O'Connell, Alice --- "Alternatives to medical negligence litigation" [2015] PrecedentAULA 24; (2015) 127 Precedent 38

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ALTERNATIVES TO MEDICAL NEGLIGENCE LITIGATION

By Alice O’Connell

Clients who have been injured due to deficient medical treatment may have a legal right to compensation. Many injured clients also wish to ensure that a practitioner or organisation is held to account and that changes are implemented to ensure others do not suffer the same fate.

While issuing formal court proceedings is invariably the best way to maximise damages for an injured client, it is not the only avenue to seek redress for substandard care. Some clients wish to avoid the often stressful and protracted path of litigation. For others, despite inadequate treatment, damages may not be available due to legal hurdles such as significant injury thresholds.

Various bodies across Australia can assist individuals with complaints against health practitioners, hospitals and medical services. Their different roles, offering different outcomes, can help to determine where a person’s complaint would best be investigated. It is therefore helpful for legal practitioners to be aware of the regulatory and complaints organisations across Australia so that alternatives to litigation can be explored with clients, where appropriate.

COMPLAINTS AND THE NATIONAL LAW

Australian Health Practitioner Regulation Agency (AHPRA) and the National Boards

In July 2010, legislation came into effect to provide uniform national regulation of 14 health professions.^[1] The Health Practitioner Regulation National Law (the National Law), was passed in each Australian state and territory. It established AHPRA and 14 National Health Practitioner Boards (the National Boards), one for each of the 14 professions subject to regulation.^[2] To create a national scheme, Queensland enacted substantive legislation which has been adopted by other jurisdictions (an applied law scheme). This national scheme has replaced the individual state boards and ensures consistency and communication between the states and territories.

As well as other roles relating to regulation and training, AHPRA manages investigations into the professional conduct, performance or health, of registered health practitioners, in the following disciplines:

• Aboriginal and Torres Strait Islander Practice;

• Chinese Medicine;

• Chiropractic;

• Dental (including Dentists, Dental Therapists, Dental Hygienists, Dental Prosthetists and Oral Health Therapists);

• Medical;

• Medical Radiation Practice;

• Nursing and Midwifery;

• Occupational Therapy;

• Optometry;

• Osteopathy;

• Pharmacy;

• Physiotherapy;

• Podiatry; and

• Psychology.

AHPRA can receive complaints (which are called notifications) about individual health practitioners in the above fields. AHPRA does not assist individuals to seek compensation or with conciliation between a patient and health practitioner. Nor does it consider complaints against hospitals or healthcare services. Further, AHPRA does not receive notifications in NSW and Queensland (see below for the processes in these states).

AHPRA: investigations and decisions

Professional investigators at AHPRA will, where appropriate, investigate notifications and prepare reports including recommendations for the National Boards.^[3] Upon receipt of an investigation report, the appropriate National Board must determine whether to take further action.^[4] To further investigate a notification, the National Boards also have the power to require a practitioner to undergo a health or performance assessment.^[5]

The National Law includes a number of defined standards, which include: ‘unsatisfactory professional performance’, ‘impairment’, ‘unprofessional conduct’ and ‘professional misconduct’.^[6] Notifications indicating that a practitioner’s conduct may be unsatisfactory or impaired are likely to be determined by the relevant National Board. The National Board may or may not decide to convene a panel hearing to make such a determination.

If a National Board or panel is satisfied that a health practitioner’s conduct is inappropriate or not of an adequate standard, it may make a decision with the aim of protecting public safety, such as:

• to caution the practitioner;

• to impose conditions on the practitioner’s registration, such as a requirement to undertake further training or to undertake a period of supervised practice; and

• to suspend the practitioner’s registration.^[7]

Where a notification about a practitioner’s performance or conduct is more serious, and may result in a finding of ‘professional misconduct’, the National Boards are required under the National Law to refer the matter to the appropriate tribunal in that jurisdiction.^[8]

Complaints in Queensland

Complaints in Queensland are now managed by the Queensland Health Ombudsman. Amendments were made to the National Law in Queensland with the establishment of the Health Ombudsman Act 2013 (Qld) and the Health Practitioner Regulation National Law (Queensland).^[9]

