Your regular legal update to keep you up-to-date with medicolegal issues in the practice of obstetrics and gynaecology

The anatomy of a vexatious complaint

‘Vexatious’ denotes a legal action or the bringer of an action that is brought without sufficient grounds for winning, purely to cause harassment or annoyance to the defendant.

The Community Affairs Reference Committee reviewed vexatious complaints to AHPRA and National Boards in the Australian medical complaints process in November 2016 and found:

• Allegations that the complaints procedure was being used as a tool for bullying and harassment.
• AHRPA functioning is likely to be jeopardised by the handling of vexatious complaints.
• Concerns that there was no avenue for AHPRA to counsel complainants on false or misleading allegations and that there were no consequences for individuals who made vexatious complaints (there are avenues for consequences, but they are never employed). They suggested that it would be beneficial if a record of vexatious complainants was kept and suggested that legal action should be taken against people found to have submitted them.
• Practitioners who receive a vexatious complaint not only have to invest time and money in defending their actions, they correspondingly experience the personal burden of shame, humiliation and psychological stress.
• Criticism of AHPRA’s process in vexatious complaints included: prolonged assessment times, poor transparency and communication, no admission of conflict of interest by complainants and a reliance on unqualified investigators with insufficient expert medical input.

Let us explore these criticisms from a recent submission to AHPRA regarding one of our Fellows. We will let you be the judge of the accusation of a vexatious complaint.

The complaint

A consultant O&G (the ‘defendant’) committed a serious departure from standard medical practice by attempting to procure an illegal termination of pregnancy (TOP) on a 12-year-old girl (‘Q’). He demonstrated a failure to understand the law as it applies to minors and pregnancy termination.

The defendant’s record of events

Following a phone request from a GP in the setting of repeated pleas from Q and her mother for a TOP, the defendant:

1. Contacted his hospital administrator director of medical services (DMS) for advice.
2. Familiarised himself with the Queensland Health’s published guideline on therapeutic termination of pregnancy, and managed the patient’s request according to them.
3. Awaited ‘facility approval’ permission from the replacement DMS.
4. Meanwhile, he phoned the GP and sought a written referral letter to the hospital and asked the patient and her mother to present to the outpatients clinic.
5. Discussed the case with a second O&G consultant who concurred with and supported the medical care plan.
6. Discussed the case with the hospital social worker who knew the patient and her family well. The social worker’s professional opinion supported the medical care plan in favour of TOP.
7. Discussed the case with the theatre manager to confirm theatre availability in the event that curettage was required.
8. Liaised with the Child Protection Liaison Officer who also concurred with the medical care plan.
9. Completed the mandatory reporting paperwork.
10. Spoke with the pharmacist and had misoprostol ordered in, to ensure the necessary medication was in stock at the required time. The defendant obtained the authority number from the PBS enabling him to prescribe the controlled drug.
11. Contacted the relieving DMS who was unwilling to make a decision about facility approval, and was directed to liaise with the area DMS.
12. Held a one-and-a-half-hour case conference with the patient, her mother and the social worker. The patient was assessed for Gillick competence and alternative management options were discussed and documented. Arrangements for further review were made.
13. On the third attempt to contact the DMS, the defendant was advised that consent could only be provided by a Court since the patient was a 12-year-old girl. This advice was and is contrary to the Guideline.
14. Undertook to immediately write a detailed letter to the area DMS to fully acquaint him with the details of the case and of the advice contained within the Guideline. He asked the DMS to reconsider the need for a Court order.
15. Sought independent expert opinion regarding application of the Guideline from both the authors of the Health Department Guideline, and senior O&Gs in the area of adolescent gynaecology. They all supported the defendant’s understanding of the Guideline and the medical care plan.
16. Saw the patient and her mother again to explain the delay and provide support.
17. Attended an urgent hospital multidisciplinary meeting to discuss the case where all participants agreed that Q was competent to give consent and that the matter should be dealt with urgently. The area DMS rejected this advice and announced an intention to seek a Supreme Court order. The defendant’s locum contract expired on this day.
18. A week later the patient and her mother were still waiting to hear details about the Supreme Court application and expressed increasing anxiety and distress at the continued uncertainty and delays. When the defendant became aware of this he wrote to the Minister for Health seeking an urgent resolution of the matter as an advocate for Q and her family. The Supreme Court approved the TOP and it was performed without complication on the last day of the gestational period in which medical termination is regarded as safe.
19. Six weeks later the defendant received a notification from AHPRA that a complaint had been made about his management of the patient.

