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Community Affairs References Committee
Medical complaints process in Australia

FETTKE, Dr Gary, Private capacity

FRATZIA, Dr James Demetrios, Private capacity

MANSFIELD, Dr Michael, Private capacity

STOKES, Prof. John, Private capacity


Evidence from Dr Mansfield and Prof. Stokes was taken via teleconference

CHAIR: Welcome. Starting with the witnesses on the phone, do you have any comments to make on the capacity in which you appear?

Dr Mansfield: I am an orthopaedic surgeon practising in Cairns.

Prof. Stokes: I am an associate professor at James Cook University. I have a private medical practice in intensive care and anaesthesia. I am currently practising and working at the university.

Dr Fettke: I am an orthopaedic surgeon from Launceston.

Dr Fratzia: I am an emergency physician and an intensive care specialist.

CHAIR: You have all said that you have been given information on parliamentary privilege and the protection of witnesses in evidence. We have your submissions, thank you very much. I would like to invite each of you to make an opening statement. Please keep these fairly brief because the senators have a lot of questions. Who would like to go first?

Dr Mansfield: I have to be away—to operate—fairly soon, so I will, if I could. I am grateful to be able to make this submission on a really important issue. Bullying and harassment, in my experience, is widespread in the medical profession. I think increased competitive attitudes aided by advertising has fostered this competitive spirit over the collegiate spirit that was more prevalent in my younger days. This has been neither beneficial to the public or the profession.

We have seen our professional colleges as impotent, with respect to any meaningful action, despite the window-dressing. For example, the Australia Orthopaedic Association immediately releases any complaints to the recipient of that complaint, which is a significant deterrent. The main problem, however, is that AHPRA—via its allowed misuse of mandatory reporting guidelines—is facilitating bulling on a level never before seen. This is because the investigators lack any medical expertise. They do not have the necessary perspective to judge serious versus vexatious claims, nor do they have the expertise to judge the merit of differing independent medical reports.

They do not follow their own published guidelines on mandatory reporting, which suggests reporting is necessary for repeated serious breaches of acceptable practice not for one-off minor breaches of no harm to the patient. Their philosophy being punitive rather than educational or rehabilitative has the wrong focus, and they viciously attack reported professionals before establishing the seriousness of the reporting and the veracity of that report. They do not use face-to-face meetings or mediation to establish the seriousness of the complaint. Facilitated face-to-face meetings of accused and accuser would be very beneficial, with regard to reducing the complexity and cost of unnecessary investigations, and it would facilitate a speedy resolution of breach issues.

AHPRA seems to have lost its mantra of protecting patients and seems to focus on harassing professionals. They use the same experts, repeatedly, and do not let these experts report as to whether they are necessarily expert and current in the area they are reporting on. For example, they may not be in the same subspecialty as the accused, making their reports pretty valueless.

AHPRA's selected expert reporters tend to be aggressive and vindictive. I have to say that I have a feeling there is a corrupt element going on, here, and that there is a certain group of unrecognised and unnamed medical professionals who are 'on the inside', shall I say.

The other problem is they do not take effective action against proven vexatious reporting. Everyone is aware of the case of my colleague, a neurosurgeon investigated for numerous claims and eventually forced out of practice, forced out of the country. He very nearly took his life. After he left the country, AHPRA concluded that he was not guilty of any misconduct and offered a weak apology for any distress they may have caused.

All these orchestrated fraudulent reports, which were proven vexatious, were never investigated and no action was taken against the perpetrator of these horrendous crimes. The North Queensland public lost the wonderful services of a world-leading spinal surgeon. Unfortunately, this story has been repeated endlessly across the country. I believe only a royal commission will get to the truth, as did the royal commission into child sexual abuse, which exposed the systemic corruption we are now aware of.

I think AHPRA would very much benefit by being proactive, establishing meaningful peer review and audits and educating and upskilling those identified as in need, instead of undertaking ad hoc punitive action as at present. Whilst we are not specific specifically dealing with it, WorkCover Queensland has a similar ethos and is causing great distress to patients and treating doctors as well.

CHAIR: Dr Stokes, do you want to go next?

Prof. Stokes: That would be fine. Thank you for inviting me to speak. You have my submission, as you said. Many practitioners are dissatisfied with the mechanism. That is because of the significant unintended consequences of vexatious reporting, which causes practitioner illness. It also causes severe financial hardship and, in a number of cases that we know about, has caused the suicide of very good doctors.

I think AHPRA is slow to reform and address the real problems caused by this. I say this from a perspective of having been involved with medical students, registrars in training and professional specialists. As recently as two weeks ago, a senior surgeon approached me and told me about the bullying his intern son had repeatedly been subjected to during a surgical term and how it was only his repeated intervention at senior levels that eventually brought the cessation of the bullying. But that action—the bullying the intern's son endured and the father's intervention—will lead to that intern never returning to that tertiary institution. Neither the surgeon father nor the intern son feel that official complaints to the college involved will be able to correct that outcome. It is done and dusted.

In part, I would also like to address the final thing, the requirement for people to sign forms. I have read all the submissions that have been made that can be read. I think it would be important to overcome the objection to signing by putting a statement into the salient code of conduct for medical practitioners, in both section 4 and section 8 of those documents. Section 4 concerns working with other health professionals and section 8 is on professional behaviour. So a simple statement in there that it is part of professional behaviour not to make vexatious complaints would make it unnecessary for a mandatory notification. The guidelines from AHPRA are extremely loose. You could drive a truck through them. Such a statement would stop that.

It is very important to take into account that, even if there are only two people in Australia, according to the report that was in the Medical Journal of Australia, who are affected badly by vexatious reporting, that is not a reason to ignore it. In medicine, we treat the person with the rarest disease and we put a lot of effort into making sure that happens. It is no good for AHPRA just to say it is a small problem. It is a small problem because there are a large number of complaints. For each individual involved with a vexatious report, it is a great deal of suffering. I think it is important, if medical practitioners are to make a complaint about another doctor, they should have satisfied the code of conduct. It is not in our code of conduct at all, and it should be.