Since July 2014, the Health Ombudsman has been responsible for managing serious complaints relating to the health, conduct and performance of health practitioners, and will determine which complaints go to AHPRA and the National Boards after assessing their severity.^[10] The law in Queensland requires the National Boards to refer to the Ombudsman any matters that may result in a finding of professional misconduct or another ground for suspension or cancellation of registration.^[11] In other states, such matters would be referred to a Tribunal.^[12] In Queensland, a practitioner may request that a matter being heard by a panel be referred to a Tribunal.^[13] A panel may also request that the relevant National Board refer a matter to the Tribunal.^[14]

Complaints in NSW

NSW adopted the National Law with amendments. Complaints are received by the Health Care Complaints Commission (HCCC) or one of the Health Councils. Unlike AHPRA, the HCCC can consider complaints against health organisations, as well as individual practitioners. The Health Practitioner Regulation National Law (NSW) established 14 Councils, one for each of the health professions regulated under the National Law.^[15] An initial assessment of a complaint will determine whether the complaint should be discontinued, be referred to the HCCC or be referred to the relevant Council. If the complaint raises concerns for public safety or may lead to disciplinary action, it will be referred to the HCCC for formal investigation. If the complaint raises issues of a less serious nature, the matter will be referred to the Council for non-disciplinary and educative responses such as counselling, performance management or action regarding impairment.

Following investigation by the HCCC, the complaint may either be discontinued at that time, or be referred to one of the following:

• the relevant Council;

• the Director of Proceedings (an employee of the HCCC, appointed by the Commissioner);^[16] or

• the Director of Public Prosecutions (in the case of potentially criminal charges).^[17]

If the complaint is against a health organisation, HCCC can make recommendations to the organisation – for example, in relation to policy change.^[18]

If a matter is referred to the director of proceedings, s/he decides whether the matter should be prosecuted before a committee or tribunal.^[19] Complaints about unsatisfactory conduct will usually be heard by a Professional Standards Committee, while a complaint about professional misconduct will be prosecuted before the NSW Civil and Administrative Tribunal, as required by the National Law.^[20]

Panel decisions

National Boards considering a notification may refer a practitioner to a panel. Panel hearings are not open to the public and decisions are not published. However, AHPRA publishes summaries of panel decisions in circumstances where it determines there are clinical and educational benefits to doing so. Practitioners’ names are not published. The examples below highlight the types of matters that may be subject to a panel hearing, and the outcomes that may be achieved.

Panel decision: lack of informed consent

Informed consent cases are notoriously difficult to litigate in Australia, as a client must demonstrate not only that they were not warned of a material risk, but also that had they been informed of that risk, they would not have proceeded with the recommended treatment. Clients who are advised that their prospects of success for bringing a legal claim are not favourable may consider making a notification to AHPRA.

In November 2015, a panel convened by the Medical Board of Australia in Western Australia found that a plastic surgeon had not obtained appropriate consent for a patient prior to a breast implant procedure. The panel found that immediately prior to the procedure, when the patient was under sedation from her pre-operative medication, the practitioner suggested that she select a different implant size, as the size she had chosen was not available. The panel found that the way the consent had been obtained was inappropriate, because the patient’s judgement and capacity to consent were compromised at the time and because she had a history of changing her mind about size. The panel took into account that the practitioner had since changed their practice in relation to taking and documenting informed consent, and should the same situation arise in the future, they would cancel the procedure.

The panel found that the practitioner’s conduct constituted unsatisfactory professional performance and a decision was made to caution the practitioner.^[21]

Panel decision: inadequate treatment and health records

In November 2013, a panel convened by the Medical Board of Australia in the ACT found that a practitioner had inappropriately vaccinated a 23-month-old patient with Fluvax, in circumstances where the practitioner knew or ought to have known that the use of Fluvax in children under five years of age was contraindicated. The panel found that the practitioner’s performance was below the standard reasonably expected of a health practitioner of an equivalent level of training or experience, and that the practitioner had engaged in unsatisfactory professional performance. The panel reprimanded and cautioned the practitioner about maintaining appropriate histories of consultations, including detailed examinations, actions and reasoning behind decisions. The panel did not impose conditions on the practitioner’s practising certificate, as the lapse of judgement was not found to be part of a pattern of similar behaviour.^[22]

Tribunal decision: inadequate post-operative care

In December 2014, the Victorian Civil and Administrative Tribunal reprimanded Dr Tam Dieu and Dr Melvyn Cass and placed conditions on their registrations, after a finding of unprofessional conduct against both practitioners. The conduct concerned their post-operative management of a patient, who died in January 2007 following complications from liposuction surgery at the Centre of Cosmetic and Plastic Surgery in Caulfield, Victoria. The practitioners both agreed to the Board’s proposed determinations and the Tribunal was satisfied that the practitioners showed remorse for the tragic consequences of the failure to provide adequate post-operative care. The Tribunal ordered that the practitioners be reprimanded and undertake additional training.^[23]

HEALTH COMPLAINTS ENTITIES (HCES)

While AHPRA and the National Boards focus on protecting the public by managing notifications against health practitioners, the HCEs in each Australian state and territory aim to resolve complaints or concerns relating to medical care by any health practitioner or organisation.

