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Community Affairs References Committee
Medical complaints process in Australia

FLETCHER, Mr Martin, Chief Executive Officer, Australian Health Practitioner Regulation Agency

Committee met at 17:02

CHAIR ( Senator Siewert ): I declare open this public hearing and welcome everyone here today. We acknowledge the traditional owners of the land on which we meet and pay our respects to elders past and present. This is the second public hearing for the committee's inquiry into the medical complaints process in Australia. I thank everybody who has made a submission to this inquiry. This is a public hearing, and a Hansard transcript of the proceedings is being made. The audio of the public hearing is also being broadcast via the internet.

Before the committee starts taking evidence, I remind all witnesses here today that in giving evidence witnesses are protected by parliamentary privilege. It is unlawful for anyone to threaten or disadvantage a witness on account of evidence given to the committee, and such action may be treated as a contempt by the Senate. It is also a contempt to give false or misleading evidence. The committee prefers all evidence to be heard in public, but under the Senate's resolutions witnesses have the right to request to be heard in private session. If you are a witness today, let us know if you want to do that, because we have to prepare for it. Welcome, Mr Fletcher, and thank you for coming today. Could I just confirm that you have been given information on parliamentary privilege and the protection of witnesses and evidence.

Mr Fletcher : Yes.

CHAIR: I remind senators that AHPRA has previously advised the committee that they are unable to publicly comment on individual cases. Should senators wish to ask questions about individual cases, Mr Fletcher may request that the committee hold an in camera session to provide that evidence. What I would suggest, if that is something that people want to do, is that we get the public issues done first and then go in camera, instead of going in and out. That is better from a management point of view, if we do end up in that place. I may, in fact, then say, 'Could you hold that question', and then move on.

Senator XENOPHON: I may have some questions about a particular case, which Mr Fletcher is aware of, but I will not actually refer to names. It is just the general principles.

CHAIR: We are testing the general principles. We will have to proceed with that and test it as we go. Just be aware that that is the situation we may end up in. Mr Fletcher, we have your submission, thank you. I invite you to make an opening statement, and then we will ask you some questions.

Mr Fletcher : By way of background, the Australian Health Practitioner Regulation Agency, known as AHPRA for short, is the national organisation with responsibility for administering the National Registration and Accreditation Scheme, working in partnership with 14 national health practitioner boards, including the Medical Board of Australia.

Let me say that, from the outset, we recognise that bullying and harassment is a serious problem in the health sector. There is no place for it in any of the 14 registered health professions. AHPRA and the Medical Board of Australia want to play our part to end bullying and harassment in the health sector. There are actions we can take uniquely as regulators, and actions that we need to take in partnership with universities, employers, specialist colleges, professional associations and governments. We all have a role in building a culture of respect in medicine.

I want to briefly highlight five actions we are already taking or will take to deal with these issues. One, we want to make crystal clear the expectations of the Medical Board of Australia in relation to bullying and harassment. Bullying and harassment are not acceptable; they have a direct impact on patient safety. The board will strengthen good medical practice—a code of conduct for doctors in Australia to make explicit the standards it expects. Setting clear standards and holding doctors to account against them is the role of the regulator in helping build a culture of respect.

Two, we want to make sure that there are no barriers to reporting concerns about bullying and harassment. We will continue our national awareness and education campaigns with employers, practitioners and the community to make sure that concerns about patient safety are being reported to the right body. We want health practitioners to report concerns without fear of professional recrimination.

Three, AHPRA will commission research on vexatious complaints to deepen our understanding. I think it is important to note that the term 'vexatious' can mean different things to different people. In my experience, some practitioners who are the subject of a well-founded report made in good faith will deny any wrongdoing or problems. However, just because a doctor feels a report was unfounded or vexatious does not make it so. By 'vexatious' I mean complaints motivated by rivalry, commerce or emotion rather than genuine concerns for patient safety. As we have previously advised the committee, the data we have and the available research indicate this is a very small problem, but we recognise it has a big impact when it happens. We will publish what we learn and act on it.

