Medical Practice Amendment Bill 2008
Objectives:
The objectives of the Medical Practice Amendment Bill are to amend the Medical Practice Act 1992 and the Health Care Complaints Act 1993. The purpose of the Bill is intended to improve public protection within the health system by providing the NSW Health Care Complaints Commission and the NSW Medical Board with improved powers to deal quickly and effectively with complaints about medical practitioners.
The Bill also is intended to improve the transparency and accountability of investigative and disciplinary processes and places mandatory reporting requirements on the medical profession to report medical practitioners colleagues whose conduct may be harming or abusing patients.
Comments:
The main provisions of the Bill arise out of an independent review chaired by the former Federal Court judge Deirdre O’Connor in 2006 after the criminal conviction of a general practitioner Ms Suman Sood for unlawfully administering a drug to a woman with intent to procure miscarriage, and of, unlawfully causing a woman to take a drug with intent to procure miscarriage. I have spoken about Dr Sood previously in this House and I will not do so again.
Likewise, the Bill has been strengthened following the revelations about the so-called Butcher of Bega, Dr Graeme reeves. Others have gone into great details as to the allegations concerning Dr Reeves, which I do not intend to comment on except to say that the shockwaves of ther case have severely undermined public confidence in the State’s medical system, and that confidence will not be easily restored. Both of these practitioners were able to keep practising for a considerable period of time before their matters came before the Medical Tribunal despite a series of complaints and concerns raised against them.
The additions to Medical Practice Amendment Bill 2008 recommended by the O’Connor review include proposals to:
Introduce a guillotine provision that allows the identification of serious conditions which, if breached, would warrant immediate suspension or deregistration;
Require the urgent section 66 reviews – those that consider the suspension of a medical practitioner – to include non-medical representatives;
Require Professional Standards Committees – those that judge if standards have been compromised – to include a legal representative to chair proceedings;
Overturn and reverse the current presumption that Professional Standards Committee hearings are confidential and their findings should not be published; and
Require the registration authorities to consider complaints in re-registration application and proceedings, including those complaints received after deregistration has occurred.
The community wants more reassurance that if a doctor breaches a serious condition that is attached to their registration then they face being immediately suspended or deregistered. Improving the transparency of decision-making means greater public knowledge of outcomes and a better understanding of how those outcomes are reached.
I will now turn to the changes to the Medical Practice Act which focuses on five key areas.
First, Increasing Public Protection
The NSW Medical Board’s powers by virtue of Section 66 of the Medical Practice Act 1992 are to be amended in five ways. Firstly, Item 8 in Schedule 1 to the Bill clarifies that action taken under Section 66 must be guided by protection of the public interest. The Board is no longer required to limit itself to the least restrictive option but instead should look to the outcome that best addresses the statutory purpose of the protection of the public or is in the public interest.
Under section 66 of the Medical Practice Act 1992 the board must, if at any time it is satisfied that such action is necessary for the purpose of protecting the life or physical or mental health of any person, either suspend a medical practitioner or impose conditions upon the medical practitioner’s registration.
In such circumstances, the board is to convene an inquiry as soon as is practicable. These inquiries are akin to injunctive action, where the board acts rapidly and with minimum formality to suspend or place conditions on a practitioner whom it considers poses a threat to the health or safety of any person. This is done in anticipation of an early investigation and finalisation of the matter in a more structured setting. The Bill includes the insertion of a provision expressly requiring the Medical Board to consider any previous complaints in re-registration proceedings, even those which received after deregistration.
Procedural provisions dealing with emergency suspension processes under Section 66 of the Act are to be strengthened in a range of ways including:
Providing the Board with powers to require production of documents or other information for the purpose of a Section 66 Inquiry, and enabling the Board to provide any information obtained under these powers to the Health Care Complaints Commission;
Providing the Board with a power to remove or alter conditions, or to terminate an order of suspension;
Providing the Board with power to notify any person the Board considers appropriate of action taken under Section 66 inquiry;
Restrict the right of practitioners to apply to the Supreme Court for review of a ‘section 66’ decision until after the practitioner has exhausted a new right of appeal to the Chairperson or Deputy Chairperson of the Medical Tribunal; and
Requiring medical practitioners to provide the Medical Board (where requested) with information about where the medical practitioner works, so the Board can notify those facilities about any orders/conditions imposed on the practitioner.
Second, Mandatory Reporting
The Bill introduces for the first time in Australia mandatory obligations on doctors to report serious misconduct by fellow doctors.
The key features of the system include that practitioners will be required to report colleagues to the NSW Medical Board where they have a reasonable belief that serious misconduct has occurred.
Mandatory reporting will apply to three key areas of serious misconduct: sexual abuse in the practice of medicine, is intoxicated by drugs or alcohol at work while practising medicine, or has flagrantly departed from accepted standards of professional practice or competence, and therefore, risking harm to another person.
A few years ago a well-known, high-profile, Macquarie Street doctor asked me to give him a character reference before the Medical Tribunal, as he had been reported for allegations of sexual abuse in the practice of medicine. He said he had departed from the accepted standard of professional practice but his excuse was that he was fairly drunk at the time. When I told him that I would recommend to the tribunal that he should be suspended immediately and deregistered, he decided to ask someone else to give him a character reference.
The State’s medical profession have welcomed the changes. Dr Andrew Keegan, President of the NSW branch of the Australian Medical Association, supported the move to greater scrutiny in the April edition of Australian Doctor Magazine. Dr Keegan said:
“It has become apparent that checks on those practising medicine in NSW were not up to scratch in the past few years. The community must be able to rely on the processes that are supposed to bring inappropriate practice to the attention of the authorities, and ensure it is acted on and better still prevented.”
