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Community Affairs References Committee
22/11/2016
Medical complaints process in Australia

THOMAS, Ms Lee, Federal Secretary, Australian Nursing and Midwifery Federation

[18:32]

CHAIR: Welcome and thank you very much for bearing with us and extending your time with us.

Ms Thomas : My complete pleasure. As I just said to Mr Fletcher, my evidence will be nowhere near as fascinating as his.

CHAIR: You never know. We can find fascination in amazing places. It is true!

Ms Thomas : It is getting late.

CHAIR: I happen to know that you will have been given information on parliamentary privilege and the protection of witnesses and evidence many times.

Ms Thomas : Many times, thank you, Senator.

CHAIR: We have your submission. Thank you very much. I invite you to make an opening statement. You know the ropes: we will then ask you some questions.

Ms Thomas : Thanks very much. Firstly, I would like to thank you for the opportunity. I apologise for not being able to make it following your last invitation but it is great to be here tonight. The submission is brief. We came to this process late because we do not consider that medical complaints encompass nurses and midwives in the first instance. So we just went: 'Yep; okay; thanks very much.' But then there was some discussion with us—I do not know by who—that there might be some benefit in us at least writing to you with some of our issues. That is why our submission is brief but, I think, goes to the points. I am happy to take your questions.

CHAIR: Senator Duniam, would you like to kick off? You look like you want to find some fascination

Senator DUNIAM: Yes, absolutely. I am always keen for fascination in the last sitting weeks of the year. On page 3 of your submission—and thank you very much for that and for appearing—you make reference to 'dealing with the underlying issues, which are usually organisational, rather than individual' with regard to bullying. Can you just explain that a little bit more.

Ms Thomas : Certainly. We deal with bullying on an individual member basis, sadly, more frequently than we would like, and often what we find is that there are a range of systemic issues that actually seem to promote or foster bullying in the workplace. These include things like understaffing or not enough staff available, excessive—

Senator DUNIAM: A decision by managers to reduce staff?

Ms Thomas : Yes, or even because of funding arrangements. For whatever reason, there is understaffing, poor performance management and people are unfortunately allowed to continue to work when perhaps they should not be.

Senator DUNIAM: By whom? By their superiors?

Ms Thomas : Yes, by their superiors or even by their peers. So there are those systemic issues that we often see. That is not exclusively the case, but they certainly are some of the issues that we see.

Senator DUNIAM: That is a very broad set of problems to deal with. I do not think we will be able to deal with them all here. They are far too broad for this particular inquiry. I assume many of your members or some of your members have engaged with the authority through the complaints process.

Ms Thomas : Sorry, the authority?

Senator DUNIAM: AHPRA. In terms of your members' experiences with AHPRA and any general feedback, I suppose I might have a couple more specific questions following that.

Ms Thomas : Our members' experience in terms of the complaints process specifically?

Senator DUNIAM: Yes, their satisfaction with it, on either the making end or the receiving end, and if they are the subject of a complaint as well.

Ms Thomas : I think that whilst we do not have any evidence in our submission about those who have had a compliant made against them, it would be fair to say, anecdotally, that nobody is happy about having had a complaint made about them. Suffice to say that some are vexatious. Really, from our members' perspective and from the union's perspective, the issue for us is the length of time it takes to investigate and to come to a conclusion about the state of play, if you like. We have in our submission that nine to 12 months is typically what we experience. The fact of that matter is that that is kind of a broad average. Some take less time, but it is not unusual. That long, very delayed process has very significant psychological and other effects on our members.

Senator DUNIAM: You talk about the length of time, and I note in your submission you talked about the resourcing of AHPRA. In terms of the conduct of the investigations, the process and the dealings with AHPRA by your members, is there much feedback on that or is it more around the timing?

Ms Thomas : Certainly, it is around the timing most specifically, but we do experience and our members do say to us that there are often some communication issues and there are certainly consistency issues. We have outlined some of those issues in our submission—certainly, the consistency issues we experienced. A nurse may experience an outcome in one state, and virtually the same issue in a different state will have a different outcome. That is incredibly frustrating from our perspective and from their perspective. It means that we cannot give legitimate advocacy and advice based on precedent, if you like. That is probably too legalistic, but I think you get what I am saying. We kind of give our members a bit of an overview about, 'Look, this is generally what will happen in this kind of scenario.' Where those inconsistencies arise it makes it very difficult for everybody.

Senator DUNIAM: Consistency and timing.

Ms Thomas : Yes, those are the two big issues. Also, lack of transparency on decisions made for imposing conditions on practice. If you look on page 4, at the top there are four dot points. They are our significant issues in relation to the process.

