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Panel debate: Dr Sally Cockburn, GP and health advocate, and independent Senator Nick Xenophon -

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TONY JONES, PRESENTER: To discuss the issue, I was joined a short time ago by Dr Sally Cockburn, a GP and health advocate. She's written on this topic as part of her Masters and - in health and law and she joined us from Melbourne. And from Adelaide, the independent Senator Nick Xenophon. He's spoken to several surgeons who've faced similar issues.

Thanks to you both for joining us.

NICK XENOPHON, INDEPENDENT SENATOR: Pleasure.

TONY JONES: Now Dr Sally Cockburn, is Dr Richard Emery's story symptomatic of broader problems with the craft peer-reviewed system and the audit system generally?

SALLY COCKBURN, GP & HEALTH ADVOCATE: Look, absolutely. When I sort of heard about it, I must that it sounded terribly familiar, very much in the modus operandum of the way people go about I suppose doing it, if you will.

TONY JONES: Yeah. Now, the craft group system was set up with the best of intentions, you'd have to say, so that surgeons could be judged by their peers. Do you know other cases where it's been abused?

SALLY COCKBURN: Yes, I do and that's one of the reasons why I want to be here tonight, because I know how many people are so afraid to speak up about it, Tony, and I think it's a real problem. I think that while people may have good intentions, I think some people don't.

TONY JONES: So, very briefly, what other cases are you talking about?

SALLY COCKBURN: I can tell you about a case about eight years ago where there was a group of surgeons who went to a - an administrator at a hospital and said that if the hospital employed a particular trainee, they would resign en masse. They did this at two hospitals. The administrators didn't know why they were doing it, but the surgeons said, "You must write a letter to the college." They wrote a letter to the college. That trainee was then dismissed, because what no-one knew - well, I didn't know who didn't know - there's a little-known clause in this particular college that said, "If you don't meet the employment requirements of two or more public hospitals, we can dismiss you." Now this trainee, we saw it, we fixed it, this trainee got back on and since then got their fellowship, but I don't know how much other people - how many other people there are out there who are victims of this particular modus operandum.

TONY JONES: Now, in private hospitals, Sally, like Townsville's Mater in our story, these peers are sometimes judging the work of people who are essentially in surgical competition with them. It's like an economic competition, you'd have to say. Does that give rise to conflict of interest?

SALLY COCKBURN: Personally, I think it does and the ACCC certainly looked into this in the early 2000s and told the colleges that they need to watch themselves on this sort of thing. Look, again, I can't say their motives, but I must say that there is a conflict of interest and they must realise that this needs to be judged externally.

TONY JONES: Nick Xenophon, conflict of interest?

NICK XENOPHON: Well it's a bit like Woolworths deciding where the next - the planning application for a Coles supermarket in their area. There is a clear conflict of area. And disturbingly, what happened to Richard Emery, as Sally said, is not an isolated incident. I'm aware of a number of cases involving surgeons where it appears that the complaints mechanism was used more to protect a closed shop rather than to uphold the highest standards of patient care, which is what the complaints mechanism ought to be about.

TONY JONES: Alright. Are you in a position to tell us about those cases, those individuals or are they, like so many people, too frightened to talk?

NICK XENOPHON: I have to be incredibly circumspect, but I am satisfied from the work I've done on this, from people that have spoken to me, that this affects probably many dozens of surgeons around the country and the flow-on effect of that could be quite huge in terms of hundreds, if not thousands of patients being affected as a result. And the fact that the Royal Australasian College of Surgeons has an expert advisory panel that is looking at issues of bullying and harassment and there've been dozens and dozens of submissions to that inquiry by surgeons I think is very telling.

TONY JONES: Sally Cockburn, have we got a serious cultural problem with the way some of these surgical craft groups operate?

SALLY COCKBURN: Yes, absolutely we do and I think they're answerable to themselves and I think that it's time that that power was taken away. Look, I think there's some people doing some very good work, and don't get me wrong, not all surgeons are bad, not all doctors are bad, but they need a reality check with what it's like to work in the real world and I think it's very important. But you know what though? There's been a federal inquiry and that's what really worries me. In 2012, Lost in The Labyrinth was published. It sat on a parliamentary table. It is gathering dust. The Government hasn't responded to it, and that could fix it. There's so much in there that needs to be worked on.

TONY JONES: Nick Xenophon, that inquiry essentially dealt with overseas-trained doctors. Has it been - is it just gathering dust, literally?

