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Under the recently amended Sex Discrimination Act, the medical profession risks attracting the scrutiny of the Australian Human Rights Commission unless sex discrimination, sexual harassment, sex-based harassment, and victimisation of complainants or witnesses are eliminated in its workplaces and training programs.
In 2020, the Respect@Work: Sexual Harassment National Inquiry Report found that Australia lags behind other countries in responding to sexual harassment, revealing 39% of women and 26% of men experienced sexual harassment in Australian workplaces in the previous five years. The report concluded sexual harassment is not only a women’s issue: “it is a societal issue, which every Australian, and every Australian workplace, can contribute to addressing”.
In December 2023 following legislative amendments to Sex Discrimination Act 1985 (Cth), the Australian Human Rights Commission (AHRC) was formally granted new powers to investigate and enforce an employer’s “positive duty” to take reasonable and proportionate measures to eliminate certain types of unlawful conduct. All workplaces, including hospitals, medical practices, and other health services, must now eliminate unlawful behaviours, such as direct or indirect sex discrimination, sexual harassment, sex-based harassment, and victimisation of complainants or witnesses.
Previously, the onus was on victims to file formal complaints about unlawful behaviours, but significant barriers deterred people from speaking up. Under the positive duty, senior leaders in health care, including board members, chief executive officers, medical directors, heads of departments, practice owners and other health care employers should heed the serious repercussions for bystander silence and lack of preventive action, regardless of whether a complaint is made.
It is also unlawful to subject a person to a workplace environment that is hostile on the ground of sex (here and here). This change to the law recognises the cumulative psychological harm associated with repetitive negative behaviour, such as offensive, intimidating or humiliating comments.
As employers frequently turn a blind eye to sex discrimination and sexual harassment, the new powers allow the AHRC to conduct investigations into suspected hostile work environments that condone misogynistic or misandrist attitudes and behaviours. Incidents commonly ignored by employers include failing to take notice of unwelcome touching, suggestive jokes, indirect or direct exclusion, unjustified criticism of people on the basis of sex, patronising or insulting remarks, intrusive questions about private life or physical appearance, and derogatory comments about sexuality, pregnancy, breastfeeding or menopause.
The medical profession risks AHRC scrutiny for several reasons
The suicide rate for male doctors is 1.41 compared with the general population, while female doctors commit suicide at 2.27 times the rate of the Australian population (here). As there is a strong association between workplace harassment and work-related mental injury, intractable high levels of suicide in doctors should raise a red flag.
Several high profile articles and books have recently been published in the general and medical media by Australian doctors on their experiences of gender bias (here and here), discrimination, sexual harassment or sexual assault. As one example, a female doctor-in-training published an account of a criminal sexual assault by a senior doctor supervisor concluding: “the system teaches you to be quiet”. This growing commentary is of concern, and may suggest the medical profession has made little progress in addressing high levels of sexual harassment and bullying widely reported by the national and international media back in 2015.
In relation to gender balance in medicine, marked gender disparities persist across many specialties, also raising red flags about possible sex discrimination. Although there has been gender parity in medical schools since the mid-1980s, Medical Board statistics show surgery currently comprises only 15% of women, intensive care and occupational and environmental medicine comprise about 24%, ophthalmology about 25%, and pain medicine and radiology just less than 30%. Subspecialties such as cardiology comprise only 15% of women, interventional cardiology 5%, orthopaedics 4% and interventional radiology less than 1%.
Although many colleges have developed diversity and inclusion plans, the Australian Medical Association has called for more action on tackling gender inequity in specialist trainee programs, also noting the medical profession’s slow progress on appointing women to leadership roles.
How can workplaces meet the new positive duty obligation?
The new positive duty and work health and safety obligations are outlined in detail by a number of relevant national organisations (here, here, here, here).
In summary, the positive duty requires all workplaces to provide safe, respectful and inclusive environments, and to take reasonable and proportionate measures to eliminate unlawful conduct by themselves, their employees, workers, agents, and other third parties, such as customers, clients, patients, suppliers or visitors. The definitions of unlawful sex discrimination, sexual harassment, sex-based harassment, and hostile work environments should therefore be made known to all.