There is an absence of natural justice, an absence of due process, and there is evidence of bias. The colleges are the people that AHPRA turns to, and they are the same people over and over and over again. There is such a thing as sham peer review, and none of that is identified by AHPRA or refused as unacceptable.

In the review of AHPRA itself which was published in the Medical Journal of Australia in 2014, I think, the final statement is that it is really early days and there is a lot to do to improve the process. An academic review of AHPRA has said:

This study is best understood as a first step in establishing an evidence base for understanding the operations and merits of Australia's mandatory reporting regime.

Those are their words, and nothing has happened since then. There is a hidden curriculum in medical student and postgraduate training, and there is a hidden communication system, and what is written on paper does not happen in practice, as evidenced by the fact that an intern in the region I work in has been bullied. It has been allowed to happen and nothing gets done about it because people are scared to respond and they know that the colleges will not take it seriously, and neither will the people in administration. I have references for everything I have said. I am happy to share those. I think there are about 10 things that need to be done. I will not go through them all. There is a great need for this to be corrected. Thank you.

CHAIR: Thank you very much. Dr Fettke.

Dr Fettke: Good morning, senators. I am not here for myself; I am here for many. I used to be a funny guy, but I have lost my sense of humour. That has resulted following systemic bullying and harassment from the public hospital system and a prolonged and vexatious process through AHPRA that I believe has been manipulated by those with vested interests. I have not been involved in a single case of patient harm and have helped thousands of people, yet I remain under suffocating AHPRA investigations. This has gone on for nearly 2½ years. My opinion is under question, not my surgery, yet the system wants to silence me for promoting prevention and public health.

My written submission details fabricated evidence by AHPRA investigators, threats from Medical Board members and a litany of evidence supplied by those with agendas. It would be farcical if it were not so damaging. Not only have I and my family been victims of this combined assault, but the AHPRA process is nigh on impossible to challenge without significant personal resilience and fortitude. Trying to gain information through freedom of information is blocked because it is likely to affect the operations of AHPRA.

I have been an orthopaedic surgeon for over 23 years. I look after most of the diabetic foot complications in northern Tasmania. My patients are lying around in hospital with obesity related conditions, amputated limbs and non-healing, rotting flesh and are receiving what I believe is nutritional advice that has put them there in the first place. I have dared to challenge the paradigm of nutritional advice given to my patients and the wider community. My crime has been that of quality assurance and advocating preventive medicine for my patients. My recommendations on cutting sugar and processed food intake are those of the World Health Organization and the CSIRO. I have studied the science and biochemistry of our dietary guidelines and found them wanting in substance and riddled with vested interest politics. Raising these issues publicly has resulted in the parties with those vested interests attempting to silence me. The AHPRA process is being utilised in a recurring pattern, to me, to assist those parties. That has involved members of the Dietitians Association of Australia and, unfortunately, members of the Medical Board.

I have also been bullied and harassed in the public hospital system over some years. When I tried to raise the bullying and harassment issue I found that the perpetrators, amongst several, were the very ones that I was reporting to. This involved the most senior administration of the Launceston General Hospital. Dr Peter Renshaw, as the director of medical services, was one of those. Over some months he posted a sustained defamatory campaign on at least one social media hate page. His introduction of me to that hate site has resulted in ongoing cyberbullying to me and my wife, staff and friends. All of us have felt threatened, and that cyberbullying remains today. I tried reporting this behaviour to all levels of the Tasmanian health system, through to ministerial level, with no resolution. AHPRA dismissed a notification regarding Dr Renshaw regarding this, hearing it interstate, against normal protocol. I have questioned AHPRA on this and had no satisfactory response. Every avenue that I tried for three years was thwarted. I have felt abandoned by the system and I do not see that my public hospital workplace is a safe or supportive environment.

My AHPRA experience began in 2014 with an anonymous notification by a hospital dietitian. This was in regard to encouraging people to reduce their sugar intake. My latest 2016 notification—again an anonymous dietician—included a complaint of me inappropriately reversing a patient's type II diabetes. I was unaware that AHPRA was investigating doctors for making patients better. I was also in that same notification reported for what I might say at a forthcoming hospital food conference. AHPRA investigators requested a copy of the speech before it was actually given. I am concerned that AHPRA has decided to become involved in the censorship of free speech. Along the way in my investigation, the evidence submitted has been from members of the Dietitians Association of Australia, those with allegiances to that association and from the medical administration of the Launceston General Hospital. There has been no patient complaint. I have been targeted and I detail this in my submission.

AHPRA has a flawed investigation process that creates falsified evidence. I am deeply concerned that the investigators are inadequately trained, supervised and audited. I have found their efforts to be embellished at best and fabricated at worst. By example, there was an apparent conversation in 2015 between an AHPRA investigator and a patient of mine. This ended up being falsified not only in content but the patient and his family have no recollection of this conversation actually occurring. I presented this to AHPRA and the patient has supplied me with a written statement of support.

The Tasmanian Medical Board is also compromised. Best friends should not be on the medical board and certainly not when one of them threatens me with information gathered during my investigation, who I believe contributes evidence to that investigation. That is in my submission. One of her best friends has also been adjudicating in my ongoing case and also sits on the national AHPRA board. This is just inappropriate.

Like many, I have issues with the whole AHPRA process. There is massive psychological stress when under investigation, far more than in the most complex surgery I have performed, and that stress is relentless. It has affected me deeply and it has affected my wife and my children. For many accused health professionals, the process results in mental health issues, family breakdown and, for some, suicide. I expand on that in my submission. I have sought access to documentation from AHPRA under freedom of information, but it has been denied. The AHPRA process has shifting goalposts for those under investigation. You answer one allegation and another one surfaces. Trying to defend one's position without knowing the evidence and its accuracy makes for a star chamber circus. If found guilty by AHPRA, there is no adequate recourse and certainly no compensation in vexatious allegations. These situations must be addressed fairly. The process supports vexatious notifications in my case without a single case of patient harm identified ever. I am no angel and admit to treading on some institutional toes, including the Dietitians Association of Australia and those of the food and pharmaceutical industries. I see that their members and alliances have continued to put in anonymous notifications and vexatious notifications to AHPRA and that is likely to continue. The AHPRA process can and has been manipulated by those individuals and associations with agendas and vested interests. This has extrapolated to my own bullying and harassment.

