Government rejects compensation plan for vexatious complaints


By Tessa Hoffman

4 Sep 2018

The federal government has rejected suggestions for a compensation and recourse scheme for doctors who are victims of vexatious complaints to AHPRA.

In May 2017, a Senate inquiry tasked with investigating AHPRA’s complaints mechanism recommended the regulator and national boards develop a framework for identifying and dealing with vexatious complaints. These are defined as groundless complaints made with the primary intent to cause distress, detriment or harassment, and are estimated to comprise up to 1% of complaints against Australian health practitioners.

The Senate inquiry also suggested the Council of Australian Governments (COAG) Health Council consider whether recourse and compensation processes should be made available to those subjected to vexatious “claims”.

Its report said many doctors were “deeply concerned about the prevalence of vexatious notifications” being used to bully and intimidate, leading to stress, reputation damage and even job loss. Despite this, deficiencies in the regulatory system meant vexatious claims may not be identified and rejected fast enough, and in such cases “health practitioners are required to expend considerable time, effort and money” defending against them.

But its response to the report the government rejected the idea that Health Ministers consider compensation and recourse processes, saying this could discourage people from making legitimate complaints. It also noted that no funding source for compensation payments to doctors was proposed.

“Where a notification is clearly vexatious, the National Board has the ability under the National Law to take no further action following initial assessment,” the report said.

Bill Madden, special counsel with Carol and O’Dea Lawyers, said he agreed with government’s stance, and doctors should not be left out of pocket if the National Board opted for no further action after determining a complaint was vexatious.

“If legal costs are incurred by a doctor (whether for civil claims or for complaints) then, under the compulsory insurance scheme that exists, those costs would usually be paid by the insurer in any event,” he said.

Medical indemnity provider Avant’s head of advocacy Georgie Haysom said the issue of vexatious complaints had been a welcome addition to latest draft of the Code of Conduct for doctors, with the document highlighting that AHPRA has the capacity to take regulatory action against a practitioner who makes a vexatious complaint against another practitioner.

“Complaints can have devastating impact on the practitioners involved, their professional reputation, their practice and their families. In our experience, if a complaint is made by a peer or a colleague, the shame and humiliation associated with the complaint is magnified.  This is also the case if the practitioner considers the complaint to be vexatious, whether it has been made by a colleague or a patient.”

However a major barrier to tackling vexatious complaints is the difficulty in identifying them, given the need to prove the complainant’s intent and the complaint’s veracity, a 2017 literature review prepared for AHPRA concluded.

The report also found a disconnect between the volume of rhetorical claims about vexatious complaints and the dearth of evidence to support them, with estimates that they represented fewer than 1% of all complaints to Australian health regulators.

“From a policy perspective, the available evidence suggests that under-reporting of concerns about health practitioners is a larger and more impactful issue than vexatious complaints,”  wrote the authors. They concluded that genuine vexatious complaints took a toll on practitioners – and complaints staff – and their prevention must take a central place in complaints-handling.

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