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QUALIFIED privilege legislation enables “open and frank” case review to improve clinician and health service performance, but experts are concerned that the protections may also be shielding a small proportion of clinicians with persistent poor performance.
Writing in the MJA this week, Associate Professor Susannah Ahern, medical administrator and academic at Monash University’s School of Public Health, and co-authors have called for a review of Australia’s qualified privilege legislation to ensure that it is striking the right balance between professional and public interests.
The importance of qualified privilege protection was highlighted in the UK Bawa-Garba case, the MJA authors noted. While Dr Bawa-Garba’s personal reflection regarding the death of a young boy from septic shock was not made available in court, there was concern that there was no statutory protection of such documentation in the United Kingdom.
“The case highlighted to doctors that, for various quality improvement purposes, they are asked to do this reflective and critical analysis of their own performance, but in some ways that makes them vulnerable if they are not protected,” Associate Professor Ahern told InSight+. “We do have protection for those activities here in Australia.”
“Qualified privilege legislation is being used by [professional colleges and societies, and research institutions,] and has been a really effective framework in supporting peer review and audit,” Associate Professor Ahern said. “But I think community and government expectations around issues of public safety and transparency have changed in the [past] 20 years or so, and I don’t believe that the current legislation gets that balance quite right.”
Qualified privilege legislation was introduced in Australia in 1992 as an amendment to the Health Insurance Act 1973 (Cth) to enable “open and frank discussion by health professionals participating in the peer review of clinical cases by hospital and health service committees”.
Prior to this, health datasets were protected by privacy legislation. But data could potentially be accessed by third parties, such as the Australian Health Practitioner Regulation Agency (AHPRA) or health care complaint agencies, through freedom of information requests or in connection with legal proceedings.
The legislation encourages participation in review processes by ensuring confidentiality of patient information and protection from civil proceedings for committee members assessing the quality of health services provided by others, the authors said.
“But what this also means is that people who manage the data are not able to disclose anything either. So, if a registry or an audit identifies a persistently poor performing clinician, they would not be able to disclose that to [a college or a society so the clinician could be offered remediation or other support mechanisms],” she said, noting that this would be a rare occurrence.
“The Medical Board estimates that about 6% of clinicians are performing poorly, so the majority of clinicians are doing an absolutely fine job.”
She added that the MJA article suggested that disclosure be permitted only to relevant colleges and societies, or to the participating health services, and not to AHPRA or jurisdictional health complaints agencies.
Associate Professor Ahern said the qualified privilege legislation was last formally reviewed in the early 2000s by the former Australian Council for Safety and Quality in Health Care.
At present, 30 activities are afforded protection by the legislation, with most being activities overseen by medical specialty colleges or societies. Some clinical registry data are also afforded qualified privilege protection.
“Qualified privilege is still being actively used and there are new applications every year,” said Associate Professor Ahern, who manages six clinical registries at Monash University. “In 2018, there were another five activities approved and a similar number for each of the previous years.”
Asked if changes to qualified privilege legislation may deter doctors from participating in clinical review activities, Associate Professor Ahern said it was important for medical colleges and societies to be part of the review process.
“Many quality assurance activities are driven by the clinicians in the first place and the majority of clinicians are interested in feedback about their own performance,” she said. “We have to be careful that we don’t do something that would throw the baby out with the bathwater. There is always this risk in any legislative change unless the clinical groups have buy-in to the changes. And this would affect such a small number of clinicians that I don’t think, in the balance, it would deter the majority from participating in activities that are very beneficial to them.”
Split health systems, one funded differently with one more fiscal autonomy, shielded outcomes and a primary business approach whilst the other does most of the training, practicing to different outcome parameters are never comparable.
The transparency of the public sector should be invested in properly otherwise change can never occur.
If it’s not broken, don’t pretend you’re fixing it. As someone who works both in clinical medicine and in academia, I can assure Prof Ahern that there are far greater issues to address at the uni / teaching level. Very few graduates (and some academics) seem to understand the difference between correlation and causality, something I would have thought would be basic info for Public Health.
leave alone. it works. ( Former ACT Medical Board Member)
I don’t believe changing the current legislation is the way to improve outcomes in healthcare. Having chaired a privileged committee for two decades, I am confident that even the very few consistently poorly performing clinicians are not being protected by this means,
On the contrary, the vast majority of preventable incidents are facilitated by the same types of systemic problems being described again and again. In NSW, root cause analysis is performed under privilege for all serious incidents, and is not permitted when clinician performance issues have been identified. The question to ask is “Why are these known ubiquitous system failures not being corrected?”
Outdated top-down hierarchical management practices in a politically stunted myopic culture have been the overwhelming factor in preventing better outcomes, not clinical decision making. Clinicians are expected to work in a broken error-prone system run in a fiscally fear-ridden climate where management competency is a career handicap. It is frustrating to watch the obscene waste of resources on undercooked programs and external reviews that fail to produce any meaningful change.
Time rather to review the management of acute healthcare in this country, and its role in an integrated system of social and preventative wellness, with primary provider coordinated care across all ages. But that is so much harder than focusing on clinician performance. Do we have the will to tackle the real problem?
It seems to me that there is considerable confusion over what qualified privilege actually protects. It doesn’t protect against discovery of known facts i.e. what happened. It does prevent discovery of a disparaging remark made by one doctor against another during a meeting (covered by qualified privilege) discussing the event.
It may be that some doctors consider qualified privilege protects them from being sued for a medical error. In my inexpert non-legal opinion, this is not the case. Evidence is to the contrary, ie open discussion with patients reduces risk of litigation.
It might be better for all doctors to adopt a no blame attitude to investigation of errors, and to promote open disclosure as the right thing to do in all cases.
The legislative change required is one that will require AHPRA & the Medical Board to conduct Airline safety type root cause analyses that examine the systemic causes of error & poor outcomes. In other words prevention, not the protection of politicians and their cyphers who determine resourcing and other organisational issues that contribute to poor outcomes to a far greater degree than any individual doctor on the ‘front line’.
Were the airline safety system to follow AHPRA’s modus operandi, no systemic lessons would ever be learned and planes would fall from the skies on a weekly basis…but at least the politicians would be protected.
FROM THE EDITOR: Dear Bryan, may I suggest you read A/Prof Ahern’s MJA article that is linked to from this article.
I felt the ‘cold chill’ down my back as i read this. More lawyers scrabbling to feast on doctors. This legislation has allowed for a generation of doctors to improve quality of care without threat.
Associate Professor Ahern said. “But I think community and government expectations around issues of public safety and transparency have changed in the [past] 20 years or so, and I don’t believe that the current legislation gets that balance quite right.”
Show me any evidence please, not just conjectures and the obligatory bending to ever tightening community and government expectations.
This is an opinion piece by our self-appointed Professional Standards colleagues in Public Health. Do not confuse it with science.
Please leave the legislation alone. Free and frank discussion at Morbidity and mortality meetings is the cornerstone of QA for most of us in procedural specialties. Interestingly the poor performers, and we generally all know who they are, never seem to present at such forums even if they ever bother to turn up at all. We constantly feed back to medical advisory committees about poor performers but in private they don’t care if they’re still bringing in the money. Hospitals need to be more accountable and not rely on peers to stick their necks out and report these sometimes vicious psychopaths who love nothing more than a good libel suit! No thanks I’ve got a family to look after first and foremost.