CHAIR: You will need to wind it up because we will run out of time for questions.

Dr Fettke: I am. I am in this position because of my passion for preventative medicine. I have been backed into a corner from trying to stand my ground. Those with vested interests want to silence me. The AHPRA process is aiding those parties. The process is flawed within AHPRA and in the hospital system. I am just one victim of those failings. This Senate inquiry is both timely and personal. I encourage you to place my written submission on the public record as there are no patient names involved. Thank you for listening. I hope you can make a difference.

Dr Fratzia: I have been a medical doctor for 33 years in Australia and I have practised exclusively in intensive care for the last 23 years as a specialist. I have worked in military, private and public hospitals. In the last decade or so I have worked exclusively in the New South Wales public health system, in five area health services and in tertiary, major metropolitan, rural and regional hospitals. I have been mentoring other doctors, medical students, junior doctors and senior doctors for a very long time. In my view, bullying in the medical profession was once unusual, but now it has become incredibly common, particularly over the last 15 years. In my view, this is not simply because the behaviour of the profession reflects changes in the wider Australian society. I think it is predominantly because the profession's ability to deal with bullies within its own ranks has been corrupted by the non-medical bureaucracy that increasingly controls its behaviour, oversees its values and pronounces judgement on it.

Not only have I witnessed the actual bullying of junior and senior doctors but I have seen the impact of bullying upon them. For example, although I have for many years mentored, over recent years I have been providing predominantly pastoral support for those who have been bullied. I have even had to provide intensive care treatment to a vulnerable young female doctor, as a patient, who tried to take her life as a consequence of bullying. This occurred nine months after another young female doctor left mid-contract because of bullying. This occurred three months before another young female doctor became so psychologically unwell because of bullying—by the same people—that she had to stop working and change states. This occurred two years after the same bullies were reported in writing by yet another female victim, which itself was two years after senior colleagues had reported the bullying of yet another young female doctor. The same individuals who were involved in that bullying were largely still involved and protected by the bureaucracy.

I have witnessed complaint systems consistently fail to deal with bullying. I have observed the fabrication of evidence, the victimisation of the victims, doctors who report bullying of others being punished, and bullies actually getting away with it—they are even rewarded or promoted. The extent of bullying is underrecorded and underreported. In May 2015 the secretary of New South Wales Health sent a letter to all senior medical practitioners. She drew to our attention a zero tolerance of sexual harassment of junior medical staff. I have provided a copy of that letter in my submission. This caused enormous distress to many doctors, because the incongruity between what the bureaucracy says publicly and what actually happens is breathtaking. Most doctors who are bullied avoid reporting it, because they are very likely to experience further bullying once the bureaucracy gets involved—bullying by administrative process—as health executive collaborate to protect their misbehaving medical or non-medical colleagues. Employment and careers are perceived to be placed at risk. Despite any good intent of the secretary's letter, it was received predominantly as impression management at the highest level in response to a television program.

I have submitted to the inquiry eight reasons for the failure of the existing processes dealing with bullying in New South Wales. I have also submitted seven proposed changes which will improve the process. I ask the inquiry to consider them, and I thank you for this opportunity.

CHAIR: Thank you. We will go to questions now but I would remind members that we are dealing with systemic issues rather than individual cases. If you wish to explore individual cases, please relate them back to systemic issues. It is not our job to look at individual or specific issues; we are looking at systemic issues.

Senator DUNIAM: I want to go to the qualifications of the AHPRA investigators who have been referred to in the submissions. What qualifications do they have?

Dr Fettke: I have actually asked them but they would not tell me.

Prof. Stokes: You cannot find out unless someone personally tells you during discussions they have with you.

Senator DUNIAM: We do not know whether they have medical qualifications or whether they are someone with an arts degree or a commerce degree who happens to have become a cadet in the public service and worked their way into AHPRA.

Prof. Stokes: It is almost certainly not doctors that you speak to, and you cannot find out who is behind them.

Dr Mansfield: They advertise in an Australian forum and they have to have some investigative background.

Senator DUNIAM: I am sure many of us will explore that a little bit later on with AHPRA. Just with regard to the skillset, as medical professionals what sort of skillset do you think they should have when investigating these sorts of claims?

Dr Mansfield: I think they should be backed up somewhere in the system by very experienced medical practitioners who can advise them. Obviously, it cannot be doctors and that would not be appropriate but they certainly need to have some very serious component of medical advice.

Dr Fettke: I have questioned this, very specifically, as to what they do. What they do is they collate the information and they only provide a selective amount of material to the board. I have asked for all of my material to be put to the board and have it all reviewed by the board, but that does not happen. It is only very select. So the gatekeepers in our investigations are the investigators not the Medical Board.

CHAIR: How do you know that they have only given a select—

Dr Fettke: I have asked them. And I have received a specific response.

Prof. Stokes: There is another issue to this. If you are not in a major city you have no easy access to these people at all. If you are in Mount Isa or Cloncurry or Cairns or Whyalla it is awful. You are a long way away. The central thing is in Canberra and in the major cities and that is it, and you are distanced from your own legal advisers.

Senator DUNIAM: The final decision is made by the board, is that right, after the investigators have compiled whatever and presented a portion of that information?

Prof. Stokes: Correct.

Dr Fratzia: In the case of what I have reported to the inquiry, I am not reporting, predominately, my own experience though I have documentary evidence, which I can provide, about pretty well examples for everything that I have said. Most of the people who have reported bullying or where there have been investigations that I am aware of—and I am talking about people in different area health services, both junior and senior people, in New South Wales—it has never gone to AHPRA. These have been local or area health service investigations.