Senator DUNIAM: So when you say 'transparency', you mean how the decision was reached?

Ms Thomas : Yes.

Senator DUNIAM: That is consistent with what I have heard in this inquiry so far. That is it from me, Chair.

Senator XENOPHON: I just wanted to go to your submission. You say:

The Australian Health Practitioner Regulation Agency (AHPRA) are unlikely to be able to deal with reporting of bullying in a useful manner, particularly in dealing with the underlying issues which are usually organisational, rather than individual.

Could you expand on that? You are saying that systemic bullying cannot be dealt with AHPRA, but individual cases might be.

Ms Thomas : We go on then to say, of course, that there are a range of other state and territory authorities that would be best placed to deal with bullying, such as the occupational health and safety regulator WorkSafe Victoria and its equivalent in other states and territories. In the past we have had to use, or ask for assistance from, the WorkSafe corporation to manage issues of bullying in a workplace that are systemically driven, and certainly we would see that they are much better placed than AHPRA to deal with these issues. AHPRA are a professional regulatory body. They regulate health practitioners for the protection of the public. That is their mandate. I am not going to recite to you the national law, because frankly I cannot, but our belief is that with bullying, whatever the cause, there are other facilities and authorities that are best placed to deal with it.

Senator XENOPHON: I understand you are saying there are bodies such as WorkSafe in Victoria to deal with it. How do you see AHPRA's role in the context of your profession and your members?

Ms Thomas : AHPRA regulate nurses and midwives for the protection of the public. They provide professional standards, decision-making frameworks, guidance et cetera for the profession in order that we can be registered to practice. They also provide a complaints mechanism such as we are talking about today, notwithstanding the fact that it does not include bullying. They provide registration to nurses and midwives on an annual basis. We see them as our regulatory body.

Senator XENOPHON: Sure. Can I just go back a step—and this is not a criticism; I am just trying to understand this—to where you say AHPRA 'are unlikely to be able to deal with reporting of bullying in a useful manner, particularly in dealing with the underlying issues which are usually organisational, rather than individual'. If there are organisational issues, do you see a role for your organisation to go to AHPRA and say, 'There seems to be a culture of bad behaviour, of bullying.' We saw what the Royal Australasian College of Surgeons, to their credit, did in terms of dealing with what seemed to be systemic issues. You do not see that as AHPRA's role?

Ms Thomas : No. We have not, to this point, ever engaged with AHPRA about those systemic or other issues in relation to bullying. In fact, we would go so far as to say it disappoints us that in many cases there are employers that have completely abrogated their own responsibilities in relation to discipline, and other matters, of nurses and midwives and they have abrogated that responsibility to AHPRA. We say that, at the first instance, all of these issues should be dealt with internally. There is obviously a place for AHPRA, but let's try to deal with these things, at the first instance, in the workplace. We have never gone to AHPRA. In my knowledge and experience, none of our branches have used AHPRA as the mechanism for dealing with bullying.

Senator XENOPHON: Just to finish up on this: let's say one of your members is being bullied by a medical practitioner, for whatever reason. That is the allegation. Do you then go to the hospital—

Ms Thomas : Yes.

Senator XENOPHON: or, if they are not an employee of the hospital, do you go to the professional association or the medical board? What do you do then?

Ms Thomas : If they were a member of ours, the nurse would come to us and we would assist them to go to their employer, whoever their employer might be, to try to resolve it in the workplace—using, in some cases, very good internal policy to deal with bullying and, in some cases, very lacklustre policy. I am prepared to admit that some places do it better than others.

Senator WHISH-WILSON: I was going to ask a similar question. Some of the broad evidence we received in Sydney around the culture within hospitals—from a surgeon's point of view, including from students, from the time they start—was quite disturbing. I asked a student, 'What do you think it is that makes the culture like this?' And she said a hierarchical structure and the culture of elitism with doctors. Do you find it is different for nursing and midwifery? Is there a similar culture there of bullying and intimidation?

Ms Thomas : We do, unfortunately, see what is probably an unacceptably high level of bullying in nursing and midwifery. In our submission there are some stats, which I will not take you to—they are a bit old—from 2012. I do not think it is exclusively as a result of a hierarchical structure. I think there are other issues that bring it to the fore. I have talked about some systemic ones, and then there are the one-on-one issues.

Senator WHISH-WILSON: It is interesting: I used to be in the Army, and it reminded me a lot of the military, where it is hierarchical and there are high-pressure, life-and-death situations. It just occurred to me: you are dealing with life-and-death and very important issues, and that must bring to bear its own pressures.

