Your regular legal update to keep you informed on current medicolegal issues in the practice of obstetrics and gynaecology.

AHPRA publication of unfounded patient complaints

The Australian Health Practitioner Regulation Agency (AHPRA) recently commenced publicly linking disciplinary and court decisions to medical practitioner registration details, even in cases where no adverse findings were made. This followed the 2016 recommendation of the ‘independent review of the use of chaperones to protect patients’, that quotes the Chair of the Medical Board of Australia, Dr Joanna Flynn: ‘… the public has a right to know if there are conditions on a doctor’s registration or if there have been serious disciplinary or criminal offences proven against a doctor.’

The Medical Board noted that where a claim was unfounded, the link would be published with ‘no adverse finding’ recorded. The principle of transparency and ‘information’ about health practitioners was thought to strengthen the informed decision-making of patients seeking medical care. However, concerns were raised by the Australian Medical Association (AMA) and medical defence groups that the stance was unfair and punitive to doctors. The smear of the allegation could outweigh the exoneration, with a serious loss of reputation. It involved no small number of health practitioners. Of the 3557 notifications to the Medical Board in 2016–2017, 76.3 per cent resulted in no further action being taken. Those complaints resulting in ‘no adverse finding’ were to remain linked for the entire career of the doctor.

Dr Steel Scott, a doctor in Geelong, Victoria, created a petition through change.org, with more than 17,000 signatures, in an effort to stop AHPRA linking unfounded complaints on its register. The webpage was widely shared, with emotional comments from doctors who had been vindicated in disciplinary hearings, saying that the ‘no adverse finding’ link would increase the rate of post-traumatic stress disorder and destroy their reputational capital. Further concerns related to what constitutes ‘information’ for the public, in line with principles of patient protection and ‘knowledge’, to help patients choose their doctor wisely.

On 28 July 2018, the Medical Board and AHPRA released a media statement announcing a radical reversal of their decision regarding the publication of non-adverse finding tribunal results. Steel Scott proclaimed, ‘Doctors are people and patients as well. We expect the same level of due diligence in policy-making, rather than … a knee-jerk decision, without adequately consulting with the relevant stakeholders.’

Are you committing human rights violations on the labour ward?

Last year, Marlène Schiappa, French minister for gender equality, reported that up to 75 per cent of French women were undergoing episiotomies, often without their consent. The remarks drew strong rebuke from the French Union of Gynaecologists and Obstetricians, who called for her resignation, as they believed the quoted figures to be inaccurate and alarmist.

The Minister’s comments, however, were not made in isolation. In 2014, the World Health Organization labeled ‘disrespectful and abusive care’ in pregnancy and labour, such as physical and verbal abuse, denial of analgesic medication or procedures, and forced or unconsented medical procedures, as human rights violations. Subsequently, several organisations have formed, most notably across Europe, to bring attention to birthing rights and call out episodes of ‘obstetric violence’.

The term ‘obstetric violence’ was coined in Venezula in 2010 and is defined as ‘… the appropriation of the body and reproductive processes of women by health personnel, which is expressed as dehumanised treatment, an abuse of medication, and to convert the natural processes into pathological ones, bringing with it loss of autonomy and the ability to decide freely about their bodies and sexuality, negatively impacting the quality of life of women.’¹

Among other nations, Argentina, Venezuela and Mexico have now introduced formal legislation to enforce women’s rights during birth. This brings us to the case of LC, who is taking Spain to the European Court of Human Rights for violation of her ‘physical and moral integrity’. LC alleges that she had a forced caesarean section, following on from a ‘cascade of unnecessary medical interventions’. These interventions ranged from amniotomy and use of oxytocin infusion, to the placement of an intravenous cannula ‘just in case’.²

It is alleged that there is no justification documented in the partogram for the above interventions and, moreover, consent was not documented for each procedure or management decision. Furthermore, LC states that, as a consequence of a pre-existing hiatus hernia, labouring in the lithotomy position exacerbated her gastrointestinal reflux, causing stinging of the throat. It is alleged that instructions given by the anaesthetic supervisor to the trainee were overheard by the patient, which added to her distress. After repeated failed attempts by the trainee, the supervisor then placed the epidural successfully. LC states that a caesarean section was then performed without her consent at 8cm dilatation. LC now suffers ongoing pain, anxiety and insomnia and seeks damages.

Claims of institutional gender-based violence cases are increasing in number and prominence globally. Our readership should be aware of this phenomenon.

Is there a right of all doctors to universal indemnity cover?

A recent Australian Department of Health publication (benignly titled), ‘First Principles Review of the Medical Indemnity Insurance Fund’, radically recommends scrapping the capped fee for the 120 doctors covered by this arrangement. Who are these 120 doctors who receive such emphasis in the report? These doctors have a long history of complaints and under the current rules, introduced in the aftermath of the indemnity crisis, an insurer of last resort was beholden to offer medical insurance cover to all doctors, including those at the highest risk.

Removing the surcharge cap will potentially make the premium unaffordable for these doctors, abolishing their legal right to practise in the private sector. Their ability to work as a health practitioner will be restricted to the public health industry, where they will need to competitively obtain a position allowing them to obtain employer-indemnified insurance. Potentially, this may have the ‘patient protection’ advantage by forcing high-risk doctors to practise in workplaces with better governance and oversight.

There are few recommendations for privately practising midwives, except a consideration as to ‘whether there is an ongoing need to cap premiums paid by privately practising midwives and to subsidise the cost of high claims’. No concrete advice is given regarding the indemnity exemption for intrapartum care by privately practising midwives for homebirths.

1. Forced cesarean in Spain now taken to the European court of human rights. Perez D’Gregorio R. Obstetric violence: a new legal term introduced in Venezuela. International Journal of Gynaecology and Obstetrics 2010;111(3):201-202. doi:10.1016/j.ijgo.2010.09.002.
2. https://www.law.ox.ac.uk/research-and-subject-groups/international-womens-day/blog/2017/03/reflections-obstetric-violence-and.