The most egregious cases of medical malpractice are rarely isolated events. In the cases of disgraced gynaecologist Emil Gayed, so-called “Dr Death” Jayant Patel, and notorious obstetrician Graeme Reeves, complaints were made for many years before strong disciplinary action was taken.
So why does it take so long to stop them?
The most recent case that has patients and the medical profession asking this question is that of Dr Christopher Kwan Chen Lee. Over the course of more than two years, he posted degrading and sexist content about women online while also identifying himself as a doctor using his real name. A complaint was first made about Lee in 2016, but it was only in April that he was banned from practising for six weeks. In the meantime, he posted patient information online and photos of dead women.
In a letter to the Australian Health Practitioner Regulation Authority [Ahpra] sent on Wednesday, Victorian health minister Jenny Mikakos told the regulator Lee’s posts calling for the rape of women were “chilling” and said multiple posts Lee made that were not included in the original complaint should be reviewed with “urgency”.
“I consider a six-week suspension to be manifestly inadequate in these circumstances,” Mikakos wrote. “I seek your immediate advice on how a recommendation for a six-week suspension was considered to be appropriate in a case involving such grave allegations.”
Mikakos said she was also concerned that the decision by the Tasmanian health tribunal to suspend Lee was not immediately reflected on the Ahpra register. Ahpra has updated this since being contacted by Mikakos.
While it is up to the independent tribunals in each state and territory to order disciplinary action based on the information presented to it by Ahpra, it is up to Ahpra to make sure the brief of evidence is as timely and comprehensive as possible. Only the most serious disciplinary action is recorded against a health practitioner’s name on the Ahpra register. In many cases, once the disciplinary action is complete – be it a suspension or an order to receive education – it disappears from the public register and patients are no longer able to see a doctor’s chequered history.
The system of making a complaint and investigating it used to be much more complex. Until Ahpra began operation as the national regulatory body 10 years ago, there were 72 different regulatory bodies and professional boards operating throughout the states and territories. It was too easy for the worst practitioners to fall through the cracks and simply pick up and move states to start all over again. Queensland and NSW still have their own disciplinary bodies which cooperate with Ahpra. But the move to a more streamlined system has nonetheless helped regulators better track practitioners and manage the complaints process.
Dr Marie Bismark, a medical doctor and lawyer who has been researching complaints in the health profession for 15 years, says Ahpra should be commended as a regulator other countries aspired to emulate.
“It’s quite extraordinary what Ahpra has achieved, and that is worth acknowledging,” she says. “But there are still things not working well.”
Ahpra works with 15 national boards around the country to implement the Health Practitioner Regulation National Law Act, which operates with slight differences in each state and territory.
“Because of the legislation Ahpra is constrained in what it can investigate, the process that it uses to investigate, and the remedies it can offer,” Bismark says. “Which often means that this kind of commonsense, human touch ends up being lost. What the regulators are tasked with doing is looking at the one complaint that they have before them and assessing the facts of that one complaint and coming to a decision. You miss a lot of important and relevant information if you don’t then look at the wider context. But that’s the way the law is set up.”
Her own research has found the number of previous complaints doctors have against them is a strong predictor of future adverse events.
“I think partly in response to my research Ahpra are more rigorous about looking at someone’s complaints history and identifying reappearing themes,” Bismark says.
“But the system is still not easy to navigate, and there is still a belief that vexatious and small complaints are too often taking precedence and time, while more serious complaints are being delayed.”
An Ahpra spokeswoman says investigations take so long because as much evidence as possible is needed for the tribunals to take disciplinary action. The regulator is nonetheless looking at ways to expedite the process.
“More than 67% of notifications are finalised inside three months,” the spokeswoman says. “As at December 2018, the median time to complete notifications following assessment was 50 days. Assessment includes gathering relevant information, an opportunity for the practitioner to respond to the notification and consideration and decision making by a health practitioner board.” However, almost 20% of notifications about a practitioner took more than a year to close. Of those, 5.5% of cases went for more than two years.
Last year, Ahpra reduced the number of open notifications by 11%, despite a 9% increase in the number of notifications received. But an Ahpra survey of 3,500 people found more than 70% of those who made a notification against a health practitioner were unhappy with the outcome.
According to medical lawyer Bill Madden, there is still a serious gap in the regulator’s ability to accurately predict the risk that a practitioner will reoffend. Currently, Ahpra, the national boards and the public have no way of accessing information about compensation claims made against health practitioners that are settled outside the regulatory system. Making this information compulsorily available would require changes to the national law.
“It would be nice if legislation was changed to deal with some of these gaps,” Madden says. “But I’m not, as a rule, critical of Ahpra itself. The establishment of Ahpra was a good thing and over time they’re constantly improving the way they do things and that’s a positive step.”
Ken Harvey, a professor of public health, is more critical. He believes one national regulator remains the most effective mechanism for managing health practitioners.
“But we still have, at the moment, a disparate system with different bodies involved depending on the jurisdiction,” he says.
“I’m still behind the principle of a national system, but it has broken down. We can put in a complaint to Ahpra in NSW and sometimes it might later end up with the NSW Health Care Complaints Commission, or in Queensland it might go to the ombudsman.” There is also Safer Care Victoria, a healthcare quality and safety improvement agency, but patients can feel confused about which body to complain to. Sometimes the different agencies and regulators fail to communicate, Harvey says.
“The right hand doesn’t know what the left hand is doing,” he says. “The regulators often don’t pass what they’re doing on to hospital boards or employers or health districts. There is nothing that says Ahpra has to tell someone’s employer that they’e been disciplined. Vexatious complaints that should be quickly dismissed are not being dealt with quickly and compassionately, while serious complaints aren’t always been dealt with adequately.
“It’s a system failing.”