Four, the Medical Board will toughen its code of conduct in relation to vexatious complaints. Establishing a clear benchmark will enable the board to take further action against a practitioner who makes complaints purely to damage another registered practitioner.

Five, the Medical Board will lead the development and implementation of a national annual survey of hospital trainees. This survey will give a voice to trainees and identify potential hotspots of bullying and harassment. AHPRA and the board will work with medical colleges, health departments, employers and the Australian Medical Council to establish this survey as soon as possible.

Linked to these five actions is our ongoing work to improve the transparency and accountability of the assessment of international medical graduates. This is detailed in our recent submission to the committee, and it is important to make sure there is no discrimination. We have an extensive program of work underway to improve the management of notifications and complaints, which we have also detailed in our submission to the committee. I am happy to provide more information and answer questions about any of this work. Thank you.

CHAIR: Could we get a copy of your opening statement.

Mr Fletcher : Sure.

CHAIR: Senator Xenophon, I will throw to you, but, as much as possible, I would like to go through things issue by issue.

Senator XENOPHON: I think that Senator Whish-Wilson has some questions about Dr Fettke. I do not want a traverse that, since Senator—I nearly called him 'Dr' Whish-Wilson—

CHAIR: I do have some questions myself, as well. As much as possible, if other people have questions on a particular topic, what I would like to do is deal with that and then move on.

Senator XENOPHON: I want to ask some questions about the opening statement. I have made some notes, so I am happy to start.

CHAIR: Yes. Okay.

Senator XENOPHON: Mr Fletcher, thank you very much for being here. I note you were overseas on the last occasion. You make reference to vexatious complaints in terms of whether they relate to rivalry, performance or emotion rather than genuine concerns and that there will be a tougher code of conduct. Noting the evidence of bullying and harassment received by this inquiry and noting the media reports relating to bullying and harassment in the profession, you have outlined what you are doing in respect of this. But what actual mechanisms do you have in place to detect and deal with vexatious complaints?

For instance, the courts have well-understood mechanisms to determine whether a complaint is vexatious or not. Obviously, they would not be the same standards, but how do you actually deal with them, and how do you investigate? There could be occasions when somebody might be vexatious in their approach, but it may be a genuine concern that relates to the safety of patients. By the same token, you could the converse: there are no concerns about the safety of patients, but it is clearly an abuse of process. I am trying to understand how this code of conduct that you referred to—and whether it has been developed—will actually work, because there does seem to be a lack of specificity about the whole process.

Mr Fletcher : Just to set some context: the code of conduct that I referred to—and I was particularly referring to the code of conduct for medical practitioners—is Good Medical Practice. Essentially, that sets out the requirements and expectations of registered medical practitioners in Australia. If there were any concern raised about the conduct or performance of a health practitioner, that would be considered with reference to that code and also to the relevant registration standards.

Senator XENOPHON: Is that code up and running, is it?

Mr Fletcher : That code is up and running and has been for many years.

Senator XENOPHON: Is this the AMA's code?

Mr Fletcher : No. This belongs to the Medical Board of Australia. In fact, each of the 14 health practitioner boards has a code of conduct.

Senator XENOPHON: Is there some uniformity in the codes you referred to?

Mr Fletcher : There is; yes.

Senator XENOPHON: Do you think that code ought to be subject to review, given the material that has come to light in this inquiry and previously with the Royal Australasian College of Surgeons' own inquiry in terms of harassment and bullying in the profession?

Mr Fletcher : The answer to that question is that the code, and indeed the codes for all of the health practitioner boards, are periodically reviewed. The Medical Board has indicated that it intends to review the code and strengthen it in two areas: one area is around the expectation of expected behaviour in terms of bullying and harassment—there is reference to that now in the code, but the intention is to strengthen the reference to that in the code—and the second area is to make clear that a complaint that is vexatious in nature, in the sense, as I said, that it is motivated by an intention to do harm to a practitioner rather than a patient safety concern, will also be more clearly explicated in the code.

