OPEN LETTER to the Hon Greg Hunt

Petition updateReform AHPRA & Medical Board to stop bullying culture from harming our caring doctorsOPEN LETTER to the Hon Greg Hunt

Australian Health Reform Association

Mar 18, 2020

While we are all embattling the Covid-19 pandemic, another doctor received a punitive interim order from the Medical Board for not doing forceps delivery!

This kind of systemic injustice compels AHReform to write an open letter to the Health Minister and others to address this grave issue.

It affects not only medical practitioners but all health professionals and their patients. The National Law that allows this injustice to perpetuate must be reviewed and amended to allow qualified health practitioners do what they are good at without the fear of this kind of punitive action.

"Personal vendettas should not be endorsed by the regulators nor the health authorities as they are not in the interests of the public" said Dr Tony Pun, President of AHReform.

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Excerpts of the Open Letter from the President of AHReform:

We are the Australian Health Reform Association Inc (AHReform), an independent not-for-profit organisation which has an interest in advocating for good healthcare regulation and governance. We wish to raise an important issue concerning Dr XYZ in the name of natural justice and in the interest of public confidence and their health and safety.

Case of Interest

Dr XYZ is an obstetrician and gynaecologist with impeccable specialist qualifications (MBBS, FRANZCOG). Over the last 15 years, he has delivered babies in many major maternity hospitals including [redacted]. He has an exemplary birth outcome record with no baby died or suffered from permanent injury under his labour management, and having only a low 10% emergency caesarean section rate (as per the WHO’s recommendation) rather than the high 30-50% among his contemporaries.

RANZCOG is the peak professional college for all obstetricians practising in Australia and New Zealand, and Dr XYZ having attained his fellowship of RANZCOG is a highly qualified obstetrician and gynaecologist.

Recently, we found that Dr XYZ had encountered gross injustice from the Medical Board and AHPRA which are the national regulatory bodies for all registered medical practitioners in Australia.

The regulatory bodies acted, on the primary basis, following an anonymous complaint that Dr XYZ did not follow RANZCOG standards in two deliveries where vacuum suction was used. In November 2019, the Medical Board has considered Dr XYZ’s evidence and decided to investigate the matter further.

However, in March 2020, following the advice of an interstate obstetrician who asserted that forceps delivery is safer than vacuum suction, the Medical Board decided to impose an interim order on Dr XYZ’s practice while awaiting the outcome of their full investigation.

The interim order places conditions that Dr XYZ, being a senior obstetrician himself, cannot perform any vaginal birth without the physical presence of another obstetrician, even in an emergency situation.

This type of condition placed on Dr XYZ is equivalent of a de facto suspension of Dr XYZ’s right to practise obstetrics because it would be impracticable, infeasible or untenable for a senior doctor like Dr XYZ to manage his private patients and be supervised by another obstetrician who could be his junior or peer or senior who is hardly available to do their own case, let alone minding other cases.

Moreover, this condition also takes away patients’ rights to have Dr XYZ as their sole private obstetrician in charge of their health and well-being when they choose to have a vaginal birth.

In other words, the immediate action taken by the regulatory bodies would amount to a significant but unwarranted punitive action against Dr XYZ who could not provide the level of care his patients would need, not mentioning the disruption it could cause running his private practice.

To protect his patients’ rights to private pregnancy care under him, Dr XYZ has no alternative but to take legal action against the regulatory bodies and challenge their decisions in the Medical Tribunal and if necessary, in a higher jurisdiction.

Based on the strong evidence at hand, Dr XYZ is confident that the allegations put forward would be deemed false and misleading, and the Medical Board’s belief that forceps delivery is safer than vacuum suction would have no scientific ground to support it. Moreover, the two patients implicated in the complaint were very satisfied with Dr XYZ’s care, had a good recovery, and did not suffer from any permanent birth-related injury or postnatal stress.

It would not be appropriate to discuss the full details of the case in this letter as it could be considered “sub-judice” by some quarters. However, it is sufficient to say that the accused has mounted a strong defence against the allegations.

