Vexatious complaints and the Code of Conduct

Date published

12/08/2021

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This article was co-authored by Jimmy Zhang, Paralegal.

Over the past decade, there has been an increasingly common belief that Australia’s health complaints system is inadequate to deal with vexatious complaints. Vexatious complaints/notifications to Ahpra can be made by anyone including patients, members of the public and other practitioners.

Indeed, the improper use of the complaints process and vexatious complaints has been an ongoing issue for health practitioners. This culminated in a Senate inquiry in November 2016 into the ‘Medical complaints process in Australia’.[1]

After consultations with stakeholders following the inquiry, including the AMA, the Medical Board updated its Good Medical Practice: A code of conduct for doctors in Australia (the Code)[2] in October 2020, to include a section on vexatious complaints.

Prior to the amendments to the Code, often vexatious complaints were not fully understood or investigated by the regulator (even if raised by a practitioner), leaving health practitioners dismayed, involved in lengthy and protracted Ahpra investigations and with no real consequences for the individual who had made the vexations complaint. A report prepared by the Centre for Health and Policy entitled ‘Reducing, identifying and managing vexatious complaints’ prepared for Ahpra in November 2017 found that, “The misuse of complaints processes to lodge manifestly groundless complaints with harmful intent is a form of abuse which regulators must be equipped to address”.[3]

With the introduction of the vexatious complaints section in the Code, it ought to provide health practitioners with some encouragement that vexatious complaints (if proven) will be taken seriously and, importantly, act as a deterrent for persons who make complaints to Ahpra without reasonable grounds and with the primary intent of causing harm to that practitioner.

What are vexatious complaints?

In legal contexts, ‘vexatious’ means, “To harass or annoy, cause delay or detriment, or achieve another wrongful purpose”.[4] As such, the test for vexatiousness concerns the motivation of the complainant and whether the complaint has been made in good faith. For a complaint to be considered vexatious, it must be made without reasonable grounds and with the primary intent of causing harm to the subject.[5] However, the National Law does not include a definition of a vexatious notification.

In the Ahpra context, a vexatious complaint is a notification without substance and with the intent to cause distress, detriment or harassment to a practitioner.

For example, an individual who makes a complaint to Ahpra about a health practitioner with the intent of causing that person harm, distress, reputational or financial damage and without any genuine concern about that health practitioner (from a patient safety or protection of the public point of view), then that complaint is arguably a vexatious complaint.

The notification system

Anyone can make a complaint (a notification) about a registered health practitioner’s health, performance or conduct. Ahpra and the relevant National Board have joint responsibility to manage these notifications.[6] Under the National Law, there are mandatory reporting responsibilities if there is a reasonable belief that a health practitioner has engaged in notifiable conduct, which includes practising while intoxicated, sexual misconduct, and significantly departing from accepted professional standards.[7]

The notification process is shown in the figure below.[8] At any stage of the notification process, interim or final action can be taken.

A vexatious complaint is theoretically identified at the ‘acceptance’ stage, where the notification is reviewed to confirm the matter is grounds for a notification and that it relates to a registered health practitioner.[9] Regarding the handling of vexatious complaints, section 151 of the National Law allows National Boards to take no further action on any notification if it reasonably believes it to be vexatious or frivolous.[10]

However, the difficulty lies in first identifying when a complaint is vexatious. As noted in the joint submission from the Medical Board, Nursing and Midwifery Board and Ahpra to the Senate inquiry:

‘determining that a notification is vexatious can be difficult …For example, a complaint may relate to performance and risks to public safety but there may be elements of self-interest from a notifier in relation to their professional or commercial interests.’[11]

Further, section 237 of the National Law provides protection for people who make a notification in good faith.

Safeguards exist against making vexatious complaints, such as a National Board being required to undertake a show-cause process, and health practitioners being able to appeal regulatory action to a tribunal or court.[12]

Notwithstanding, the Community Affairs References Committee was of the view, “The complaints process can be used as a tool of bullying and harassment within Australia’s medical profession”.[13] What was particularly disconcerting was that it found there were no consequences for individuals who make vexatious complaints.[14] Numerous other concerns were raised in regard to handling vexatious complaints, including:

  • the long timelines for investigations to be completed, ranging from two to four years[15]
  • the investigative process lacked transparency and scrutiny [16]
  • the investigators were not necessarily medically trained or qualified and so may not understand the medical situation.[17]

The Code and vexatious complaints

Under the Code, the Medical Board may now take regulatory action against a doctor if a notification about another health practitioner is found to be vexatious.[18] This addresses the governance gap recognised in the Senate inquiry, where a lack of consequences for making a vexatious complaint provided the permissive environment for doctors to abuse the complaints system.