The qualifications of the people who are involved in those qualifications are sometimes impeccable, but these individuals are compromised, and they are compromised for a number of reasons. They are often hired guns who have a pecuniary interest. They get paid by the administrations who hire them to do these allegedly independent investigations. And if they perform well they get more. I know of at least two who pop up, repeatedly, in New South Wales.

CHAIR: What does 'perform well' mean?

Dr Fratzia: I think it is if they perform well as the administrations require them to—

Senator XENOPHON: Which is what?

Dr Fratzia: which is to suppress the bullying.

Senator XENOPHON: To suppress the bullying or to suppress the allegations of the bullying?

Dr Fratzia: Or to suppress the allegation of the bullying. In my submission I mentioned that one of the problems is the use of management prerogative to not investigate bullying or complaints of bullying or reports of bullying as 'bullying' under bullying and harassment policies. They use management prerogative to deal with those complaints when they have to, under other systems, like workplace grievance problems rather than bullying problems. They call in the hired gun. I have seen it and heard of it many times. The same people. And they always have the same report.

CHAIR: You referred to additional evidence. I think that would be extremely useful to highlight those points. If you could take that on notice that would be great.

Dr Fratzia: Yes.

Senator DASTYARI: Just a point of clarification—sorry, I am a layman here. Doctor, are you effectively saying that there is a culture or tendency to reward those investigators that deliver the outcomes that AHPRA is after by giving them more work?

CHAIR: In this case, it is not AHPRA.

Dr Fratzia: This is not AHPRA. I am not aware of any AHPRA investigations in my submission.

CHAIR: My understanding is this is the first level of whichever board it is going to.

Senator DASTYARI: That was the point of clarification.

Dr Fratzia: Yes, so this is at a hospital level at an area—

Senator DASTYARI: Good, because that is the point of clarification I was after.

Prof. Stokes: I would like to address what Senator Dastyari asked. It is at the level of administration that a lot of it happens. It even prevents things getting to AHPRA. For instance, I was told not to provide truthful information to AHPRA, because that would have adversely affected the negotiations between AHPRA and another doctor. I did at that stage decide that I did not want to be in medical administration again. It happens with information that is held locally, because of, as I say, a secret communication level that you do not find out about. AHPRA never find out about it, because they do not do any face-to-face investigations.

Dr Mansfield: I was involved in an action which I am now on the webpage for and have to be mentored for two years. I will retire before then. Those four years they looked around to find an adverse report on me and all these cases which were gathered. I had a very even-handed report from a highly regarded professional on the one involved in mitigation, which said I really did not have a case to answer. But 4½ years later, after I sat and waited, they came up with someone, and sure enough it was the vindictive, non-factual, opinionated report that you come to expect from these organisations. They found their hired gun. They then used his report plus the report of two other general orthopaedic surgeons, who had no subspecialty expertise, and a general practitioner who does a bit of WorkCover, and so they had four reports against my one, and that obviously meant that I was guilty. That is the way they operate. They just are hired guns, and they just fudge. They are after a vindictive attack on the medico involved. It is just horrific stuff.

Dr Fettke: It is my experience, and the experience of others that I speak to, that the administration does not want to accept that you have actually put in a bullying and harassment claim, and that it is put under a different name or it is just ignored. That certainly happened to mine. I provided to AHPRA 40 pages of documentation to say that I had put a claim in, but it took two years—nearly three years—to recognise that I actually had a claim. The process is to not accept that there is actually a problem. Therefore the whole thing never really gets a ball rolling. I think that is really what James has been pushing towards as well.

Senator DUNIAM: Dr Fettke, in relation to your comment about either falsified or embellished evidence by AHPRA investigators, surely when you have raised this concern with the authorities there have been some attempts to either clarify that or dissuade you from your view that it has been falsified. What response has been provided to you when this concern has been raised?

Dr Fettke: It is one-way traffic. I presented this in a verbal submission and also in a written one. This is what happens: you put in the information and there is no clarification. There was an opportunity for the AHPRA board, in my verbal submission, to ask me questions, to clarify it, and to date nothing has happened. That is my issue. I have put in numerous questions into my claim over the last 2½ years, and I just do not get a reply. So I try and get it clarified. I say: 'What are you going to do? These are serious issues.' Nothing happens in reply. That is why I call it a star chamber.

Dr Fratzia: I think that one of the methodologies that is employed to suppress reporting of bullying or to avoid dealing with it is to find fault with the clinicians who do the reporting of themselves or of others. It is in the finding fault with the clinicians that the fabrication of evidence occurs.

CHAIR: The clinicians that are making complaints of bullying?

Dr Fratzia: Yes. A clinician may complain that somebody else—a junior or somebody else—is being bullied or they may complain of bullying of themselves and the response is often some sort of fault that has been found with the clinician sometimes on the basis of fabricated evidence, of which I have written evidence as well, that has occurred to people.

CHAIR: If you could supply that—

Dr Fratzia: I could. And so there is this culture where the system seems to dissuade the reporting—deal with it any way possible apart from dealing with it under bullying and harassment policies.

Senator XENOPHON: I ask all members of the panel: do you consider that our medical practitioners either give up practice or curtail their practice because of what has occurred?

Dr Fratzia: I know two senior medical practitioners who have resigned from significant positions in the last month because of bullying, which they have reported.

Dr Mansfield: I am at present liquefying some assets so that I can walk before I am pushed.

Prof. Stokes: In general, what you really want to know is that clearly people do leave because of two things which are academically proven to occur in health institutions more than in any other. The first thing is the process of 'mobbing', where either an administrator or a senior person with power gets a whole group of people to make it really difficult for another person to survive in that institution. It is called 'mobbing' and it is described in academic journals and psychologists understand it. It is not accepted in the medical profession that that actually occurs.