Unlawful behaviours not only occur in the workplace during work hours, but also after hours, during lunch breaks, when working remotely (from home or offsite), at staff drinks or staff functions (at work or somewhere else), between colleagues outside the workplace and outside work hours or during work-related travel.
Reasonable and proportionate measures by workplaces to prevent abuse may include (but are not limited to) implementing clear and comprehensive policies, providing comprehensive induction, and implementing a fair and confidential complaints-handling procedure to prevent victimisation of complainants or witnesses.
From 2024, the Work Gender Equality Agency (WGEA) will begin to collect data from organisations with 100 or more employees on workplace sexual harassment prevention initiatives.
What are the consequences of unlawful behaviours?
Perpetrators of unlawful behaviours can receive hefty penalties. In addition to fines, remedies and civil claims, perpetrators risk dismissal on the grounds of unlawful behaviours.
Under the Sex Discrimination Act, sexual harassment is a civil not a criminal offence, but criminal law of course applies for some offences, including physical molestation or assault, indecent exposure, sexual assault, stalking, and obscene communications. In a criminal case, the offender can be prosecuted and receive a jail sentence.
Under workplace law, employers can be held liable for wrongs committed by their employees. In fact, in most sexual harassment complaints heard by the AHRC or courts, compensation is paid by employers rather than individuals. There may be extensive fines for loss and psychological injury, but also hurt, humiliation and distress in victims and those who are victimised for reporting unlawful behaviours. Employers may also suffer reputation damage by being publicly named for failing to protect their employees.
Directors and officers of hospitals and other health services are also potentially liable unless they take reasonable steps to fulfil their corporate governance responsibilities and ensure their organisations allocate resources to appropriately to comply with the requirements of the Sex Discrimination Act.
Government health departments are not immune from inquiries or audits for their failure to address psychological and physical safety in health care workplaces. While there are many funding priorities in health care, human resources in health care must be adequately funded by government health departments to comply with federal and state legislation.
The culture of medicine requires urgent attention
The 2023 Medical Training Survey (MTS) conducted by the Medical Board revealed bullying, harassment, discrimination or racism was experienced or witnessed by over one-third of all trainees and over half of Aboriginal and Torres Strait Islander trainees, most commonly perpetrated by senior doctors. There have been calls for the MTS to include a specific question about sexual harassment in the future because of its differentiation from general harassment. Although gender differences were not reported in the MTS, the high voluntary participation rates by trainees suggest there is a hostile culture in some areas of medicine.
In response to the lack of improvement in the MTS findings over the past five years, the Medical Board and the Australian Medical Association have once again called for urgent attention to the culture of medicine by all for all.
In a recent positive step forward, “A Better Culture”, run by a coalition of health professionals, is gathering momentum “to eliminate bullying, to stamp out all forms of harassment, to have zero tolerance for racism, and to wipe discrimination off the face of the profession”. Over 460 individuals have joined its Reference Groups in a groundswell of volunteer support over the past 12 months.
I believe it is now time for the whole medical profession to join this groundswell and embrace our positive duty as a catalyst for unity not division and significant change not lip service. Unlawful conduct is a societal issue, which every doctor and every health care workplace must address.
This means doctors behaving badly must be called out and reminded about the new powers of the AHRC in no uncertain terms — from 2024, you are on notice, regardless of your gender.
This is part 4 of a series on work-related mental injury in doctors and psychologically safe medical workplaces.
If this article has triggered any discomfort, please make a long consultation with your independent and trusted general practitioner, the DRS4DRS program or the Doctors’ Health Alliance to talk about recovery from work-related mental injury.
Clinical Professor Leanne Rowe AM is a GP, a non-executive Director and co-author of Every doctor: healthier doctors = healthier patients.
The statements or opinions expressed in this article reflect the views of the authors and do not necessarily represent the official policy of the AMA, the MJA or InSight+ unless so stated.