The HCEs in each state or territory are:

• ACT – Human Rights Commission

• New South Wales – Health Care Complaints Commission

• Northern Territory – Health and Community Services Complaints Commission (HCSCC)

• Queensland – Health Quality and Complaints Commission (HQCC)

• South Australia – Health and Community Services Complaints Commissioner (HCSCC)

• Tasmania – Health Complaints Commissioner

• Victoria – Office of the Health Services Commissioner

• Western Australia – Office of Health Review

HCEs investigate concerns about health practitioners or organisations and may be able to assist individuals to:

• resolve a concern through conciliation or mediation;

• investigate concerns about fees and costs;

• access medical records; and

• correct health information about themselves.

Making a complaint to an HCE may result in one of the following outcomes:

• an explanation of what happened or more detailed information about the relevant treatment;

• a face-to-face meeting between a health practitioner and patient in which concerns can be discussed;

• an apology;

• a change to systems or procedures so that a similar incident does not happen again;

• provision of remedial treatment; or

• payment of compensation.

CONCLUSION

For aggrieved clients wishing to explore alternatives to medical negligence litigation, Australia offers two main avenues: the regulatory National Law and state-based HCEs. Where a complaint is against an individual health practitioner, and the client’s objective is to hold the practitioner to account with potential disciplinary action, AHPRA is likely to be the most appropriate entity to conduct an investigation. For clients seeking compensation, conciliation or where a complaint is against a health organisation or hospital, the HCE in the relevant state will be best placed to handle the complaint.

Alice O’Connell is a Senior Associate at Adviceline Injury Lawyers (a division of Holding Redlich). Her practice focuses on medical negligence claims. PHONE [phone] EMAIL [e-mail].

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^[1] Health Practitioner Regulation National Law Act 2009 (Qld); Health Practitioner Regulation National Law (NSW); Health Practitioner Regulation National Law (Victoria) Act 2009 (VIC); Health Practitioner Regulation National Law (ACT) Act 2010 (ACT); Health Practitioner Regulation (National Uniform Legislation) Act 2010 (NT); Health Practitioner Regulation National Law (Tasmania) Act 2010 (TAS); Health Practitioner Regulation National Law (South Australia) Act 2010 (SA); Health Practitioner Regulation National Law (WA) Act 2010 (WA), (the National Law).

^[2] National Law, s31.

^[3] Ibid, s166.

^[4] Ibid, s167.

^[5] Ibid, ss169 and 170.

^[6] Ibid, s191.

^[7] Ibid, ss178(2) and 191(3).

^[8] Ibid, s193.

^[9] Therefore, in Queensland there is now the Health Practitioner Regulation National Law Act 2009 (Qld) which sets out the National Law, as well as the Health Practitioner Regulation National Law (Queensland) which sets out the National Law as it applies in Queensland.

^[10] http://www.oho.qld.gov.au.

^[11] Health Practitioner Regulation National Law (Queensland), s193.

^[12] National Law, s193.

^[13] Health Practitioner Regulation National Law (Queensland) s190A.

^[14] Ibid, s193B.

^[15] Health Practitioner Regulation National Law (NSW), s41B.

^[16] Health Care Complaints Act 1993 (NSW), s90A.

^[17] Ibid, s39.

^[18] Ibid, s42.

^[19] Ibid, s90B.

^[20] http://www.hccc.nsw.gov.au.

^[21] http://www.ahpra.gov.au/Publications/Panel-Decisions/Panel-hearing-summary-2013-0179.aspx.

^[22] http://www.ahpra.gov.au/Publications/Panel-Decisions/Panel-hearing-summary-2013-0177.aspx.

^[23] Medical Board of Australia v Dieu (Review and Regulation) (Corrected) [2014] VCAT 1597.