The other thing is the difference between honest peer review and sham peer review. If you really want to get rid of somebody, you set up a peer review committee with the outcome already known by the people that you have chosen. This is the problem I have with our colleges and our institutions—on every committee that you have in Australian hospitals where you appoint somebody, it has to be a representative from a college. Why on earth should that be? It gives them enormous control. There is no standard internationally for peer review; a peer review can mean anything. It does not necessarily mean you did things right. We would prefer if it was called 'honest peer review' and 'sham peer review'. These are things that can drive people out of the professions because they can see the injustice of it. In the worst example of it, they get a weird psychological illness and some—very few but a significant number—of really important doctors in Australia recently have committed suicide because of mobbing and because of sham peer review.

Dr Fratzia: I have referred to this 'mobbing' in my submission as the first reason for failure. The methodology that appears to be employed is to not deal with a complaint under bullying and harassment policies but to deal with it as some sort of workplace grievance then convene a committee of people who appear to have discussed in detail the complaint, decided on a course of action and then sit with a clinician who is reported and find fault with them. That collaborative process of finding fault with the reporter is mobbing; that is what it is. I have referred to it as one of the problems.

Dr Fettke: I completely agree that I think that I have been a victim of mobbing. I am seriously considering all of my work options, including those of not working, and I am also moving interstate. If a condition is placed upon your name which is not appellable at this point in time, then I am aware of colleagues who have had jobs not provided to them. It has been seen as a discriminatory practice. So, even though a condition is placed upon your name and it is seen as a lighter sentence, people will lose jobs as a result of that. That obviously has significant financial issues to you and can change your pathway and career significantly.

Senator XENOPHON: Because of time constraints, I just want to ask one final question. This goes to the culture of harassment and bullying. There was that famous comment made in the context of the Defence Force by General David Morrison: 'The standard you walk past is the standard you accept.' Most professions have a cultural system in place where they apply helpful pressure amongst peers to do the right thing. My question is: does this occur? If not, why not? My next question, because of time constraints, is: surely in an institution you have HR managers; do you involve them? They are supposed to be trained in relation to dealing with complaints. And the final step is obviously to make a complaint. I accept what you are saying, but how is it that the system has broken down at so many levels?

Dr Fratzia: The HR managers do not act on behalf of anyone but the organisation. They essentially do what the general manager tells them to do. They are there to protect the organisation. So the HR managers are a problem when we try and deal with these things. We cannot go to HR.

The second thing is: the initial response is generally to involve a whole bunch of people from the bureaucracy, but the individual who has made the report has to remain silent and maintain confidentiality, and the HR managers are consulted by the organisation about how to deal with the bullying. So the HR managers are no help at all. As I said in my opening statement, the profession's ability to support, or to deal with the bullying, is corrupted by the non-medical bureaucracy that gets involved in these things.

CHAIR: Can I just check this with the witnesses and the senators. We have had a witness just pull out because they are unwell. What I intend to do is to reallocate some of that time. So I am proposing that we add another 15 minutes to this panel and add some time to the other panels. Is that acceptable to our witnesses and to the senators? Okay; in that case, we will go to 10.45—

Dr Mansfield: Chair, I am half an hour late for an operating list, so I really cannot push it any further out. I thank you very much for my opportunity to be involved here and apologise for having to go.

CHAIR: That is fair enough. Thank you. If it is satisfactory to the other witnesses, we will continue to 10.45. That means that, for those other witnesses, we are shifting by 15 minutes.

Senator WHISH-WILSON: Dr Fettke, you raised the issue of bullying using social media, which is not something I have heard before. Can you elaborate on your situation at the Launceston General Hospital?

CHAIR: Can you also do that in a general sense, please?

Dr Fettke: Yes. My issue is not just bullying in that situation. I have had the examples of defacement of posters and a picture of our family kitten stabbed on my locker in the operating theatre. And when you raise these issues—and actually I raised this, and I am just using a little personal example—and go through the process of, 'Who do you report to?' then they are ignored. My situation at the hospital—and not just the cyberbullying—was that I requested an investigation, and an apology letter was supplied in February 2014 and I received it in July 2015. I think it was withheld by the chief executive officer and the director of medical services for 16 months. I knew about that letter, and I believe that to be specific provocative behaviour upon my situation. I put in incident reports about the fact that it was not being assessed. Incident reports have to be acted upon. Then one CEO left, and on the day of his resignation he said, 'We should have a meeting and sort all this out,' and then left the position. The next CEO took it on board, and it took me four months to get that apology letter. Then, when I tried to develop conciliatory actions between myself and the director of medical services, she said, 'We should meet, we should meet, we should meet.' Then that all got cancelled and then she resigned. So I am on to my third CEO now.

You try all these pathways to try and sort the situation. Whilst all this was going on—the AHPRA investigation, and the hospital administration was submitting information to AHPRA—I found out that the very person submitting information to AHPRA was the same one who posted defamatory material on a social media hate site called 'Blocked by Pete Evans', which he has finally stopped. But he has now exposed me to that group. I am the only doctor persecuted in that group on an ongoing basis. Now my wife has been attacked in that group, and my staff and a dear patient of ours, who is in a fairly threatened position and quite vulnerable.

The issue of cyberbullying has not been addressed at all in this. We talk about in-hospital bullying, but we are now in a situation where most of the colleges are advising us as practitioners to be in that space and educate the community. I have been active in that over the last four years. There are very clear recommendations from that. The Medical Board has not addressed that and neither has the AMA. The doctor-patient relationship in relation to media—whether or it is print, electronic or social media—is not defined.

CHAIR: Can I seek a clarification: when you say the colleges are advising you to be active in that space, you mean in the social media space?

Dr Fettke: Yes. The College of Surgeons.

CHAIR: I just wanted to clarify that.

Dr Fettke: There is a position statement on it. It is all about public health, the community and trying to get the message out to a broader area. That is the space; it is called e-health now. Accepting that our patients are on social media, they are now trusting strangers on social media more than they are trusting institutions. It is a sad indictment, but that is what is happening. We are now in that situation where, once you are involved in that space, you put yourself in a degree of vulnerability, and I accept that. But I should not have been put in that position of vulnerability by the director of medical services. In any other institution, any other business organisation, if your boss starts cyberbullying you, that is a grave concern. But, in the public health system—despite breaking every social media policy within the Tasmanian health organisation—that has not occurred.