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Another outstanding contribution by Leanne Rowe – thank you. Organisations including health services need to be proactive in recognising their responsibilities for responding to the call for “a positive duty”.
My observation is that it’s not doctors who perpetuate or foster a culture of discrimination of any sort (there are always lone wolves) but more so an administration that is usually weak and cowardly to deal with difficult staff but who weirdly seem to protect others who display awful behaviour towards colleagues. At times these badly behaved doctors are put there by administrations to do their bidding.
All workplaces were given 12 months-notice to prepare for the requirements of the “positive duty” and to eliminate unlawful conduct before the Australian Human Rights Commission (AHRC) was formally granted new powers in mid December 2023.
Like many non-executive directors, I received extensive governance training on this topic in 2022 because of the new legal responsibilities and liabilities.
I wrote this article as an independent medical practitioner (PGY44) because I am concerned that there seems to be a general lack of awareness of the “positive duty” at Colleges, other medical organisations and associations, and health care workplaces. It is now urgent that our leaders raise awareness of these important issues and eliminate unlawful conduct amongst their employees, members and health care workplaces.
Contrary to what some of the negative comments below suggest, the medical profession is not above the law. Our “positive duty” legislated in Sex Discrimination Act is NOT optional.
From 2024, doctors who behave badly either by perpetrating unlawful behaviours, creating hostile workplaces or remaining silent bystanders will face scrutiny by the AHRC and serious repercussions – regardless of gender.
Thank you for your succinct, excellent and timely article drawing attention to the important legislative changes and compliance requirements now in effect under the positive duty – a great legacy of Commissioner Jenkins’ leadership and seminal work in Resepct@Work. The obligations under the ‘positive duty’ will complement key national, collaborative evidence-based initiatives that are driving system changes in healthcare and other industry sectors, such as A Better Culture and Advancing Women in Healthcare Leadership (AWHL) in healthcare, and Science in Australia Gender Equity (SAGE) in Australian higher education and research. As system-based and evidence informed approaches, these initiatives will in turn support effective compliance with the obligations under the positive duty. The call for unity is inspiring and the groundswell for change is too strong to ignore.
This article is excellent, but sadly, reading through the comments highlights the cultural entrenchment of the problem. As pointed out in one comment, the effects of sexual harassment and/or discrimination go beyond potential career impacts; they also cause moral injury to those who witness them. Being put in a position to choose between complicity or whistleblowing, with all its associated risks, indicates a failure within the organization. It’s encouraging, however, to see organizations being compelled to critically examine and strengthen their systems.
Well I am PGY 49 this year & I wish I had seen nothing. I wish I had seen no bullying too.
I wish my registrars & their colleagues had experienced nothing. I wish the same for all my colleagues
We face a terrible choice – be complicit or be a whistleblower. I am confident enough but even I have been intimidated by bullies. But I always tried to follow my father’s advice.
My father (whose whole life had been affected by military service & who often got into difficulty for opposing injustice) said that peace of mind is worth whatever it costs.
Have I missed something? I have worked as a doctor for 60 years, mostly in the surgical field, and in all that time I cannot think of any troublesome behaviour from my male colleagues that could not simply be laughed-off. Generally I have been treated as a gentleman should treat a lady.. Some people are rude simply because they lack manners or sensitivity or self-control under stress. Oh wait, there was an examiner in the Finals who bullied me…..but with people like that, as with horses, you must not show fear or feelings of insecurity. Perhaps we should be helping people to develop quiet confidence rather than a victim approach.
Now, when it comes to midwives and the way in which they can bully women, I believe that man’s inhumanity to man is as nothing compared with woman’s inhumanity to women.
@RandallWilliams: on the contrary, I have seen bullying and bad behaviour in almost every hospital I have worked in and across multiple physician disciplines. The problem is often that you have one or two terrible ones, but the rest tend to fall in line / accept the bad behaviour rather than stand up for victims, and when the perpetrator is a more powerful individual (eg head of departments), the other consultants and staff may even fall in line and throw a few stones themselves to curry favour from the main perpetrator. Bullies cannot self regulate. The medical community has failed to self regulate for generations. So perhaps we should give legislation a go. Put departmental / exec bonuses/financing on the line. That usually seems to work.