Ms Thomas : It does. Nursing and midwifery are very good, professional careers, but you are dealing with people's lives. People do die and it is very stressful at times, and you put on top of that the issues around not enough staff, not enough resources and going short on a shift—all of these things mount up.

Senator WHISH-WILSON: One of the consistent things that was raised by submitters who had problems with the current AHPRA system was a solution. One thing the committee heard evidence on—and you mentioned it before—was having some kind of mediation process prior to it going to investigation. You said that around bullying—you tend to deal with that internally. Would you agree, more broadly, that a system of having an intermediate—I understand there are issues with people wanting to maintain confidentiality for their own fears of bullying and intimidation if someone is doing the wrong thing and they are letting people know that. Do you believe that an intermediary process would be a way of avoiding vexatious and frivolous claims?

Ms Thomas : Yes. If I am to understand your question: after notification is made to AHPRA, before the assessment or the investigation is done, there is a mediation between the parties?

Senator WHISH-WILSON: Correct. And perhaps that is part of the assessment: where parties have to sit down and seek mediation.

Ms Thomas : I think I would need to think through whether there would be any benefit in that.

Senator WHISH-WILSON: It tends to happen in other areas of law. Small claims and all these kind of things tend to go to mediation before they go—

Ms Thomas : Without equivocating, I think it is fair to say that we are prepared to work with AHPRA and whoever it is, frankly, for our members' benefit. If there was a view that changing the current notification structure and complaints handling process was necessary, then we would be very happy to sit down and work through the pros and cons of a system that included something like that.

Senator WHISH-WILSON: Do you have any reflections on the previous system—the Medical Board system versus AHPRA?

Ms Thomas : We like national registration, if that is what you are asking me.

Senator WHISH-WILSON: Right.

Ms Thomas : We are a big supporter of national registration—always have been; always will be. It is fair to say—and we are pretty clear in our submission—that there have been problems since 2010 when it started. AHPRA and our board have worked tirelessly with us—because, frankly, we are nag bags when we do not like something.

CHAIR: I had not noticed that!

Ms Thomas : Thank you, Senator Siewert. And they are responsive in the main. We will continue to work with AHPRA and our board to ensure that our members—and nurses and midwives nationally—get the best service that they possibly can for the hundreds of thousands of dollars that we put into the scheme every year; 333,000 nurses paying $150 a year is a lot of money, so we want a service that is commensurate with that.

CHAIR: I presume from that there is ongoing discussion about the issues that you still hold concerns about?

Ms Thomas : Yes.

CHAIR: There is ongoing work—

Ms Thomas : All of the time.

CHAIR: How is that?

Ms Thomas : It is good. I personally meet regularly with Mr Fletcher. There is a professions reference group, where all of the professions are represented. We meet a couple of times a year to flesh out some of the issues. Mr Fletcher is good enough to provide us with proactive information around things that are about to happen. We try to work very cooperatively. Where things are going wrong, it is a letter or a phone call to get stuff happening really quickly in order that, whether it is registration time or things have fouled up a bit—we had huge problems with graduates a few years ago and there was very inconsistent information. Ring up; write a letter; get it fixed. Get it sorted; move on. So it is constant.

CHAIR: Those are some of the issues that are not necessarily day to day, but which do come up. There are other issues that you have listed here and which we have had discussions about—the four issues on page 4 that we touched on earlier. They seem to me to be long ongoing issues.

Ms Thomas : They are probably the ones that are slightly more ongoing than perhaps some of the day-to-day stuff. There is a lot of emotion in this, no doubt about it, so it is about getting it just right so that everybody feels like they have been treated fairly. This expansive amount of time between initial notification that you have had a complaint made against you and the outcome is something that we really want to pare down. We really want to work on these inconsistencies that we see between states and territories, and we will continue to do that. Some of that is out of AHPRA's hands and with the board. You have to make the distinctions.

CHAIR: I take your point.

Senator WHISH-WILSON: I just want to clarify something about that time frame: have you heard of many cases where someone has had an investigation conducted into them, so they have had a complaint made against them, and they have provided information and have then been asked to provide new information and that continues? The goalposts keep moving.

Ms Thomas : I have not personally. It may well be that our branches have. What I will say is that if that is the case, if there is evidence of that, then that would be incredibly frustrating.

Senator WHISH-WILSON: We have heard evidence of that from doctors.

Ms Thomas : That would be incredibly frustrating. It sounds like a bit of a fishing expedition, frankly. That is just my opinion.

CHAIR: Thank you very much for your evidence today. We have very much appreciated both your submission and your evidence.

Committee adjourned at 18 : 53