Why we believe the Regulatory action amounts to Gross Injustice?

There are numerous examples described in the professional literature [1] where regulatory bodies will take action against a health practitioner based on “contentious claims” and “reasonable belief” and citing “in the interest of the patient/public”, even though the evidence used is grossly lacking in substance and not in accordance with current professional standards as demonstrated in this case by the RANZCOG position statement and current scientific papers [2, 3].

The Australian Medical Association (AMA), the Australian Senate, the ABC Report and SBS Insight have all raised their deep concern about the regulator’s handling and the negative impacts it caused to the health profession and their patients [4, 5, 6]

Essentially, we have three main legal concerns.

Firstly, the regulatory body’s interim order is lacking natural justice to the accused. Such procedural order is meant for serious criminal charges. It is highly inappropriate to apply the criminal standard in a non-criminal jurisdiction. The unintended consequence of such action is that the accused is being punished as guilty until proven innocent. This heavy-handed approach contradicts our liberal democracy values which uphold the axiom of “Innocent until proven guilty”.

Secondly, we are very concerned that the accused is not being judged by strong valid evidence based on the true account of the event but on a ‘reasonable belief’ created by the anonymous notifier and an opinion from one obstetrician, whom the regulatory bodies relied upon as the reasons to make this interim order.

Thirdly, the cases implicated in this complaint stems back to 2015, and the regulatory body did not feel the need to impose an immediate action after hearing Dr XYZ’s account in November 2019. Then in March 2020, relying on only one expert opinion, the regulatory body decided to raise the matter and imposed immediate action despite being provided further report from two other experts who disagreed with the opinion of the first expert.

There is every belief that Dr XYZ has a very good case to overturn the final decision or when the final investigation is complete to overturn the findings but why should Dr XYZ (or any innocent practitioner) have to be subjected to an interim punitive condition which can last many years until it is complete?

We therefore believe that this immediate action represents a gross injustice by disrupting Dr XYZ’s practice even before the investigation was complete and natural justice afforded to Dr XYZ.

Why we believe this matter is of public interest?

The use of ‘reasonable belief’ by the regulators under the current National Law will have wide-ranging ramifications to our health professionals because any allegation (whether it is true or false) can now be used under the pretext of ‘reasonable belief’ and ‘protection of public safety’ to act upon any registered health professional with impunity.

Whilst this may seem to be an individual doctor problem with the regulatory body, we are very concerned because this is a systemic issue which affects the health care delivered to the public and it allows the regulatory body to persecute any health practitioner without the usual rules of evidence but relying on a reasonable belief which is a very low threshold to satisfy themselves on imposing conditions in the interests of the public. They have been inappropriately used on numerous occasions and this is just another case affecting an innocent practitioner.

Where there are professional disagreements on how to manage a patient (e.g. whether forceps or vacuum suction should be used to deliver a baby), and the professional standard may be unclear or dependent on the practitioner’s judgement or the clinical circumstances, then it is very inappropriate for the regulatory body to use such powers which appear to be a personal vendetta.

Personal vendettas should not be endorsed by the regulators nor the health authorities as they are not in the interests of the public. There should be open communication and discussion of various alternatives.

AHReform was privy to the redacted materials and would appeal to the Regulatory bodies to do the following without further delay:

Disregard the false and unsubstantiated evidence received by AHPRA and the Medical Board from the anonymous source;
Review the weighting of the expert report from two highly qualified obstetric professionals in the field compared to only one expert; and
Take into consideration of the evidence provided by Dr XYZ’s defence team, including from the patients’ input, RANZCOG position and scientific evidence.

In the interest of justice, public health, safety and efficacy, we believe the Regulatory body should consider withdrawing the case against Dr XYZ as a public service and as a gesture of goodwill in restoring public confidence that the health industry is working for the people of Australia together as a team comprising the Regulators, Practitioners and the Consumers.

On behalf of the AHReform Board,

Dr Anthony Pun OAM, PhD. President of AHReform

References:

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