The informants

The complaint was made by a senior health bureaucrat, relying on the advice of the area DMS. Neither of these administrators had ever met the patient nor her family.

The substance of the written complaint was that a 12-year-old could not consent to a TOP without Court approval. The issue of contention was that the defendant (in preparing the pharmacy availability and authority approval for the medication) was viewed as intending to procure an illegal abortion by the informants. Sinister motives were attributed to the defendant. The pharmacy staff at the time were warned by the area DMS against granting the defendant access to the medication.

The submission by the area DMS was a telephone conversation recorded nine months after the events in question. AHPRA reports his opinion was that he was following the Queensland Health Guideline by insisting on a Court order for the approval of the TOP. He claimed that the defendant did not follow ‘due diligence’ in his management of the patient. He attributed some of the delay in the medical care management on a decision by the family to go on holiday. (The patient’s absence is documented as having been discussed with her clinicians and approved because of the administrative delay, with contact numbers made available for urgent retrieval if approval was obtained for the procedure.) Furthermore, the area DMS believed that the family was not stressed throughout the process, despite having never met with them.

The AHPRA process

Timelines/transparency/communications

The defendant was under investigation for 10 months. During this time he was required to alert all possible employers to the fact that his professional practice was under investigation by AHPRA, with the result that applications for locum work were denied, something that had never happened before in eight years working as a locum. He was forced to seek work outside Australia during this time. This entailed significant additional registration and other costs, and significantly reduced income.

AHPRA states its aim is to complete each investigation in six months, but it notes that complex investigations may take longer. AHPRA allowed six months to receive communication from the single complainant with any knowledge of the case, and when a written report was unavailable, AHPRA accepted a telephone conversation in lieu with regard to the most serious allegations against the health practitioner. The defendant was mandated to submit a written report with strict timelines.

Potential conflict of interest by complainants

Given that vexatious complaints have been identified as an issue of concern, is there an expectation for AHRPA to satisfy itself that a complaint is of good faith? That is, should a declaration of potential conflict of interest be a requirement for a complaint?

In this case, the defendant requested that AHPRA consider the possibility that the complaint constituted elements of vexatiousness. There were potential conflicts of interest between the informant and the defendant, the contentious subject of abortion and the possibility of an administrator’s chagrin at having a complaint about him made to the Minister.

Investigation/medical care assertions

AHPRA noted in this case, ‘the practitioners involved in the care of the patient held different views regarding the patient’s capacity to consent’. In fact, all clinicians involved in her direct care were in agreement; the medical administrator acting from another hospital 100km away was the only practitioner who held a different view. The role of the clinician is not appreciated.

AHPRA’s aim is to ensure patient and public safety. AHPRA’s comments regarding the care of this patient include, ‘the information indicates the delay did not adversely affect the medical treatment that was subsequently administered to the patient’ and attributes a difference in ‘belief’ (between the defendant and the complainant) as to the level of perceived distress to the patient and her family. The family was never consulted by the complainant, including the three weeks of uncertainty where the patient was denied treatment. It is well established that there is a greater risk of medical complications from TOP with increased gestation.

Conclusion

In the end, AHPRA determined to take no further action against the defendant ‘as the issues identified for investigation were unsubstantiated’. While Queensland is awaiting a legal solution to clarify their laws regarding TOP, young women and girls will continue to request the procedure. Procedural complexities notwithstanding, prolonged complaint resolution processes and vexatious complaints remain challenges to public and patient safety.

Abandoning the principle of imposed chaperone conditions

Following the ‘Independent review of the use of chaperones to protect patients in Australia’ February 2017, Australia will become the first country in the world to introduce tough new measures to protect patients from healthcare practitioners accused of sexual misconduct.

