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DOCTORS who complain about their colleagues under mandatory reporting requirements could be sued for defamation if the complaints are not made in good faith, according to medicolegal experts.
A recent judgment in the NSW Court of Appeal found that psychiatrist Dr Julian Parmegiani, who wrote a letter of complaint about another psychiatrist, Dr Yolande Lucire, to the then NSW Medical Board, was not protected by absolute privilege against defamation. (1)
This decision means that Dr Lucire can now proceed with a defamation case in the NSW District Court.
The case was based on a letter from Dr Parmegiani complaining about Dr Lucire’s competence as an expert witness in a personal injury case. Dr Lucire claimed damages for defamation, injurious falsehood, and for misleading or deceptive conduct under the Fair Trading Act 1987.
Although the case concerned a complaint made before mandatory reporting requirements were introduced, medicolegal experts say it indicates that current complaints do not have absolute protection against defamation. Protection only applies to complaints made “in good faith”.
Since July 2010, doctors have been required to notify the Australian Health Practitioner Regulation Agency (AHPRA) if they have a “reasonable belief” that another health professional has placed the public at risk of harm.
A spokeswoman for AHPRA said there were protections in the relevant act — the Health Practitioner Regulation National Law Act 2009. The act specifies that doctors who make notifications “in good faith” are protected against civil, criminal and administrative liability. (2)
The spokeswoman said she understood that the judgment did not apply to doctors who made a mandatory report in good faith.
Mr Stewart Levitt, principal of Levitt Robinson Solicitors, who acted for Dr Lucire, told MJA InSight that the judgment did have implications for doctors making notifications under mandatory reporting requirements.
“They have to ensure they’re making the complaint in good faith … they can’t think they’re immune just because they’re making the complaint to the medical board”, he said.
He said the case was important because “a lot of people thought they had special protection … but they were operating under a false pretence”.
Mr Bill Madden, national practice group leader for medical law at law firm Slater & Gordon, coauthored a Comment article in MJA InSight discussing some of the legal implications of the case. (3)
Mr Madden said if the defamation case proceeded to the District Court it could include discussion of the protection offered by the “good faith” clause. Although this would be considered under the previous legislation, it could shed light on the interpretation of “good faith” under the current act.
Mr Madden said the recent judgment could, in fact, be reassuring for doctors who believed they were subject of a malicious complaint.
“If doctors make a complaint maliciously, with no real basis, for instance if they’re in competition with another doctor, then that could still leave them open to these sorts of actions”, he said.
MJA InSight has previously reported on doctors misusing mandatory reporting requirements for personal agendas. (4)
Dr Sara Bird, manager of medicolegal and advisory services at MDA National, said she expected all MDOs would be looking closely at the recent case to determine the best advice to give their members.
“It does raise a question mark about how robust [mandatory reporting] protections are”, she said.
“It is significant because now, with mandatory notification, arguably there are going to be more practitioners [making reports about] other practitioners.”
Dr Bird encouraged doctors to obtain advice from their defence organisation before making a notification.
– Sophie McNamara
1. Court of Appeal NSW Lucire v Parmegiani & Anor [2012] NSWCA 86
2. Australian Health Practitioner Regulation Agency: Legilsation
3. MJA InSight 2012; Online 30 April
4. MJA InSight 2011; Online 31 October
Posted 30 April 2012
To the commenters above who are concerned by Dr Lucire’s publications: Perhaps you should read and understand the science and the history of psychiatric drugs and then be concerned about what passes for consensus medical treatment. What concerns me far more is docile medical practitioners who believe everything they are told and harm patients with inappropriate prescribing. Note, this is not an ‘anti-medication’ comment, but a cry for comprehensive education and patient care (e.g., understanding medication side effects when you see them in patients is a good start).
So no expert witness is a threat to any patient?
The expert witness is caste in the role of the powerful specialist, while the person being examined is what- not a patient ?The expert witness game is a charade ,misusing a medical model where the examinee is caste in the role of the patient, but is not, protecting the expert from any duty of care to the patient. Conflict of interest-money is obviously not a conflict. There is NO recourse to the AHPRA for the hapless examinee-the board refers them to complain to the legal system, who appointed them, and therefore find no fault-read Austlii. Dr. J.P. would, in my opinion, may have better addressed his complaint against Dr.Y.L. to the personal injury case, rather than to the board.
Obviously health professionals who are mass murderers fall readily under the proclamation that “Doctors are required to notify the AHPRA if they have a “reasonable belief” that another health professional has placed the “public” at risk of harm ” . Failing mass murder etc by said “health professional” , the AHPRA requirement is incomprehensible as there is no definition of the “public” nor of “harm”.
Therefore the AHPRA needs to revise its requirements , including to define “public” and define “harm”.
Does “public” mean any person, (should any health professional fined for speeding or smoking in a public place be notified?),
and what is the definition of “harm” -prescribing Seroquel to a patient who gains weight and develops diabetes, precribing Ritalin or Roaccutane to a child /teenager who later suicides, cryotherapy to a BCC which later invades deeper tissues ?
