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Preference: Law

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Can doctors continue to be reflective without fear of prosecution?

Avant’s event ‘Medical manslaughter – could it happen here?’ was attended by a cross-section of doctors from all specialties and career stages, and prompted a stimulating discussion on the use of doctors’ reflective statements.

Chaired by Dr Penny Browne, Chief Medical Officer, Avant, the event held in Sydney, started with an eloquent summary by Sydney barrister, Ragni Mathur, of the landmark UK criminal conviction of Dr Hadiza Bawa-Garba.

An expert panel discussed the implications of the case for doctors in Australia and answered audience questions. The panel included Dr Greg Kesby, President, Medical Council of NSW, Dr Susan Hertzberg, emergency physician and Senior Medical Advisor, Helen Turnbull, Special Counsel, Professional Conduct, Avant.

UK paediatric registrar, Dr Bawa-Garba was convicted of manslaughter on the grounds of gross negligence after a six-year-old boy died while in her care. Subsequently, she was struck off the medical register for life, sending shockwaves throughout the medical profession. A further appeal saw the decision to strike her off overturned, reinstating the original penalty imposed by the Medical Practitioner’s Tribunal of a one-year suspension.

In this tragic case, a litany of errors and system failures contributed to the death of Jack Adock. It was Dr Bawa-Garba’s first full shift in an acute setting after returning from maternity leave, she had worked 12-13 hours straight without breaks covering multiple wards and the ED, the hospital’s electronic computer system had failed leading to a delay in receiving blood test results, the hospital was also relying heavily on agency nurses and her consultant was out of town teaching for part of the shift.

The English Crown Court ruled there were many failures that attributed to Jack’s death. The most significant of these were that Dr Bawa-Garba misread or misunderstood the blood gas results, waited five hours to review the chest x-ray results and failed to follow up on full blood test results that indicated Jack was in renal failure and septic shock.

Expert panel weighs in

One of the key concerns for doctors has been the use of Dr Bawa-Garba’s reflective statements. These were not admitted as evidence during her trial, however the prosecution were privy to them and the admission of her failures.

This has left the medical profession feeling apprehensive, with many doctors concerned that if reflective statements are going to be used against them, they will stop making them.

The panel considered the use of reflective statements in professional development, training and criminal proceedings and whether these are protected in Australia?

A balancing act

Reflective diaries provide doctors with the opportunity to reflect on their performance and learn from their errors. Being open, transparent and honest after an adverse event, both with your patients and yourself is an important aspect of professionalism and improving patient safety.

Reflection is also crucial in developing a just culture that encourages full disclosure, acknowledges doctors make mistakes, supports learning from unsafe processes and systems, but also maintains professional accountability.

“Regulators or the complainant are looking for doctors to show insight and understanding after an adverse event has taken place, but how are they meant to do this without being reflective? So it is a real balancing act,” Ms Turnbull said. “From my experience of working in this area for 20 plus years, the use of reflection is a real advantage. It is very persuasive and can achieve more good than not.”

Currently no Australian college mandates the use of reflective diaries as part of their training programs or CPD, although it is compulsory in the UK.

The Medical Board of Australia Professional Performance Framework however, does encourage doctors to “commit to reflective practice and lifelong learning”.

So where to for reflection?

Under Australian law there is no privilege or protection for doctors on the use of their reflective diaries.

However, as Ms Mathur said, “If you are charged with a criminal offence, you do have the right to silence and should exercise it. So the main tension comes from the fact that a single adverse event can lead down a number of different investigative paths, including hospital investigations, coronial inquests, disciplinary, civil or (rarely) criminal proceedings. She agreed that in contrast to a criminal charge, if your conduct is being investigated in a disciplinary context, the onus is on you to be candid and frank as this indicates insight. This will go a long way to affect the decision of the regulatory authority.”

In practice, the regulator is reluctant to prosecute a disciplinary matter if there is a criminal matter on foot because the regulatory investigation could completely compromise the criminal case.

Ms Mathur also said, “To safeguard doctors against self-incrimination during their evidence in coronial proceedings, a certificate can be applied for – this protects the evidence from being used against them in criminal proceedings.”

It is also important to note that there are apology laws in Australia that can protect apologies from being used in legal proceedings. Further, certain quality assurance committees and programs, such as root cause analysis of system errors attract qualified privilege, and cannot be admitted in evidence in legal proceedings.

Rather than avoiding self-reflection, the strong message from the panel was that it is essential to seek legal advice early so that your interests can be protected, whichever path an investigation takes.

Due to the overwhelming success of the Sydney event, we recently held similar sessions on Dr Bawa-Garba’s case for members in WA and QLD.