Senator XENOPHON: I just want to go through a few questions fairly quickly, given time constraints, and my colleagues have questions to ask as well. Is it your view that it is appropriate that there ought to be a review of those codes in the context of bullying and harassment sooner rather than later and that the codes may be somewhat outdated?

Mr Fletcher : The idea of a review in the light of bullying and harassment, as I say, is something that the Medical Board of Australia, particularly, has already indicated it intends to do, with particular reference to those areas that are relevant; yes.

Senator XENOPHON: You have said that AHPRA will commission research on vexatious complaints to 'deepen our understanding'. Does that imply that—I do not want to say this in a provocative way—there is much more that can be learnt by AHPRA in relation to vexatious complaints? Is it that there is a lot that you do not know, or is it that there is more scope to deepen your understanding beyond the current levels of understanding that AHPRA has about bullying and harassment and vexatious complaints?

Mr Fletcher : What I am saying is that in all of the available data and research evidence that we have looked at there does not appear to be a big problem with vexatious complaints, and by 'vexatious' I mean a harmful intent on the part of the person making the complaint and no patient safety concern emerging when we look at the issue. If I can just give you an example—

Senator XENOPHON: When you say 'not a big problem', do use mean that in terms of numbers?

Mr Fletcher : In terms of numbers. If I can give you one example, we have a research partnership with the University of Melbourne. They looked at 850 mandatory notifications over a 12-month period. They found fewer than six that they believed potentially met the criteria for a vexatious notification. The point I am also making is that, even though the numbers are small, we recognise that the impact on the individuals involved can be significant.

Senator XENOPHON: Can we go back a step. You said there were 850 mandatory notifications and six were found to—

Mr Fletcher : Under six. They said 'under half a dozen'.

Senator XENOPHON: Under half a dozen were found to be vexatious. Can you provide, on notice, the criteria for that assessment. In other words, how did they come to that conclusion? It could be an eminently reasonable conclusion they came to. Was there a natural justice process involved? In other words, what was the process to establish whether it is vexatious or not? There are 850 cases. What was the rigour involved? What were the mechanisms? Was there a like-for-like comparison? I am just trying to understand the robustness of the process.

Mr Fletcher : The process involved a review of some of the core documentation in relation to, for example, the correspondence that is sent to a practitioner about a notification that has been received. I can give you a couple of examples to give you just the flavour. One, for example, related to a couple who were both medical practitioners, who had been married and who were divorcing. There was an issue about the future of the practice in the context of their divorce. Another one related to two health practitioners who were in a relationship with the same other health practitioner, and notifications were made in the context of that. So it is typically those sorts of issues around questions of commerce, emotion and rivalry in what we would term harmful intent with no patient safety concerns emerging as a result of a notification.

Senator XENOPHON: Would that be one of the criteria? In other words, if the complaint is motivated by other doctors rather than patients having an adverse outcome—in other words, there is no question of an adverse outcome for patients but doctors are complaining about another medical practitioner—is that a factor where that might raise a yellow flag, at least, to say that this is something that could potentially be a vexatious complaint because it is not generated by any safety concerns as such?

Mr Fletcher : In relation to the comment you made earlier, Senator, there are examples of where the intent in the reporting may not have been particularly honourable but in fact, when we have looked at the issue, there has been an issue of patient safety that has required some sort of regulatory response. So I think there are different elements of this, and the point I tried to make in my opening statement is that it is also the case that at times doctors who may feel that there is no basis for the concern or that it is not right that a complaint has been made about them may in fact feel that that is a vexatious process. I would not necessarily consider that to be a vexatious complaint in the context which we are talking about.

Senator XENOPHON: I have two more questions before I finish, in deference to my colleagues. We have had concerning testimony from AMSA, the Medical Students Association, about the treatment of students. Does AHPRA have responsibility for treatment of students by medical practitioners—often experienced medical practitioners? One idea that has been put to me is to empower universities, who arguably have experience in dealing with these sorts of issues and would not be intimidated by the medical profession, to take responsibility for dealing with student complaints—or is that a matter for AHPRA?