If you state the number of graduates are roughly 50:50 female and male, and list areas such as surgery where there are more males than females, then by definition there must be areas where the opposite is true; that’s simple maths. So why not list those areas as problem areas? – why does male under-representation in those areas constitute anti-male bias that requires correction? Or is there a presumption here that some specialties, or indeed GP, ie those in which females are overrepresented, are somehow undesirable, and if this is the case, please explain why? Maybe males tend to have a preference for some areas, & females for ohers. Is this a problem
Leanne, thank you for sharing this insightful update on the critical advancements in workplace anti-discrimination laws within the medical profession. The movement led by “A Better Culture” represents a pivotal moment in our collective journey towards a more accountable and respectful healthcare environment.
It’s inspiring to see such a robust and proactive response from the medical community, especially with over 460 individuals joining the Reference Groups. This exemplifies a powerful commitment to eradicate bullying, harassment, racism, and discrimination in our field. The involvement of such a diverse group, including the education and integration of overseas doctors, underscores the universality of this mission. I have lived experience of breaches in doctor to doctor confidentiality and privacy, lying, blocking my request to meet the clinical director by a nurse in a the management of a regional mental health service on the basis racial management privilege .
The Medical Board and the Australian Medical Association’s renewed call to action in light of the stagnant MTS findings over the past five years further reinforces the urgency of this matter. As healthcare professionals, our responsibility extends beyond patient care to creating a safe, inclusive, and respectful workplace for all colleagues.
Your post is a clarion call for every doctor and healthcare professional to rise to the occasion. We must embrace our role in driving significant, tangible change, not just in word but in deed. The new powers vested in the Australian Human Rights Commission serve as a stern reminder that unlawful conduct and discrimination will no longer be tolerated, and that accountability will be mandated for every doctor in management colluding in racial discrimination.
I am keen to speak for unity and respect, where every member, regardless of background or seniority, feels valued and supported. It’s time to move beyond lip service to actionable, meaningful change.
#HealthcareEquality #ABetterCulture #NoMoreSilence
The problem with articles like this is that the implication is that bad or unlawful behaviour by doctors is widespread ( and largely a male doctor issue) Over a period of fifty years in medicine, working in private and public hospital practice both in Australia and overseas, I have certainly observed bad behaviour amongst doctors of all races and both genders ( yes, including some females) but this has been confined to a small minority. Doctors are part of the wider human personality spectrum, and often are competitive and driven. You cannot homogenise and regulate human behaviours and interactions through legislation . There will always be leaders, followers, those who achieve more highly than others, a few bullies and a few criminals in any walk of life. Legislation , codes of practice and protocols are simply a broad perimeter fence to regulate extreme behaviour. The vast majority of doctors do not need external agencies to tell them how to behave. .
Thank you Leanne for making sure every doctor, employer of doctors, colleagues and those who support our medics have access to all of this important information. Healthcare lags community expectations more than other industries in my experience, when it comes to addressing poor workplace behaviour. There is much for healthcare workers to learn in terms of workplace law and accountability. You have given us all a valuable resource, I appreciate your thoughtful and clear research and intend to share your article widely.
Just a clarification here about the suicide statistics: the suicide rate of male doctors in Australia is twice that the female doctors compared to other Australian men working in non-doctor occupation who are 5x times more likely to commit suicide compared to other Australian women.
There is not much difference in absolute rate of working men committing suicide between doctors and non-doctors, however women working as doctors are more than double the risk of committing suicide compared to other women not working as doctors.
https://doi.org/10.1177/00048674221144263
Wow, powerful article Professor Leanne Rowe! Well done!
I don’t think many medical organisations and/or doctors are aware of the new Anti-Discrimination and Human Rights Legislation Amendment that came about late 2022. I wasn’t!
Great to articulate the issues so eloquently and clearly!
Thank you