NICK XENOPHON: Well, clearly it is and it ought not to. There needs to be a fresh priority in relation to this. But this is not just about overseas-trained doctors - I'm interested to hear what Sally says about this - but it's about locally-trained doctors as well, where the club is such that you are excluded, where the interests of patients aren't the paramount consideration, but the interests of maintaining a closed shop and that raises all sorts of issues in respect of the ACCC. I think we also need to ask questions since that report was provided about AHPRA, the role of the regulator, relatively new regulator in this field, where - what their role has been, whether they actually look at complaints in a way that can try and distinguish between those made in bad faith and those made in good faith and I'd like to find out from the regulator as to how they deal with these complaints.

TONY JONES: Sally Cockburn, what do you think about the way AHPRA was used in this case and is there a particular problem here with overseas-trained doctors? Is there - are they more likely to find themselves in this kind of situation?

SALLY COCKBURN: I don't know that it is only overseas-trained doctors. I think that some doctors have got it into their head that they can go and complain to AHPRA about someone they don't like. And I don't know about this particular case, what's been borne out by AHPRA, but I do know of cases where people made multiple complaints made to AHPRA about them, which they've been exonerated for, but nothing has happened to the people who made the spurious complaints.

TONY JONES: Now, Sally, as we saw in Steve Cannane's story, the former director of medical services at the Mater Hospital, Dr John Stokes, says Richard Emery wasn't given a fair hearing, and we're talking now at his craft hearing. Instead he was subjected to a sham audit - that's what he calls it - which is used to harm a person. Have you seen this kind of thing before?

SALLY COCKBURN: Yes, I have and I believe that what happens is - you've got to look at how people are registered. So, let's just say someone is registered in a particular craft group. If their - if their - sorry, if their specialty doesn't fit under a particular craft group, but they're just allocated to one, then the people judging them are not their peers. So, for example, I think of the example of Thomas Kossmann in Melbourne who I have a great deal of respect for. And he was classified as an orthopaedic surgeon, but in fact he was a trauma surgeon. So he was judged by orthopaedic surgeons. So, you know, it's - they judged him correctly to their yardstick, but we need to compare apples with apples.

TONY JONES: Yeah. Nick Xenophon, the way the audit process worked here - I mean, you talked about a closed shop earlier, but are there broader concerns, because in the end, a letter was written to AHPRA even after AHPRA had done its assessment and found that Dr Emery had done nothing wrong?

NICK XENOPHON: Well, AHPRA needs to be held to account in relation to this and I want to work with my colleagues from the Government, the Opposition, my crossbench colleagues, to look at getting a Senate inquiry into these issues because these are pretty fundamental and key issues. If our regulator in the health sphere is not doing its job as it should, then that has very serious implications for our health system, and the fact that here it seems that we've lost a very good surgeon who's been hounded out of the country and that's something that the Australian community has missed out on, particularly the people of Townsville.

TONY JONES: So are you saying the notification system to AHPRA is open to abuse?

NICK XENOPHON: Well, the notification system and the way it's dealt with need to be looked at. If complaints are made that are made effectively in bad faith, if they're used as a mechanism to hound and harass a doctor who is meeting all the key benchmark requirements, then you need to look very closely as to whether AHPRA is able to distinguish between those complaints made in good faith and those made in bad faith.

TONY JONES: Sally.

SALLY COCKBURN: But Tony - yeah, can I say: the difficulty is is the way the notification system has changed is it used to be that you had to make a complaint. Making a notification means you're raising issues, not necessarily saying something bad about the doctor. So, it's a double-edged sword. We will lose a lot of doctors who would otherwise speak up about something. But I think as Nick said, the key is that doctors making spurious complaints need to be dealt with.

TONY JONES: Nick Xenophon, we're nearly at the end, but the local Liberal MP up in northern Queensland, Warren Entsch, wrote to the then Health Minister Peter Dutton expressing his concerns about the treatment of Dr Emery and got, in his words, no real response. Should the minister have acted in this case?

NICK XENOPHON: Look, I need to see the correspondence, but I'll be talking to hopefully Warren Entsch and I will be sitting down early next week because we need to bring this to a resolution. This can't keep going on and we need to get some results from, if need be, another inquiry.

TONY JONES: Nick Xenophon, Sally Cockburn, we'll have to leave you both there. Thanks so much for joining us.

SALLY COCKBURN: Thank you.

NICK XENOPHON: Pleasure.