The challenge of an allegation of sexual misconduct to a healthcare regulator has been to balance the interests of patient protection and those of wrongly accused practitioners to continue to work during the investigation. The traditional solution has usually been to impose ‘chaperone conditions’ on the practitioner as an interim patient-protection measure.

This review, commissioned by the Medical Board of Australia and AHPRA, followed the allegations of multiple indecent assaults by a Victorian neurologist who continued to molest patients with imposed chaperone conditions on his registration.

The current position

Chaperone conditions were imposed on 48 health practitioners in January 2017, including 39 doctors. Only one was female (a nurse).

Data on the 39 doctors reveal that:

• 20 were GPs
• None were O&Gs
• All were in private practice

60 per cent of the chaperone conditions were imposed as an act of immediate restriction during the investigation of alleged sexual misconduct.

The remaining 40 per cent were imposed following proven sexual misconduct. The Report notes that, ‘This is contrary to the Litchfield decision of the NSW Court of Appeal (Health Care Complaints Commission v Litchfield (1997) 41 NSWLR 630 at 639F) that a doctor who cannot be trusted to see patients without the presence of a chaperone is not fit to practise medicine at all’.

Chaperone conditions were in place where a practitioner was facing similar complaints from multiple patients or had a past history of sexual misconduct.

The average length of time for an ‘interim chaperone condition’ was 1.8 years. The delays in investigation by a health regulator were often compounded by criminal investigation.

Key findings

Chaperones are of limited effectiveness in protecting patients. Imposed chaperones were often employees of the practitioner they were required to observe and report on. As a disturbing example, take the case of the neurologist mentioned above. He had his staff chaperoning behind a curtain while he continued to offend.

The most significant flaw in the current system was reported as a lack of informed consent. Patients often did not know why a chaperone was required.Restriction or suspension was deemed more appropriate where the practitioner was the subject of an allegation of sexual misconduct in the following circumstances:

• More than one allegation of sexual misconduct
• Past history of allegations of sexual misconduct
• Indecent assault, sexual assault, rape or other criminal offending is alleged
• The police have laid charges
• History of non-compliance with chaperone conditions or other restrictions on practice

Recommendations

Use of imposed chaperones to be abandoned in favour of bans for allegations of sexual misconduct. Immediate action conditions include use of gender-based prohibitions, prohibitions on patient contact and suspensions.

Improved handling of investigations with highly specialised staff and prioritisation of sexual misconduct allegations.

Only exceptional circumstances should permit an imposed chaperone. These include where allegations are not of a criminal nature and involve only one patient. Additionally, the practitioner needs to have no relevant notification or complaint history. The mandated ‘practice monitor’ (the new term for imposed chaperone) needs to be a registered health practitioner with a clean record and without bias.

Comprehensive information given to patients, including written informed consent, at the time of appointment booking that their doctor requires a chaperone due to allegations of misconduct.

Conclusion

‘Sexual advances or sexual assault by a health practitioner is a harm that society will not tolerate.’ This statement underpins the Recommendations (all adopted by the Medical Board of Australia and AHPRA) that are a shift from imposed chaperones to suspensions and bans on doctors who are subject to allegations of sexual misconduct.

RANZCOG Guidelines for gynaecological examinations may need to reflect these changes, which require that ‘a chaperone is available to attend any patient undergoing physical examination when requested, irrespective of the gender of the doctor.’

First testing of chaperone recommendation

A Queensland tribunal rejected AHPRA’s chaperone recommendations almost immediately upon their release in April 2017 (Colagrande v Health Ombudsman [2017] QCAT 107). Queensland Civil and Administrative Tribunal decided to allow a cosmetic surgeon with a criminal conviction for sexual assault of a patient (where the practitioner was sentenced to nine month inprisonment, wholly suspended for 18 months) to continue to work with a practice monitor. The tribunal set conditions on the doctor’s employment by insisting that he inform all female patients in advance of his need for a practice monitor, including on his website. The high bar set in the AHPRA recommendations for a doctor to be the practice monitor was dismissed by the Tribunal in favour of an agency nurse.