Mr Fletcher : If anyone believes that there is a breach of the code of conduct in relation to a medical practitioner, they can notify us.

Senator XENOPHON: Finally—you may want to take this on notice—I am still not sure how you deal with vexatious complaints or determining whether a complaint is vexatious or not, what the triggers are or how the matrix of it all works. If a doctor says, 'Look, I think this is a vexatious complaint,' does that trigger a certain line of inquiry? On notice, can you provide in writing how that actually works so I can just try to get an idea. Is there a format? Is there a protocol? Is there a kind of labyrinth you go through to try to determine the various factors, such as whether a patient has made a complaint, whether another medical practitioner has made a complaint, whether there are allegations of commercial rivalry et cetera? Could you take that on notice, please.

Mr Fletcher : Yes.

CHAIR: I understand, Senator Whish-Wilson, you have questions in this area?

Senator WHISH-WILSON: Yes, roughly in this area. Mr Fletcher, thanks for appearing today. In terms of some of the evidence that the committee has received, both verbally and in submissions, there are many medical practitioners who feel that the investigations process and notification process can also be seen as bullying and intimidation. You acknowledged in your opening statement that these things can put medical practitioners under a lot of pressure, and it can be quite stressful for them. On that theme, we received evidence in Sydney from a medical practitioner in Tasmania, Dr Gary Fettke. He gave evidence to the committee in the morning of our hearing in Sydney. Three hours later, he received an official caution from AHPRA, after a 2½-year investigation. I have got to say, for him to actually come to Sydney and appear in person was a very brave thing for him to do—an incredible amount of stress and pressure on him and his family. Can you understand why he felt bullied and intimidated, receiving a caution three hours after giving evidence in this committee?

Mr Fletcher : Let me make the wider point. We recognise that being subject to the notifications process can be an extraordinarily stressful thing for a practitioner because there are pretty serious issues at stake, ultimately, in terms of the practice of their profession—

Senator WHISH-WILSON: And their reputation.

Mr Fletcher : and their reputation. Despite the fact that we are not punitive in our focus—we are protective in our focus, so our mandate is a public protection focus—we understand and appreciate that it may not feel like that for the practitioner involved in the process, and that is why we have done a lot of work to look at how, through improved communication, improving our time frames and the way we manage the notification, we can alleviate the stress. I think it is a stressful event.

Senator WHISH-WILSON: I appreciate what you are saying. It makes sense, but they are platitudes. I asked you specifically about this incident. Can you explain to the committee how this occurred? Whether it was coincidence or whether it was deliberate, can you explain to the committee why, three hours later, he received a caution, after a 2½-year investigation?

Mr Fletcher : There is no relationship between the two events. The caution is the result of a regulatory process. It is quite separate and unrelated to anything that he might do in relation to this committee, or that appearance.

Senator WHISH-WILSON: Do you agree it was bad management, issuing a caution after a witness had given evidence to a Senate inquiry that included evidence that he had been bullied?

Mr Fletcher : There is no relationship between the two events.

Senator WHISH-WILSON: When was the decision made that he would be cautioned?

Mr Fletcher : I would have to have a look at that.

Senator WHISH-WILSON: Could you let us know when the board met on that decision? My understanding is it was weeks before the email was sent. I am very interested as to why that email was sent out that afternoon in particular.

Mr Fletcher : Typically—if I can just explain the process—a board would meet and make a decision. There would then be a process of confirming the decisions and action of the board, because it is obviously important from an AHPRA point of view that we have absolute accuracy in terms of the decisions of the board to take regulatory action, or not, as the case may be. There would then be a process of the correspondence being drawn up and sent to the practitioner in relation to that board outcome. That would be the normal process. There is often a gap between a board meeting and then the decision being finally communicated to the practitioner, for those reasons.

CHAIR: Could you supply on notice a time line of when those decisions were made—when the board met, how long it took to draft up the letter, all those events—because, I must admit, it does look odd that, not three hours after he appeared before us, he got his caution.

