Vexed problem of improper complaints

“I was the victim of what I considered were two vexatious reports from a colleague. Both notifications, which contained multiple untrue accusations to AHPRA [Australian Health Practitioner Regulation Agency], were found to be without foundation, and both had been done under the guise of ‘in good faith’ reporting, which gave the reporting doctor protection and immunity. Considerable harm was done to my reputation, my family and my practice, and it cost the community a large amount of money to investigate.”

THE improper use of the complaints process has been an ongoing issue for Avant members for several years. It continues to be a concern, as called out in the recent Senate Community Affairs References Committee inquiry into medical complaints. The comment above is one recent example from an Avant member; in this case, the complaint was made by another doctor.

Of particular concern are cases where there does not appear to be a patient safety issue, where the complaint appears to be motivated by something else. In such cases, complainants may be dissatisfied with the outcome of legal processes (such as workers compensation or Family Court matters, where the complaint is against the medical expert who provided a report), or they may be seeking retribution from the health care professional, for example, for not prescribing a Schedule 8 drug. Other scenarios include a relationship breakdown (personal or professional), a turf war between competitors, or simply dislike of a new doctor in town or the way they practise.

Regulatory agencies and complaints bodies have the power to dismiss complaints in appropriate circumstances, including when the complaint is vexatious. Often, our members ask us why the regulator or other complaints body didn’t dismiss their case on this basis, when they have the power to do so.

Partly, it depends on what is meant by a vexatious complaint. The ordinary meaning of vexatious is “causing or tending to cause annoyance, frustration, or worry”. But the legal meaning is different.

Vexatious is used in many pieces of legislation. It usually appears as part of a legislative provision, and gives power to judicial and administrative decision makers to dismiss proceedings and complaints on the basis that they are “frivolous, vexatious, misconceived or lacking in substance”.

The legal definition of vexatious is narrow, and the threshold for whether a legal action or complaint is vexatious is high: it has been interpreted in the case law as “so obviously untenable” and “so clearly untenable that it cannot possibly succeed”, such that it constitutes an abuse of process.

The number of complaints to regulators and other bodies that fall within this legal definition is likely to be very small. In this type of complaint, there is no real substance to the complaint and it is made without good intent, for personal reasons, rather than disclosing a risk to patient safety.

By way of illustration, the Victorian Civil and Administrative Tribunal recently granted an “extended litigation restraint order” against a patient, based on an application from four doctors. The doctors had been the subject of more than 30 complaints to the Health Complaints Commissioner and applications to the tribunal, in relation to medico-legal reports they had provided about the patient.

To make the restraint order, the tribunal had to be satisfied that the person had “frequently conducted vexatious proceedings, either against a person or other entity, or in relation to a matter”.  The tribunal accepted the submission by the doctors that the proceedings were an abuse of process, and were commenced without reasonable grounds to harass and annoy the doctors. The tribunal made the orders based on the “persistent, repetitive issue of proceedings regarding identical or marginally dissimilar subject matter in the face of repeated indications from the commissioner and the tribunal that these proceedings are doomed to failure”.

While such cases seem clear-cut, dealing with the less obvious cases is likely to be a matter of ongoing debate. The Senate Committee acknowledged that “vexatious complaints are not always readily apparent,” but was “not convinced that AHPRA’s processes are adequate for the purpose of identifying complaints made vexatiously”.

We suspect that if a complaint about a doctor is made by another doctor, and the complaint mentions a risk to patients, more weight is given to that complaint by the regulator. While there are always two sides to every story, we have assisted doctors to respond to complaints that the doctor believes have been made for improper purposes, dressed up as a patient safety issue. A regulator charged with protecting the public may be hard-pressed to ignore such a complaint where it has been made by another health professional.

In our experience, the number of cases where complaints are made for an improper purpose is small. But as the Senate Committee report recognised, these cases can have a devastating impact on the practitioners involved, their professional reputation, their practice and their families. In our experience, if a complaint is made by a peer or a colleague, the shame and humiliation associated with the complaint is magnified. These effects cannot and must not be underestimated.

We acknowledge the AHPRA commitment to commissioning research on these types of complaints in order to try to understand how and why people make them and what can be done about them. The Medical Board of Australia has said it will strengthen the code of conduct and establish a benchmark to enable it to take further action against a practitioner who makes a complaint purely to damage another registered practitioner. This raises the question whether this means that we will now see the board take disciplinary action against a practitioner who makes a complaint of this nature.

The language to be used in the code is also important: given the difference between the lay meaning of vexatious and the legal definition, we would suggest that the word vexatious not be used. Instead, a better description is the use of the complaint process for “inappropriate or improper purposes”.

It is important that we have a complaints process that is transparent and fair so that it has the confidence of the profession and the public. But it is important that the complaints process is used for proper purposes and not by people who have an axe to grind.

Georgie Haysom is the head of advocacy at medical defence organisation, Avant. She is a lawyer by background with extensive experience in assisting medical practitioners in a wide range of medico-legal matters.

 

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