The federal President of the Australian Medical Association, Dr Rosanna Capolingua, told the SBS Insight program on 15 April that the case of Dr Reeves and others had highlighted the need for protective legislation. Dr Capolingua said:
“I think that the cases we have been talking about contribute towards the need for this sort of protective legislation to evolve so that doctors can make clear complaints about their colleagues if they are concerned without feeling they are jeopardising themselves in the process, and I think that’s something that probably could be replicated across Australia.”
Reporting will be restricted to actions taken while practising medicine. Therefore, doctors will not be expected to report on colleagues’ conduct outside of medical practice. Failure to report will be a contravention of the Act. This in turn may be unsatisfactory professional misconduct, as in serious cases may even be considered professional misconduct, making the practitioner liable to being struck off the register.
For many years, I worked on an ethics committee for clergy. It was a most important part of the conduct and ethical standards for clergy. People were required to report misconduct. Those who reported were not be jeopardised in their own career, and those who were reported dealt with swiftly and sternly because they had let down the whole profession by their misconduct.
Third, Increased Transparency and Accountability of the Disciplinary Process
The Reeves case has led to an ongoing public perception that the medical profession places the protection of its own regulation ahead of the welfare of the patients. A code of conduct that set a professional and ethical obligation for medical professionals to report was introduced in July 2005, but the public perception of a ‘closed shop’ culture and of a profession that protects its own remains in place.
To overcome the public perception, the Government is proposing to:
Require the urgent section 66 reviews to include non-medical representatives,
Require Professional Standards Committees to include a legal representative to chair proceedings, and
Overturn the present presumption that Professional Standards Committee hearings are confidential and their findings are not to be published.
Finally, Managing Multiple Complaints
There are significant changes to the powers of disciplinary bodies to have regard to multiple complaints and previous findings or judgements about practitioners including:
Requiring the Medical Board to have regard to other matters involving practitioners (including any other complaint, or a previous finding or judgement by a disciplinary tribunal) in the exercise of the Board’s complaint and public protection functions;
Providing that where complaints are being prosecuted concurrently before the Medical Tribunal or a professional standards committee, the Tribunal or committee may have regard to all the evidence before it in making factual findings, finding that a practitioner is guilty of unsatisfactory professional conduct or professional misconduct, or imposing a sanction; and
Enables the Medical Tribunal or a professional standards committee (PSC) to rely on previous judgements or findings of a PSC or tribunal for the purpose of making a finding that a practitioner is guilty of unsatisfactory professional conduct or professional misconduct, where the previous conduct that is sufficiently similar to the conduct alleged against the practitioner in the proceedings.
Amendments to the Health Care Complaints Act
A number of amendments have also been proposed to the Health Care Complaints Act 1993. The changes include amending the object section to provide that the protection of the health and safety of the public is the paramount consideration in respect of all functions under the Act.
The legislation also requires, through assessment, investigation or prosecution, the Health Care Complaints Commission to action matters that have been subject to emergency procedures as soon as is practicable.
It requires the Commission to have regard to other complaints against a practitioner, or to any previous finding or judgement by a disciplinary tribunal or committee, when making an assessment and to consider undertaking concurrent investigation of all relevant complaints about the same practitioner. This is a most logical and sensible step.
Finally, it requires the HCCC Commission Director of Proceedings to consider concurrent prosecution of multiple complaints against the same practitioner.
However, this Bill does not go far enough in implementing policy designed to ensure that no one in the State’s health system has to experience the trauma and shame that the victims encountered. The victims of Dr Reeves demand answers and justice. All these women deserve answers from the Minister for Health, and a clear explanation as to how he remained in the system without scrutiny.
However, the bill does not go far enough in implementing policy designed to ensure that no-one in the State’s health system has to experience the trauma and shame that victims encountered from the practices of Dr Sood and Dr Reeves. These victims demand justice and deserve answers, and a clear explanation from the Minister for Health as to how those doctors remained in the system without scrutiny. The bill must go an extra step by containing provisions that make it mandatory for employers to undertake background checks of medical practitioners before they are appointed.
In a previous occupation I was responsible for employing a large number of doctors, particularly psychiatrists, in private hospitals and as chair of the board of a significant public hospital. It is interesting to reflect upon this issue because when employing doctors in private hospitals I initiated major checks on them and personally rang their previous place of employment to gain detailed information about their private practice.
As to my responsibilities in the public hospital system, New South Wales Health had advisory recommendations only and discouraged me from making background checks on doctors who were already employed by New South Wales Health. The Government should ensure that referee checks are conducted on doctors by senior health executives before a credentials committee, medical appointments advisory committee or other appointments function of a health service approves their appointment.
Conclusion:
In conclusion, this Bill addresses two key issues: patient protection, and the accountability of the statutory disciplinary system. It is hoped that the patient protection role of our regulatory system will be reinforced and enhanced by a system of mandatory reporting that focuses on serious misconduct, and provides protection for those who make such reports.
Strengthening the emergency powers of the medical board to allow consideration of multiple and similar complaints will also give the regulatory authorities a greater range of options when faced with poor practice or continued poor and standard practice by doctors. The changes ensure a far greater level of accountability and transparency by opening up the professional standards committees to external scrutiny, and by ensuring a greater role for non-medical practitioners.
However, I encourage the Minister to include mandatory background checks prior to any future appointments in order protect the public, act on pre-employment checks in order to ensure rogue doctors can fly under the radar, and that the medical profession will no longer operate under a shroud of secrecy protected by self-regulation and confidentiality clauses. The protection of the public is the paramount consideration when it comes to medical regulatory and disciplinary functions.
I welcome the Medical Practice Amendment Bill and I commend it to the House.