Justine Beirne, Avant’s Head of Medical Defence and Service, QLD, chaired the first event in Brisbane on 22 August. Ms Beirne was joined by an expert panel including Andrew Brown, Queensland’s Health Ombudsman, Dr Susan O’Dwyer, Chair, The Queensland Board of the Medical Board of Australia, Jane FitzGerald, Barrister, Trudy Naylor, Barrister, Dr Mark Woodrow, Emergency Medicine Specialist and Medical Advisor, Avant, QLD and Claire Bassingthwaighte, Practice Manager Disciplinary, Avant Law, QLD.

In Perth, Dr Penny Browne and Ragni Marthur were joined by an expert panel on 10 September to discuss the implications of the case in Australia. The panel included Morag Smith, Senior Solicitor, Avant Law, WA, Desiree Silva, Professor of Paediatrics at Joondalup Health Campus and University of Western Australia, and Professor Con Michael AO, Chair of the Medical Board of Western Australia.

Member feedback on the sessions has been very positive. Members have described the events as being informative and engaging, and said they found Avant’s support reassuring.

This article was originally published by Avant Mutual. You can access the original here.

[Comment] Childhood mortality during conflicts in Africa

The International humanitarian law differentiates two types of armed conflicts: international (between states) and non-international (domestic).1 Since 1989, 75% of non-state armed conflicts have been in Africa.2 Children and women bear most of the burden of these events. Childhood deaths due to conflicts present a real threat to the achievement of the global target of ending preventable deaths of children by 2030.3 Despite the link between armed conflicts and direct deaths (combat-related) and indirect deaths (excess mortality because of worsening health disparities and disruption of basic health services), most assessments of childhood deaths done to date have not explicitly incorporated the effect of conflicts on child survival.

[Editorial] A surrender to dirty energy

On Tuesday, Aug 21, US President Donald Trump announced a new plan governing carbon emissions from energy production in the USA, entitled the Affordable Clean Energy plan (ACE). The ACE plan would supersede an earlier plan, the Clean Power Plan (CPP), the implementation of which was delayed by lawsuits. While the CPP would have required states to reduce carbon emissions and encourage a move away from coal power generation, the ACE plan would return regulation of carbon emissions from energy production to the states.

Green light from Committee for Gold, Silver, Bronze, and Basic

The Federal Government’s proposed private health insurance policy reforms look set to become law this year after a Senate Committee recommended passing the Bills.

The Committee investigating the new Gold, Silver, Bronze, and Basic policy proposals made just one recommendation when it reported in the first sitting week of the Spring session of Parliament – “that the Senate pass the Bills”. 

Committee Chair, Liberal Senator Slade Brockman, said that the Committee recognised that some people still had concerns about the policy categories, and the rules that will implement the product reforms.

“Some submitters disagreed with the inclusion of a Basic policy,” Senator Brockman said.

“CHOICE, the Australian Medical Association, the Australian Private Hospitals Association, and Day Hospitals Australia objected to the category on the basis that these policies provide low value cover to consumers, and exist to take advantage of the financial incentives provided by Government.

“Submitters also expressed concerns that, if the draft rules were adopted, particular products or services may only be available in high product tiers. For example … the AMA considered that, as 50 per cent of pregnancies are unplanned, pregnancy should be covered in Bronze rather than Gold.”

Senator Brockman said that the Committee understands that private health insurance can be a complex product that is confusing to many people.

AMA President, Dr Tony Bartone, appeared before the Committee in August, and told it that even doctors were confused by the array of choices and policies on offer.

“It is for that reason that we support the concept of developing Gold, Silver, and Bronze insurance categories,” Dr Bartone told the inquiry.

“Doctors are intelligent people. But I can tell you that we are all bewildered by the many different definitions, the carve-outs and exclusions from some 70,000 policy variations.

“That’s not my figure – it’s the Government’s. It’s unbelievable. No wonder we’re always being caught out.”

The Committee called for a public information campaign to help consumers understand the product design reforms, saying that would allow more consumers to be better informed about the different tiers and their inclusions.

Greens Senators Richard di Natale and Rachel Siewert lodged a dissenting report, arguing that the reforms would have little effect in improving the sustainability of the market.

“What we are instead seeing is an ideological commitment to throw good money after bad,” they said.

“The private health system operates only through the generosity of vast public subsidies of more than $6.5 billion each year. There is no argument that, without these subsidies, the market would collapse.”

Labor Senators Lisa Singh and Murray Watt also raised concerns that the reforms could have unintended consequences, including making it easier for insurers to cancel policies and harder for Australians to afford care when they need it.

