Defamation risk in reporting colleagues

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