CHAIR: I want to ask our other witnesses about that specific issue of cyberbullying.

Dr Fratzia: I have not seen any cyberbullying. What I have seen is the use of email copying, and so on, to essentially denigrate the target at that time.

CHAIR: Professor Stokes, have you seen cyberbullying?

Prof. Stokes: Yes, I have seen it. One of the doctors that had complaints about him made to AHPRA, and restrictions placed on his practice—several of the mobbing group arranged for that webpage to be on in the operating theatre so that everybody that walked past it saw it. That was a really nasty thing to do to him. He was reminded of it all the time. So, yes, I have seen it in practice. I have seen out in the open, not just by accidental clicking but made obvious to all the staff that somebody had had a complaint about them.

Dr Fratzia: This raises something that you may not have considered—that is, the people who are involved in doing this to the complainants, or those who complain about the bullying of others, get away with this with impunity. There are no consequences for them. In this entire process the only consequences are for the clinicians.

Senator XENOPHON: I know the chair's quite reasonable suggestion is that we do not go into individual cases, but, when it comes to issues of defamation, Dr Fettke, did you seek advice in respect of defamation and were you told that it was not actionable or just too difficult to pursue?

Dr Fettke: I have had formal legal advice on that, at the cost of many thousands of dollars, and the advice is that there is a long, protracted course which is just messy and that there is no winner in that and not to do it.

Senator XENOPHON: Have you been advised that the Children's eSafety Commissioner—it is a bit of a misnomer—does actually deal with complaints more broadly? It is unfortunate that people think it is just about children in that the Children's eSafety Commissioner does have a role for that sort of harassment.

Dr Fettke: It is one avenue I have not pursued. I have looked at—

Senator XENOPHON: Probably because of the name—because people think it is about children only.

Dr Fettke: On cyberbullying, in view of letting AHPRA know and letting you know, on the Blocked by Pete Evans page, they regularly post the method of reporting health professionals to AHPRA. They show you: 'This is how you do it. We should report Legless Fettke'—that is what I am called—'You should put in Legless Fettke to AHPRA. If you're worried about any health professional giving advice which isn't mainstream, this is how you do it.' They give you the website and all the links and they tell you how to do it. I call that cyberbullying. I do not know these people.

Senator XENOPHON: The final question to all of you is: leaving aside defamation, which can be very hard to access for costs and the risks involved, and the e-safety commissioner, what about the professional conduct rules that relate to the medical professions, whether it is the AMA or various colleges? Have any of you approached them to say, 'This is happening. Why isn't this covered? Isn't this a breach of the rules? If not, why aren't the rules amended to cover this sort of behaviour?'

Dr Fettke: I have done exactly that and I have gone through the AHPRA process. It was heard interstate, which is against the normal protocol, and I suspect that is because of the person's seniority within Tasmania. I have questioned that and it was just dismissed—'Oh, he's not dangerous to the community,' even though he has failed in codes of conduct. You try that pathway within the health system in your own state and it fails. I am travelling another pathway now. All we are doing is seeking conciliation and a cessation of behaviour. I do not know what other pathways to take, but I am not alone in my story. I have colleagues, and you will read this in the submissions. You try all the normal avenues and it is brushed aside because bullying and harassment are too hard a topic to talk about in the health system.

Prof. Stokes: This is at the heart of the issue. It is not in the code of conduct and it should be. It must be recognised. I can tell you from a personal point of view that a bully that approached me had to sign a document for one of the senior colleges here that he would never do it again. It has never been made public. I found out about it because of the secret culture and somebody told me. so the college actually recognised this chap was a bully and made him sign an affidavit that he would do no more vexatious reports. But that is not public knowledge. He suffers no consequences of it. He gets away with it.

There is a book that is really worth reading if you have time called Unaccountable, published by Martin Makary, who is a professor of surgery and patient safety with the World Health Organization. The full title is Unaccountable: What Hospitals Won't Tell You and How Transparency Can Revolutionize Health Care. There is no transparency about AHPRA and there is certainly no transparency in how some of these decisions are made in our hospitals.

Dr Fratzia: Again, this is not to do with AHPRA, but this is to do with what I am aware of and what I have seen in the system dealing with doctors who are bullies. Generally, it is quite easy to deal with a doctor who is not protected by the administration. The colleagues tend to deal with them. It is those who are in the administration in some way—medical administrators or managers of divisions or whatever. Doctors in those positions get away almost with murder. In the case that I mentioned earlier of those young female doctors, none of those have been dealt with. They happened years ago and were reported, either by the individuals or by senior practitioners, but they were not dealt with because those involved are a part of management. When you try and deal with them privately—outside of the system—it is impossible. It costs too much money; you cannot do it.

Senator WHISH-WILSON: Dr Fettke, who regulates dietary advice in Australia? Does AHPRA have oversight into the provision of advice by medical professionals?

Dr Fettke: No. I think that is a central issue.

Dr Fratzia: I think they do, actually. They have to be registered with AHPRA.

Dr Fettke: No, I have explored that: the Dietitians Association of Australia is not under the governance of AHPRA and they have proclaimed that they are the peak body for nutritional advice for the country. Medicare and private health funds accept that they get a rebate accordingly. I think there is a central issue in that, as doctors, we are all supposed to be giving nutritional advice, that the AMA statements make that point accordingly and that my MBBS, my first medical degree, is the same as every other doctor's. What has been raised in my situation is that, because I am an orthopaedic surgeon, I am not allowed to give nutritional advice. I have raised this with AHPRA. I said, 'Either I'm a doctor and I can give nutritional advice or all doctors can't give nutritional advice, because the Dietitians Association of Australia is the peak body, in which case AHPRA don't have the ability to give jurisdiction.' I realise that is specific, but you have asked a specific question.