Although the Code does not provide a definition of a ‘vexatious complaint’, it does outline how one might be identified. Vexatious complaints:

  • lack substance
  • are often characterised by an intention to protect commercial interests and/or cause harm to another health practitioner
  • can be contrasted to legitimate complaints, which ‘are motivated by genuine concerns about patient safety.’[19]

The Code then stipulates that good medical practice involves:

  • raising genuine concerns about risks to patient safety to the appropriate authority (locally and/or the Medical Board) and complying with mandatory reporting requirements
  • not making vexatious complaints about other health practitioners.[20]

In December 2020, Ahpra also released a ‘Framework for identifying and dealing with vexatious notifications’ (the Framework). The Framework identifies the significant negative impacts on a practitioner who is the subject of a vexatious complaint. It also provides some guidance for staff when conducting an assessment of a notification to consider notifier characteristics that might be indicators of a need to consider vexatiousness such as:

  • whether a notifier has a historical pattern of making notifications about the same practitioner, same practice, or the same issues about multiple practitioners
  • whether a notifier has engaged in organised, strategic or calculated behaviour that appears to want to catch a person (or practitioner) out
  • personal gain such as a sense of satisfaction from causing distress to the subject, or exercising power, control or revenge over them (eg. family law dispute)
  • where there are assertions made by a notifier that appear irrational
  • professional competitiveness and gain (career advancement of a practitioner, business competition or disputes)
  • notifications lodged during legal proceedings or relationship breakdown between the notifier and the practitioner, or two entities involving the notifier and the practitioner
  • strong criticism of a practitioner’s healthcare or approach to treatment on issues where there is valid disagreement and acceptance of different opinions amongst the broader profession.

Ahpra CEO Martin Fletcher said that the Framework, “Will help us clearly and confidently identify when a complaint is vexatious” and, “It will ensure we address any risks to patient safety in an appropriate way and in a manner that doesn’t discourage people with genuine concerns coming forward”.

The implications

The consequences for a health practitioner of being the subject of a vexatious complaint/notification are serious. It can have detrimental professional consequences as well as cause significant stress, anxiety and harm to that practitioner and their family; particularly when the practitioner is involved in a protracted Ahpra investigation.

There is still much to be done. It is unclear to what extent regulatory action will be taken where it is proven that a vexatious complaint has been made, or how quickly a vexatious notification can be dealt with to minimise the risk of harm to a practitioner who is the subject of such a complaint.

Notwithstanding, with the updated Code, those who make vexatious complaints now may have regulatory action taken against them by the Medical Board. This is a significant step towards deterring people from bullying or harassing medical practitioners via a complaint to the regulator, whilst still protecting the integrity of the complaints process.

Importantly, it provides a framework for Ahpra and regulatory decision makers to identify, manage and respond to vexatious complaints at the early stages of a notification.

If a member is of the view that a vexatious complaint has been made against them to the regulator, they are encouraged to seek the support and guidance of their MDO and also the AMA Victoria Workplace Relations team.

 

This article was originally published in AMA Victoria's blog, Stethoscope

 

[1] Community Affairs References Committee, Medical Complaints Process in Australia (Report, 30 November 2016) (‘Senate report’).

[2] Medical Board of Australia, Good Medical Practice: A Code of Conduct for Doctors in Australia (Code of Conduct, October 2020) (‘Code of conduct’).

[3] Melbourne School of Population and Global Health, Centre for Health Policy, Reducing, identifying and managing vexatious complaints, p.21.

[4] Vexatious Proceedings Act 2014 (Vic) s 3.

[5] See Law Reform Committee, Inquiry into Vexatious Litigants (Report, December 2008) 5.

[6] Senate report (n 2) 13.

[7] Ibid 16-17.

[8] Ibid 14.

[9] Ibid 14.

[10] See for example Health Practitioner Regulation National Law (Queensland) Act 2009 (Qld) s 151.

[11] Senate report (n 2) 20.

[12] Ibid 20-21.

[13] Ibid 22.

[14] Ibid.

[15] Ibid 24.

[16] Ibid 26.

[17] Ibid 30.

[18] Code of conduct (n 3) 10.4.

[19] Ibid.

[20] Ibid 10.4.1, 10.4.2.