“Labor Senators therefore support calls by the Australian Medical Association, Australian Healthcare and Hospitals Association, and others for the measures in this Bill to be reviewed after implementation,” they said.

They endorsed the main report’s recommendation to pass the Bills, ensuring their passage through the Senate.

The Government is expected to move to finalise the legislation in the Spring session.

The Committee report is available at https://www.aph.gov.au/Parliamentary_Business/Committees/Senate/Community_Affairs/PrivateHealthInsur2018.

Exams rigged against female applicants in Japan

One of Japan’s leading medical schools has been automatically reducing the entrance exam scores of female applicants by 20 per cent for at least 12 years to graduate more male doctors, an independent inquiry has found.

The case has been examined in a report in the British Medical Journal (BMJ).

According to the BMJ, Tokyo Medical University’s acting president, Keisuke Miyazawa, admitted to the exam rigging at a press conference on 7 August after the release of a damning report by external lawyers.

“For those people whom we have caused tremendous hardship, especially female candidates whom we have hurt, we will do everything we can,” he said.

Miyazawa said that the school was considering options including financial compensation and retroactive admission of some women who would have passed without the automatic deduction. He said that he had not known of the score manipulation.

Tetsuo Yukioka, the school’s executive regent and chair of its diversity promotion panel, stood beside him.

Both men spent much of the press conference with their heads bowed in an attitude of shame.

“Society is changing rapidly and we need to respond to that, and any organisation that fails to utilise women will grow weak,” Yukioka said. “I guess that thinking had not been absorbed.”

Kenji Nakai, a lawyer who led the inquiry, said that the rigging had been ordered by the former chair of the board of regents, Masahiko Usui, 77, with the approval of the former president, Mamoru Suzuki, 69.

Both men resigned last month amid allegations that they had inflated the exam score of the son of Futoshi Sato, a health ministry official, in return for increased research funding. Usui, Suzuki, and Sato have all since been charged with bribery.

As well as discriminating against women, the school secretly penalised men who had failed the entry test more than twice before. The school had far more applicants than places – only one in 11 men and one in 33 women who tried for a place succeeded in 2018 – so multiple attempts were common.

A computer algorithm automatically deducted 20 per cent from the score of everyone taking the first multiple choice segment of the entrance exam.

Men taking the test for the first or second time were then re-awarded 20 per cent, men taking it for the third time were given back 10 per cent, and men taking it for the fourth time – plus all women – were given back 0 per cent.

The investigators also found 18 instances of applicants’ scores being inflated in return for donations to the school or bribes to its officials. In one case, a student’s mark had been raised by 49 per cent in return for a donation to the school.

Investigators examined records dating back to only 2006 so that they could report their findings earlier, said Nakai.

The principal motive for the discrimination, he said, was the perception that female doctors are more likely to quit the profession young to have children, exacerbating a doctor shortage.

Because medical graduates in Japan typically work in hospitals affiliated to their medical school, this would be a problem for the institution itself, not just for society at large.

‘Profound sexism’ among the school’s leadership also played a role, said Nakai.

The revelations have released a torrent of online criticism, much of it under the hashtag, “It’s okay to be angry about sexism”.

Female doctors in Japan have complained that staying in the profession is almost impossible after having children because childcare services are lacking and because women are expected to perform all household tasks while also working the extremely long hours demanded of male doctors.

The number of Japanese children waiting for kindergarten places this year rose to 55 000. The health ministry, which is also responsible for welfare programs, has announced plans to add 320,000 childcare places by 2021.

Suspicion is now widespread in Japan that exam rigging against women is not limited to one medical school. The education minister, Yoshimasa Hayashi, said yesterday that he plans to examine entrance procedures at schools around the country.

He will also decide what action to take against Tokyo Medical University after studying the report, he said.

 

[Obituary] Patricia Schiller

Sex educator and lawyer. Born on Oct 27, 1913, in Brooklyn, NY, USA, she died in Palm Beach, FL, USA, on June 29, 2018, age 104 years.

Medical student killed in Nicaragua

The killing of a medical student in Nicaragua has been condemned by the World Medical Association (WMA).

Brazilian student, Rayneia Lima, was shot while driving home from her hospital shift in Managua, Nicaragua’s capital city. 

WMA President, Dr Yoshitake Yokokura, said this was a tragic death and illustrated the high risks that doctors in Nicaragua are taking every day in coping with the breakdown of the country’s public health care system.

“We repeat our warning about the rapidly deteriorating situation in the country. Attacks on health workers, medical vehicles, and hospitals are unacceptable.

“The Nicaraguan Government must immediately end this state of affairs.