Senator WHISH-WILSON: Yes. I was interested in the implications of that. It is very brave of you all to front the inquiry today, tell your personal stories and raise these issues so we can get solutions, and I hope the committee can do that. Could you tell me, if you feel comfortable answering, about the impacts that not only appearing here today but also your ongoing work that you do and the investigations are having on your personal and family life.

Dr Fettke: It has changed me as a person. I think we all go into medicine for all the right reasons: to try and make a difference. When you try and make that difference and you are hammered not only by your institution but then in the wider community, it changes you. I am more defensive about what I say to my patients. When you are under investigation, particularly for a vexatious claim, you think, 'Actually, I've done nothing wrong here; I'm helping people.' It becomes all-consuming. You lose sleep. My wife and I spend hours beyond normal work hours trying to sort this out. It has affected our children with a combination of anxiety, depression and becoming more introverted. What should be a pleasant experience of helping people is now something you question every day: 'Why do I keep doing this?'

Senator WHISH-WILSON: How many patients would you have seen in your 20-plus years in Tasmania as a surgeon?

Dr Fettke: A few thousand.

Senator WHISH-WILSON: Dr Fratzia, do you want to make any comment?

Dr Fratzia: I think what Dr Fettke has said is common to all practitioners in that situation. From what I have seen happen—particularly to others, but also, to some extent, to me—my response is to tell my children and everybody else to stay right away from medicine; to do something else. Even though they are mainly adults now and they are interested in researching cancer treatments, immunisations against pandemics and so on, I have told them to stay right away from medicine, because of what I see every day.

CHAIR: Dr Stokes, did you want to make any comment?

Prof. Stokes: When I had two complaints made about me—each of them were for different things, and none of them true; found to be without foundation over a period of six months—it was the most devastating part of my life to have to put up with that. The thing it did teach me was resilience. Having been found that the complaints were all unsubstantiated, it taught me that I should actually devote a lot of my time to trying to right this wrong. That is essentially what I have done: I have re-established my practice and I am passionate about making a difference with this and getting the people in AHPRA to realise that, individually, a lot of damage is being done.

So, if anything, that is a positive I can take out of it. The thing I cannot take as a positive out of it is that a good friend of mine is now suicidal and is not practicing because of what his colleagues did to him. I find it very hard to put up with the fact that it can actually be like that. The example I give is that we are like a mob of sheep being attacked by wolves. The wolves usually attack the sheep on the outside—an outlier. The herd moves away; it does not help. If the herd of doctors actually stood up against bullying it would stop; the bullies would be forced away from the herd. But that is not the way it works, unfortunately. I have grown up in a culture where it is tolerated. It has gotten worse, particularly since mandatory reporting was introduced and all you have to say: 'In good faith, I am reporting Dr Stokes for whatever he did.' You get away it. You walk away scot-free. You can brag to all your colleagues that you managed to make someone's life miserable. That should stop. What is severely wrong with the whole system is that you can get away with it. You should not be able to get away with it.

Senator WHISH-WILSON: Just one very quick question: when you are being investigated, is it made public or do you have to make it public yourself?

Prof. Stokes: You have to tell all your employers, which for me involved about four hospitals where I work as a BMR, and I had to tell the university where I am an academic. That is immediately a change in your life, because everybody goes, 'Well, that could be true' and it is not true. Afterwards, when it is found out, people say things to you like, 'Well, get yourself a dog if you want a friend.' It is something that lives with you forever after. It is AHPRA's process that destroys people. I can understand people who continually get complaints being completely driven to give up medicine and do something else.

Dr Fratzia: What happens is that the individual usually receives a letter which says that you are bound by confidentiality. The confidentiality immediately isolates the person. They are often given the name of someone within the organisation who is a counsellor or somebody else that they can go and talk to, but that person has no insight into what they do. The person who has made the complaint or about whom a complaint has been made immediately becomes isolated. I think Senator Xenophon said earlier that justice delayed is justice denied. It then gets delayed by months and years before anything else happens, and that person is isolated for a significant period of time. That destroys them. It is a pastoral disaster.

CHAIR: We have two different responses here. Dr Stokes, you said that you have to tell your employer. Dr Fratzia, you say that you are bound by confidentiality.

Dr Fratzia: That is right.

CHAIR: Which is which?

Dr Fratzia: They get a letter. You are bound by confidentiality.

Senator WHISH-WILSON: Do you have a different view, Dr Fettke

Dr Fettke: Because I am in that process—

Prof. Stokes: The letter says to tell your employer.

CHAIR: So it is confidential but you have got to tell your employer.

Dr Fratzia: You get the letter from your employer. The confidentiality essentially protects the bullies; it does not protect the person who is reported.

CHAIR: It sounds like we are talking about the other complaint systems, not just the AHPRA system.

Dr Fratzia: That is right.

Dr Fettke: Under the AHPRA system, if you are looking at potential employment or as an employee, you are supposed to notify your employer of the fact that your under investigation. Therefore—and this is the whole process—you are guilty under the AHPRA process, the health complaints commission. You are guilty until you prove yourself innocent, and there is no help in that. I have had two previous vexatious notifications under the health complaints commission, and, without going into the detail, they were both thrown out. It is a long, drawn-out process. AHPRA does the same thing. At the end of those investigations, I got a letter saying, 'Look, there was no problem.' It takes months to years.

Senator WHISH-WILSON: How is it that your investigation was reported in the Sydney Morning Herald by a journalist? If it is confidential then how is it that that situation was made public in a media report?

Dr Fettke: I utilised the fact that the proposed action was to silence me on the whole field of nutrition and giving that advice, so I made that public. But as a result of that, members of the DAA, and particularly reporters affiliated with them—in fact, they are award-winning journalists—decided to publish that material in The Age and The Sydney Morning Herald, with no right of reply from me. I do not have the ability to take on The Age and The Sydney Morning Herald.