Mandatory reporting relates to the need to protect patients from harmful doctors. What distinguishes this case from other reporting to the medical board is the fact that it was an expert witness in a court case. No immediate threat to any patient. An expert witness is only a small piece of a puzzle in the legal system or case — ultimately it is up to the judge/jury to accept their statements. Although it is a requirement for experts to aid the court/judge it is clear from the many reports that I have read that this is not the case and the same names appear as the plaintiff expert. These people are known as ‘hired guns’ and generally because of this what they have to say is less valuable. Usually when there are issues with expert witnesses, then the lawyers will generally complain to the medical board – leave it to them. But if there is a doctor that is practicing dangerously (not just different to you) then in good faith you should report it with the reasons why you believe it is dangerous.
The ‘reporting’ incident is not so much about questioning who qualifies to be an expert, as the uncomfortable implications of this expert’s view. Freely available for many to read on her website:
Uncomfortable indeed:
1. Re-focussing Upstream: New generation drugs and public health. This paper seeks to inform Australian health professionals, health administrators, prescribers and citizens that what they have been told by the pharmaceutical industry about a whole new generation of ‘serotonin’ drugs is simply not true. (2008)
2. SSRIs: Forensic Issues. Risk Benefit Analysis and Potential for Litigation In Australia. Duty to warn? (Powerpoint) Presented at RANZCP Forensic Section Conference October 2003 Geelong
3. Do SSRIs cause Suicide (2004) (Powerpoint).
4. Four seminal papers on SSRIs and their complications.
Ronald Wm. Maris, PH.D. – Suicide and Neuropsychiatric Adverse Effects of SSRI Medications: Methodological Issues. Daubert : Competent Science on SSRI – Suicide (2002).
David Healy, MD; Chris Whitaker, MSc – Antidepressants and suicide: risk-benefit conumdrums (2003).
Peter R. Breggin – Suicidality, violence and mania caused by selective serotonin reuptake inhibitors (SSRIs): A review and analysis (2004).
The Work of David Healy has informed all these papers.
5. SSRIs: Do they cause suicide? The Science: Daubert Admissible evidence. Australian Academy of Forensic Sciences, May 19, 2004. In Press. Also Interantional conference of medical law, Sydney
Are not psychiatrists trained in the diagnosis and treatment of mental disorders? How does this training make Dr.P “expert” on competence or anything else outside his training? Perhaps psychiatry should move towards evidence-based medicine and leave witch hunting to the dark ages. Should all experts and complainants have to be examined for bias prior to any board or court accepting their “expert evidence” or complaint?
This article is trying to make an issue where there isn’t one.
The case cited is not at all applicable to the new regulations, as the letter in question was not protected by the new act.
The point that referrals to the Board have to be made “in good faith” is obvious – of course if you make a complaint for personal reasons you’ll still be open for action – doesn’t everyone already know this?
The following case might be of interest:
http://www.mcnsw.org.au/resources/1208/Lucire,%20Yolande%20No.%202%20-01…
I recognise that there is, perhaps a “Star Chamber” association in some minds but I can also attest to the difficulty of bringing a rogue practitioner to book.
I also recognise the plight of “Anonymous” as I have friends in similar situations, doing the best they can for their patients which is seen by uninvolved third parties as being “unprofessional” but not unreasonable or even illegal.
The boards are not our friends.
“Sadly the “Star Chambers” that call themselves Medical Boards operate on the principle of presumed guilt. “If you didn’t do it you wouldn’t be here.” “
I cannot agree more, having been on the rough end of the pineapple, it is so very very true. I am about to be censured for communication a patient history (drugs and alcohol issues) to a pharmacist, not because the patient complained or objected, but because I failed to get prior written consent. This has implications for other doctors out there, next time a pharmacist phones about an allergy or a medication error, please make sure you have prior written permission of the patient!
Sadly the “Star Chambers” that call themselves Medical Boards operate on the principle of presumed guilt. “If you didn’t do it you wouldn’t be here.” This is justified by the need to protect the public. Sadly they forget that doctors too are members of the public.
Ignorance of standards of proof, failure to understand laws of evidence, and draconian and relatively unrestricted powers are three failings that convince me that I would never willingly report any colleague, mandatory or otherwise, other than in a case of an immediate and real risk of harm to another person. Even then I would discuss it with my medical indemnity insurer. Of even greater concern is that these “Star Chambers” we call Boards deny any legal expertise yet purport to administer the law. That in itself is conduct which fails our own ethical tests.
We are not policemen, we are not paid to be policemen, and the Boards are NOT our friends and colleagues. Don’t kid yourself.
Professionals complaining about other professionals should be done with support of other peers (2) and with ‘legal’ advice otherwise we are just “gossiping, idle talking, back-biting & speaking ill of others”….let us maintain professionalism,
intergrity and honesty!!!
This should be self evident.
This should also apply to people who give ‘expert witness’ that is either NOT expert witness or, contrary to the perceived collective wisdom, is still accepted by predatory boards as ‘expert witness’, particularly when, as we have seen in a number of cases in Victoria at least, said ‘expert evidence’ is then used to crucify a person..
‘It’s my opinion” or ‘It’s my experience’ should not be allowed to override ‘This is the common viewpoint/acceptable variance in practice’, who ever makes the decision. And if there is a disagreement, the principle of Common Law should apply which is the person being grilled by these latter day Star Chambers should be given the benefit of the doubt and not the other way around.