Senator WHISH-WILSON: You can imagine how devastated he felt when he received that long email on his phone—having a cup of tea with his wife, trying to settle his nerves, and suddenly he gets his caution, after a 2½-year investigation.

Mr Fletcher : Again, I just want to assure the committee that there is no relationship between the two events. We have provided a confidential briefing on this matter to the committee, so whether—

CHAIR: I am very conscious that, at the moment, I think it is still okay for the hearing to be public, because the caution is—

Mr Fletcher : Perhaps we could return to this issue in the context of the confidential briefing.

Senator XENOPHON: Can I ask you something in relation to this line of questioning? Presumably, there would be management committee notes or notes from upper management leading up to this email to Dr Fettke. In the sequence of events leading up to that, there must be an email trail or notes and the like. Are you in a position to provide that so that we can understand why it was that Dr Fettke received this caution immediately after giving evidence at a Senate inquiry? It does seem to be a rather strange coincidence. I am trying to understand—and I think others are trying to understand—how it is that someone gives evidence, the whole circumstance of this contentious matter, and then within hours of giving evidence he gets hit with this caution from AHPRA. Can you provide us with the materials, the notes and the documents leading up to this decision as to how it came to be at that particular time?

Mr Fletcher : I would reiterate that there is no relationship between the two events.

Senator XENOPHON: I did not ask that. I just asked if you can provide us with the documents.

Mr Fletcher : The caution was the outcome of a regulatory process. We have provided additional briefing to the committee—

CHAIR: It does not have the time line in it.

Senator XENOPHON: I have asked for the documents. Can you provide the documents?

CHAIR: Let us let Mr Fletcher finish his comments.

Mr Fletcher : Essentially, you are seeking additional assurance around the time frame of events in relation to the appearance before the committee?

Senator XENOPHON: Yes.

Mr Fletcher : Let me take that on notice and I will see what we can provide in relation to that.

Senator XENOPHON: Including, specifically, the time line.

Senator WHISH-WILSON: I think it is important to point out as well that it is not just serious from the witness' personal standpoint. From the committee's standpoint, it is potentially a breach of parliamentary privilege. And if witnesses feel that they have been intimidated or punished—and those are the words that are in the Hansard—then it is a potential breach of parliamentary privilege, if this has occurred deliberately. And even if it was not deliberate, it is very poor management on AHPRA's behalf to allow this to happen hours after a witness has given evidence to a Senate committee. At the least, I would like to take it on record. We will accept that it is a coincidence, but if it was, it was very poorly managed for that email to be sent out that afternoon.

On the same theme, can I ask about medical practitioners feeling intimidated and bullied by the process? You put out a media statement last week, a statement from the Medical Board of Australia and AHPRA, 16 November 2016, that related to Dr Fettke's caution. Could you tell the committee how long you gave Dr Fettke to sign release documents to make his files and information public before you put this media release out?

Mr Fletcher : This statement does not disclose confidential information in relation to Dr Fettke. The fact of the caution is already on the public record.

Senator WHISH-WILSON: I accept that. It had been commented on in the Mercury

Mr Fletcher : Our concern was about the level of misinformation there is about what has happened in his case, but clearly we are not in a position to say more without the consent of Dr Fettke. We advised him probably an hour before this statement went out that we were intending to release it.

Senator WHISH-WILSON: He is very precise—he says 52 minutes. That is close enough to an hour. But Mr Fletcher, can you understand that a busy surgeon having an hour to actually know about this and then speak to his lawyers and give you an informed decision on whether he should or should not release the documents is unfair? You make it very clear in what you are implying in this statement, which was in the newspapers in Tasmania, that until he signed over these documents and allowed you to do it you could not comment on the case. But you are very clearly implying that he is blocking the release of documents in this information. That is certainly the way he sees it, and a number of other people. How is it fair that you can give someone an hour's notice? Wouldn't it have been a better process to have let him speak to his lawyers and make an informed decision before you went public with this?