Prof. Stokes: There is no requirement for the person who reported you to remain quiet, and they sit on aeroplanes bragging about what they have done. People find out.

CHAIR: To clarify that, if the complaint is made against you, you are bound by confidentiality, but if I am making the complaint, I am not?

Prof. Stokes: You are not likely to even bother if you are bound by it, but I do not think you are. For instance, I will give you a good example. On the second complaint that was made against me, I forgot—I overlooked—one hospital, and the medical superintendent rang me up and said, 'John, you haven't told me about the second complaint about you.' How did he know there was one? I have no idea, but I actually know I had not told him, so I had to write a report for him.

CHAIR: We will check about the whole issue of binding the complainant.

Dr Fettke: They write you a letter and they say, 'This is private and confidential,' but I do not know if it is private and confidential for them or private and confidential for me. That has not been clarified, and it would be nice to know.

CHAIR: We will clarify that.

Dr Fratzia: I know of one doctor in New South Wales where a fault was found with that doctor for telling his wife.

CHAIR: That there was a complaint going against that doctor?

Dr Fratzia: That there was an investigation.

Senator GRIFF: I would be interested in hearing from the panel, and from Dr Fettke in particular: have you raised any of these issues with the ombudsman at all?

Dr Fettke: Yes, just recently. I have raised both the issue of freedom of information with the national ombudsman and the issues of the board members being best friends and contributing advice to my investigation. Both of those letters have referred me back to AHPRA, so I have said, 'I've come from AHPRA.'

Senator GRIFF: So it is AHPRA's responsibility?

Dr Fettke: It has gone to the national ombudsman and then back again to AHPRA. That is all still in progress.

Senator GRIFF: Dr Fratzia, do you have a similar situation?

Dr Fratzia: I am aware of the New South Wales Ombudsman being sent information stating that particular behaviour towards two doctors was related to bullying, and the ombudsman essentially said that it does not fall under their jurisdiction.

Senator GRIFF: But you have not had that discussion with the National Health Practitioner Ombudsman and Privacy Commissioner?

Dr Fratzia: No.

Senator GRIFF: In your case, Dr Fettke, you did speak to that originally? Correct. I have a brief question to Dr Stokes: in your submission, you talk about the desirability of requiring complainants to sign a declaration that their complaint is being made in good faith. You make the statement that you support the introduction of a signed declaration with consequences. What sort of consequences do you think are appropriate?

Prof. Stokes: It is professional misbehaviour to try to destroy somebody's reputation and stop somebody from providing medical care. AHPRA have every right, under the current legislation, to take that person on, but they choose not to and they protect this. That is my attitude towards it. It would be solved by putting it into a code of conduct, and you would not have to find anything; it would just be expected of a doctor that he would not make vexatious complaints. It is something that I cannot understand why we defend. I do not want to stop patients from making complaints, but I want to stop the use of destroying doctors for financial reward or power, or for stopping safety measures from being introduced into hospitals.

Senator GRIFF: What would you see as the consequence to the doctor of doing the wrong thing?

Prof. Stokes: He might be fined, he might be cautioned and have to undergo some remediation—that sounds very communistic!—but he should realise that professional misbehaviour carries a consequence of sorts. Maybe he should have to reimburse the doctor that had to stop practising for 12 hours or had his practice damaged. It is not good enough just to be able to get away with doing it, and with just those few good words—'in good faith'. I would say this: that is not good enough for a professional. So if it is part of a code of conduct, so be it—and we all live by it and work by it. And then you would do it seriously—not do it frivolously or to try and destroy somebody's career.

There are two interns in Australia whom AHPRA has cooperated in making virtually unemployable. They were passed for their intern year but had restrictions put on their practice because the director of clinical training objected to them. They were a minority group from overseas who did their medical training in Australia. They cannot practice because they have restrictions on their practice. It was a catch 22 situation. They have satisfied the requirements to be made doctors but they are not allowed to practice without restriction—and nobody is going to employ them in that strange land. I think the director of clinical training who did that to them should really face the consequences of what that person did to two young lives.

Dr Fettke: As I said at the beginning of my statement, I am speaking for many. I am at a certain age and security in my life where I can speak out. Many junior people try and speak out and they have minor conditions, minor words of mouth. I have intervened in an email exchange between significant heads of the college. I said, 'You can't say that about someone.' That person's career was ruined by this email exchange. I have now upset most of the heads of the orthopaedic association because I have dared to call them out on misbehaviour in email communications. So I am in a position to say this is not just my problem; junior staff, and their entire careers and lives, are being devastated by the process of bullying and harassment aided and abetted by the AHPRA process.

CHAIR: We have run out of time. Could I ask you to take something on notice. It seems to me that the AHPRA process at this stage—and obviously we have still got a lot of the hearing to go—is not necessarily the best system for dealing with, in particular, bullying and harassment because it is hard to fit it into their definition of patient safety and risk. Dr Fratzia, I note your seven-point plan. I would like each of you to give some further thought to the best way to deal with bullying and harassment given the process that exists for AHPRA at the moment. Is it by amending the national law? I realise that there are different stages where bullying and harassment are dealt with but, in terms of the AHPRA process, what would be a better national process? I would appreciate it if you could give some thought to that.

Prof. Stokes: That is not a new suggestion. It was done in the United States over 15 years. And the disappointing thing is that despite a major university trying to stop harassment by junior doctors, interns and medical students, over the 15 years, having put a huge amount of resources into it, it made no difference—education and things. I can tell you that reference. It was published in 2010.

CHAIR: One of you has already mentioned that in your submissions. I remember reading the citation. If you have any further thoughts about how to deal with this issue as opposed to—I understand the vexatious claims issue, but there are is the bullying and harassment process. If you could take that on notice, that would be appreciated. Apparently there are some media who would like to come and take some photos. We are suspending for a break now. I just want to confirm that you are okay with them taking photos in the room. And I will ask each witness afterwards if they are okay with photos being taken, in case they are not in the room.

Proceedings suspended from 10:49 to 11:05