Bill Madden

COULD a mandatory or voluntary notification to the Australian Health Practitioner Regulation Agency about a health practitioner be defamatory, or are such notifications protected?

There is an “in good faith” protection from liability for persons making a notification or otherwise providing information to AHPRA provided by section 237(2) of the Health Practitioner Regulation National Law Act 2009. “Good faith” is defined as “acting honestly, fairly, and otherwise with legal propriety (without fraudulent, ulterior, or otherwise bad or improper motives). Good faith is a subjective requirement, measured against an objective standard”.

Defamation protection is specifically provided by section 237(3)(b) of the Act, which says “no liability for defamation is incurred by the person because of the making of the notification or giving of the information”.

However, the protections appear to leave room for litigation, including claims seeking damages for defamation, if lack of good faith can be proven.

Litigation presently underway in NSW may provide some insights into the application of the “in good faith” protection in the context of mandatory and voluntary reports, even though the current case predates the national law.

The litigation arose from a letter sent by Dr Julian Parmegiani in August 2008 about Dr Yolande Lucire to the then NSW Medical Board. Dr Parmegiani in his letter said he was sending it on the basis that he understood “… it is now an obligation of medical practitioners in New South Wales to report flagrant breaches of standards of professional practice or competence”.

However, Dr Lucire asserted that the relevant provision regarding “reportable misconduct”, inserted as section 71A of the Medical Practice Amendment Act 2008, did not come into effect until a little after Dr Parmegiani sent the letter to the board.

On becoming aware of the letter to the board, Dr Lucire made a claim against Dr Parmegiani with a number of components, including defamation. The lawyers for Dr Parmegiani sought to nip that issue in the bud by bringing an early application to strike out the defamation claim before the matter went on to a full hearing.

They succeeded, at first, as outlined in the NSW District Court case report of Lucire v Parmegiani [2010] NSWDC 115, where the trial judge summarily dismissed part of the claim by Dr Lucire — her claim in defamation — on the basis that the defence of absolute privilege (defined as giving a defendant “complete immunity from suit in certain matters”), provided by the NSW statute, applied.

This decision was the subject of an appeal. The decision by the NSW Court of Appeal in Lucire v Parmegiani [2012] NSWCA 86, which was published on 20 April 2012, held that the making of the report by Dr Parmegiani was not covered by absolute privilege under the relevant NSW statute or at common law. The court decided that the defamation claim made by Dr Lucire should not have been struck out.

The Court of Appeal judgment does not make clear what will happen next. However, presumably the claim by Dr Lucire can now proceed to hearing on its merits in the NSW District Court.

In the absence of a defence of absolute privilege, that hearing may well involve a consideration of the availability of qualified statutory protection under the now repealed section 47 of the Medical Practice Act 1992 (NSW), which provided a “good faith” protection against liability.

This may in turn provide some helpful guidance on how the “good faith” protection against liability in NSW, which is now echoed in the national law, operates.

Mr Bill Madden is the national practice group leader for medical law with law firm Slater & Gordon, and is an adjunct fellow at the School of Law, University of Western Sydney. Associate Professor Tina Cockburn is with the Faculty of Law at the University of Queensland.

Posted 30 April 2012