Mr Fletcher : The point that I would make is that our concern is that there is a lot of misinformation in the public domain—not from us—in relation to this matter at the moment, and we are concerned about that. In this statement we did not seek to disclose confidential information. We simply sought to provide a statement of the framework in which the board considers matters such as this. And we made clear that we could not say more without the consent of Dr Fettke.

CHAIR: Why did you put it out with such short notice to Dr Fettke? Given the comments that you made in there about not having his permission yet to release the information, why did you not wait until you knew whether you had it or not before you made the media statement?

Mr Fletcher : Because, again, we have not said anything in this statement in relation to material that is confidential to Dr Fettke—

CHAIR: Sorry, Mr Fletcher. I understand that. You have said it a number of times.

Mr Fletcher : If I could just finish—

CHAIR: The point is: why make it? The question was: why make it so soon after you sent the email? Why couldn't you wait longer for a response?

Mr Fletcher : The reason we put the statement out was the level of misinformation there was. We were getting queries from the media in relation to this and there has been very active comment on social media and the like. So we wanted to move promptly to set out, at least in broad terms, what the framework was in the way that the board approached these sorts of issues—but, as I say, going no further than we could without the consent of Dr Fettke.

Senator WHISH-WILSON: Essentially, you did release that information in this media release. You did not release any documents or anything specific but you have outlined a number of things here that look like allegations. Certainly, Dr Fettke feels that he has been slandered and smeared. For example, you have said:

The Board holds all registered medical practitioners to account against the professional standards set by the Board. These standards are set out in Good Medical Practice

Then it says:

This code:

- requires doctors to make sure their personal beliefs do not compromise the care they provide to their patients …

- prevents doctors putting their commercial interests ahead of their patients' care …

You have gone on and listed another four things that are clearly a statement you are making a statement about Dr Fettke. You are not supposed to be making public statements about him, yet, in a sense, you are. Would that be a correct interpretation?

Mr Fletcher : No, I do not believe that is a correct interpretation. I think what we are saying is the fact that good medical practice is the framework in which the board consider these matters. These are elements of good medical practice that are obviously salient. The other point that was very key was the fact that the caution was in the public domain—Dr Fettke had put that in the public domain—but it was being misreported as a ban or a gag. We wanted in the further information in the statement to make clear what a caution is and what it is not.

Senator WHISH-WILSON: Out of respect and in deference to Senator Siewert, I will ask you some more specific questions on this in camera. You have just spoken of a 'gag' and a 'ban', about the caution itself. You made it very clear in your comments to Dr Fettke that cautions from AHPRA are not appellable. This is our understanding from the evidence we heard in Sydney. Yet in this media statement you basically say they are appellable to the board to the Supreme Court for judicial review and they can also make complaints to the national health practitioner ombudsman. I hope the committee looks at whether cautions should be appellable or not, because they are a black mark against a doctor's name, particularly ones who have longstanding reputations and do a lot of hard work for their community. How is it that on the one hand we can have evidence to the Senate that these things are not appellable—never—and Dr Fettke cannot give medical advice on dietary advice for the rest of his medical career. Yet in this media release you say:

Any medical practitioner can appeal a decision made by the board to the Supreme Court for judicial review …

Are they appellable or aren't they?

Mr Fletcher : A caution is not an appellable decision under the National Law. So under the National Law—

CHAIR: Do you mean the—

Mr Fletcher : The National Health Practitioner Regulation National Law Act.

CHAIR: Yes. That is what I was going to. I think we need to spell it out.

Mr Fletcher : Section 199 sets out the decisions of a board that are appellable. They are appellable to a tribunal—there is an independent tribunal in each state and territory—and that is effectively a merits review. A caution is not one of the decisions of a board that is subject to appeal to a tribunal. However, a caution—this is now outside of the national law—could be the subject of an appeal to the Supreme Court. That would be a judicial review, not a merits review. The National Health Practitioner Ombudsman has no jurisdiction in relation to the outcome of the regulatory process, but she does have jurisdiction in relation to reviewing the administration of that process to arrive at that outcome.

