WHAT would you do if you received notice from your hospital that your clinical privileges had been restricted with immediate effect?
What if the decision was apparently made on the basis of “concerns” raised by other staff members about the way you had treated some patients at the hospital?
Many doctors in cases like this, where decisions have impacted on their ability to practise but minimal information has been provided about how the decision was reached, have sought help from Avant. Some cases have gone as far as the Supreme Court to get justice.
Taking issue with the process of reaching a decision is not unusual — if we believe there has been a denial of procedural fairness or natural justice in a decision that adversely affects members, we will argue the point. But why is natural justice and procedural fairness so important?
The High Court Chief Justice Robert French noted that: “There is a tendency in some quarters to regard procedural fairness as a species of ethical ornamentation, a moral luxury which is a drag on efficient decision-making”.
Decisionmakers do, indeed, often demonstrate that they believe this is the case —if the decision is the “right” one, why does the process by which that decision is made matter? Isn’t this just the lawyers making work for themselves by arguing about process?
The process is of fundamental importance. Fairness is at its heart.
Decisionmakers have a legal duty to act fairly and to observe the rules of natural justice when making decisions that affect an individual’s rights. The rules should be followed regardless of the merits of the case.
Implicit in the requirement of procedural fairness is that an unfair process leads to an unjust decision. You only have to look to countries where people are held without charge and convicted without a proper hearing to understand why fairness in decision making is important.
The “hearing rule” is one of the key rules of natural justice. The decisionmaker must give an individual whose rights will be adversely affected an opportunity to be heard. The individual has a right to know the key aspects of the case against him or her, and this requires disclosure of potentially adverse information.
Next comes the “no-bias rule”. The decisionmaker must be impartial and objective, and free from bias or the reasonable apprehension of bias. Decisionmakers should not prejudge a situation or base their decision on preconceived views.
Third, there is the “no evidence rule. This requires that decisions be based on relevant and probative evidence. The Australian Health Practitioner Regulation Agency provides a useful summary of the rules of natural justice.
Although these rules look simple, determining what amounts to a fair process in a particular case can be difficult.
The rules of natural justice are flexible. They depend on the precise circumstances of the case, including the nature and subject matter of the inquiry, and the framework and rules under which the decision is being made.
In a free and democratic society such as Australia, we all expect our rights and interests will not be affected capriciously. If our rights and interests are to be adversely affected then we expect to know why, and to have the opportunity to answer the case against us. We expect decisions to be made by impartial and independent decisionmakers and for those decisions to be based on relevant evidence.
Advocating for procedural fairness involves representing individual doctors, and calling for improvements in regulatory, disciplinary and complaints-handling processes.
Doctors who are under investigation or review (whether an internal organisational process or an external regulatory process) should be given all relevant material under consideration in a timely manner. They must also be given a sufficient opportunity to be heard on matters affecting their ability to practise.
Decisions should be made independently and objectively, on the basis of relevant and cogent evidence.
Only then can we be satisfied that the decision has been made fairly and properly, and is right and just in the circumstances.
Ms Georgie Haysom is the head of advocacy at Avant.
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