“The breakdown of law and order has undermined basic health care in the country and is endangering all those medical staff who are striving to deliver health care in the midst of this crisis.

“It is the duty of all of us to do what we can to bring this appalling situation to an end.”

Timing is everything

BY DR CLIVE FRASER

 

In my last column, I gleefully mused about what an enjoyable evening I had watching the understated spectacle of the Royal Wedding on Saturday 19th May 2018.

What I didn’t mention was the unexpected interruption to my Saturday evening at 9.55 PM precisely with an email in my Inbox from AHPRA.

My immediate reaction should have been one of relief that the good souls at AHPRA were burning the midnight oil catching up with the back-log of complaints so that they can all be dealt with in a timely fashion.

But no, the Royal Wedding was still on the ‛telly’ and I thought that history in-the-making just wouldn’t be the same if I paused and watched the Royal Wedding in catch-up mode.

My paranoia then set in. Could this email from AHPRA be about another vexatious complaint?

Had I failed to delete another favourable post on Facebook, I wondered?

I knew, though, that it must have been a very important message to disrupt myself and countless other doctors on a weekend.

Taking a closer look, though, the message had actually been sent by AHPRA on behalf of the Australian Digital Health Agency advising that, “This year, every Australian will get a My Health Record unless they tell us they don’t want one”.

I was aware that the esteemed organisation and publisher of this column, the AMA, was supportive of the MHR, but I still wasn’t sure why I was being told about all of this on a Saturday evening, and during the Royal Wedding.

Then I realised that the opportunity to opt-out of My Health Record ends on 15th October 2018.  Well, the Australian Digital Health Agency better get onto telling us about it, hadn’t they?

And no worries at all that most of my patients have no knowledge at all about their digital data going online, and myself and my colleagues are still unsure about what will be shared.

After hearing that the largest online appointment booking app (HealthEngine) was sharing data with law firms, marketers, and other entities, I can understand the general public’s reservations about who has access to their health data.

Curiously, HealthEngine still has a data-sharing arrangement with the Federal Government’s My Health Record.

And, going forward, who knows who will want access with one major health fund (NIB) already stating, “We desperately need this data!”

Could all of this just be another example of how inevitable digital disruption is in our lives?

Instead of pushbikes, would Uber be delivering midwives to those home-birthing mothers?

Would Google reviews eventually replace my CPD?

But, in a digital world that operates around the clock, I’ve learnt to avoid sending emails, texts, tweets etc after close of business.

I may be awake at 3 AM and have finally found inspiration, but there is no way that I would share my thoughts after midnight lest I find myself compared with a certain US President.

So, as I delved into the fine print associated with My Health Record, I have discovered that I can be registered under a pseudonym.

I noted that DisappointedVoter and AngryTaxpayer were almost certainly taken by now.

But I was sure that DoctorCamShaft would be mine for the taking as I had the forethought to grab this moniker when Hotmail first launched in 1996.

The automotive world also targets consumers by using big data for marketing opportunities.

Setting up a bridal registry, searching on Google for a pram, or posting on social media that someone just passed their driving test all suggest life events which may trigger the purchase of a vehicle.

Trawling through this sort of data is said to be 10 times more effective than a traditional marketing campaign.

In my humble opinion, the Federal Government’s decision to make the My Health Record mandatory unless an individual advises that “they … don’t want one” should be coming with a lot more explanation.

Safe motoring,

Doctor Clive Fraser
doctorclivefraser@hotmail.com

 

Climate change and health

According to experts interviewed by ABC News, Australia is missing out on billions in short-term health savings that could come with tougher greenhouse emission targets.

Tony Capon, Professor of Planetary Health at the University of Sydney, says that air pollution can lead to premature deaths and problems such as heart attacks and asthma.

He and others point to ballpark figures suggesting the energy and transport sectors alone cost Australia at least $6 billion a year in health problems.

“They’re conservative figures and we’re not taking account of this information in our public policy,” Professor Capon said.

“We consider these costs external and we don’t look at the full ledger.”

Experts like Professor Capon argue that a move towards less- polluting forms of energy and transport would deliver much- needed savings to Australia’s budget bottom line.

Research suggests cutting emissions can pay for itself through savings on health costs, not only in China but in developed countries too.

Burning fossil fuels produces CO2, which is bad for the climate, but it also tends to produce air pollutants such as sulphur dioxide, nitrogen dioxide and very fine particles that can play havoc with our respiratory and cardiovascular systems, even in countries with good pollution laws.

While air pollution levels in Australia may be low when compared to countries such as China, there is evidence that even low levels can be damaging to health.