Georgie Haysom: Bad faith consequences

YOU are a specialist with 25 years’ experience who relishes being on the cutting edge. You have a loyal referral base and have never faced a patient complaint.

Your peer relationships are good with the exception of one colleague you have been competing with since university days, and you both have visiting medical officer rights at the same private hospital.

At recent college meetings and conferences it has become clear that you and this colleague have quite different views about one of your newer treatments.

One of your patients unexpectedly experiences a complication from this treatment and on hearing about this, your colleague reports you to Australian Health Practitioner Regulation Agency (AHPRA) under mandatory reporting obligations.

AHPRA reviews this patient and 20 other patients who received the same treatment in the past 5 years. Eventually AHPRA finds your treatment met the required standard.

However, news of AHPRA’s investigation has been reported in the media and your name is splashed over the front page of the local newspaper, and the hospitals you operate at are named in the stories with a suggestion that they are protecting you.

This case illustrates an important concern about the misuse of mandatory reporting — a problem we think is growing.

Introduced in NSW in 2008 and adopted nationally in 2010, there is no doubt about the need for systems where practitioners who put patients at substantial risk of harm can be reported — the motive for such laws is laudable and sensible. However, we believe that mandatory reporting obligations are being abused.

In October 2011 Avant CEO David Nathan noted that Avant had seen mandatory reporting cases involving “an undertone of market competition or a personal agenda … rather than a genuine concern about the capacity of the doctor to practise at an ‘acceptable standard’”. Little seems to have changed since then.

Mandatory notifications are rising nationally. AHPRA reported a 40% increase in mandatory notifications compared with the previous year in its 2012 annual report.

Unfortunately Avant’s experience, when assisting doctors who have been the subjects of these notifications, has been that in many cases they are not being made with the protection of the public in mind. Rather, a proportion of notifications continue to be motivated by commercial interests, personal gain or reasons other than patient safety.

The statistics seem to support this. AHPRA’s annual report shows more than 60% of notifications related to significant departures from professional practice that place patients at risk. Yet immediate action (which would be taken if the conduct posed a serious risk to persons and action was necessary to protect public health or safety) was taken in less than a third of cases.

In the mandatory reporting cases against medical practitioners that were closed during 2011–2012, 65% were closed with no further action.

Proposed amendments to AHPRA’s guidelines on mandatory reporting confirm that notifications that are frivolous, vexatious or not in good faith in future may be subject to conduct action. A notification arising from a mere difference of opinion or motivated by a desire for commercial advantage is in bad faith.

It is encouraging that the proposed guidelines emphasise that the threshold for mandatory reporting is high. And it should be high.

The potential consequences for a practitioner who is reported are significant; not only financially and emotionally but also with respect to the potential damage to reputation arising from media reports.

A practitioner who has been vindicated after a report continues to feel powerless to do anything about either negative publicity or the situation that prompted the complaint in the first place. This is especially true when the issue hinges on a difference of opinion or a personality clash.

Avant supports the proper use of mandatory reporting obligations where the public is truly at risk of harm. What we object to is the abuse of those obligations for personal or commercial gain, or to lend fuel to the fire of a turf war.

Cases like this can place the colleges, the AMA and the insurer in a position of inherent conflict where they have both the complainant and respondent as their members.

So if you have concerns about a colleague, do some research and get advice before jumping in to report them. Speak to your colleagues (confidentially of course), your college or professional body, or medical defence organisation so that you can be satisfied that a mandatory report is required. Take advice on whether the threshold is met.

A difference of opinion is not a reason to make a mandatory notification.


Ms Georgie Haysom is Avant’s Head of Advocacy and formerly Avant Special Counsel, Medico-Legal Advisory Service and Health Law.