

Two and a half years later Dr Fettke was cautioned by AHPRA to stop using any platform to give nutrition advice. AHPRA did not accept that Dr Fettke’s medicine studies of themselves provided sufficient education or training to justify him providing specific advice or recommendations to patients or the public about nutrition and diet, such as the LCHF lifestyle concept.

Using parliamentary privilege, Dr Fettke told a Senate inquiry he had experienced “systemic bullying and harassment” related to “a prolonged and vexatious AHPRA investigation”.

Post by Claudine Watson-Kyme