Senator WHISH-WILSON: So far all intents and purposes, Dr Fettke cannot have this decision changed or appealed?

Mr Fletcher : He could go for judicial review to the Supreme Court if he believed, for example, there were some sort of error of law in relation to the way AHPRA and the board have dealt with this matter, but he cannot go to a local tribunal for a merits review.

CHAIR: I am aware that I have a number of senators who would like to pursue some more detail that I actually think goes to the point where we need to go in camera. I am not cutting us off or going in camera yet. Given what I said earlier, we should do that. Anything we need to go in camera for we should do all at once. What I am proposing is that that matter is a matter we put to the side for when we go in camera. I will consult and just double check—do we need 20 minutes in camera or a bit longer? I am proposing we go in camera at five minutes to six. I am aware that Senator Whish-Wilson has a couple of questions that he assures me are still suitable for the current session.

Senator WHISH-WILSON: It is a vexatious issue I would like go into.

CHAIR: I realise that you have had a little bit of time now. I have a few specific general questions about release of information, and then we will go back to Senator Xenophon.

Senator WHISH-WILSON: In relation to dietary advice, my understanding is that you do not have jurisdiction over the regulation of the Dietitians Association of Australia or dietary advice. Is that correct?

Mr Fletcher : Dietitian is not a registered profession in Australia.

Senator WHISH-WILSON: So they are self-regulated. If you do not have jurisdiction over dietary advice, what I do not understand and what I think the committee do not understand is why you have conducted an investigation for 2½ years. You have gone down a very long rabbit role against a surgeon for essentially providing dietary advice to patients. Where is your jurisdiction? If you do not have it over dietitians, why are you pursuing this against a medical practitioner?

Mr Fletcher : As you can appreciate, it is difficult for me to comment on an individual matter.

Senator WHISH-WILSON: Let's just talk broadly about dietary advice.

Mr Fletcher : In general terms, we would only investigate a matter where there was a question about patient safety or public safety which may require some sort of regulatory response on the part of the board.

Senator WHISH-WILSON: It is not your fault, Mr Fletcher, but I understand the government made a decision for the dietitian area not to be regulated. We have received correspondence from the Dietitians Association of Australia in relation to evidence that Dr Fettke gave publicly. In their letter they state to us:

It was also mentioned that dietetics is not regulated under AHPRA, which is correct. Dietetics is strongly self-regulated and the fact that the profession is not part of the National Registration and Accreditation Scheme (NRAS) was a government decision. As we understand, dietetics has not been considered for registration under AHPRA due to the low risk our profession poses to patient safety …

There has been no case of patient harm in relation to Dr Fettke. The dietitians themselves are saying it is a low-risk area. Why have your time and resources been tied up for 2½ years pursuing a surgeon who has spent 30 years cutting limbs off patients because of diabetes and obesity and who wants to tackle that problem in a holistic way? Why have you gone down this rabbit hole for 2½ years?

Mr Fletcher : Again, I am going to be careful about what I say about individual matters in this hearing, except to just repeat the point that I made: an investigation is undertaken where there are a set of issues that raise questions about public safety or patient safety that may require regulatory action.

Senator WHISH-WILSON: I will ask more specific questions in camera. In relation to this issue of vexatious claims, you stated three terms in your opening statement, as Senator Xenophon has alluded to. You talked about 'rivalry', 'commerce' and 'emotion'. Dr Fettke made it clear in public evidence that the Dietitians Association are the ones that lodged a complaint against him. He has also told me that a senior dietitian at a conference told the whole conference publicly, when asked about Dr Fettke's diet, 'Don't worry; we are silencing him,' which referred to their referral to you for an investigation. How can that not be about rivalry, commerce—clearly a turf dispute—and, given the social media impact and dimension of this case, emotion? Dr Fettke has admitted he has been involved in social media, let us say, exchanges over a long period of time. How are those three things not, you say, vexatious? How can this not be a clear example of a vexatious claim against Dr Fettke?

CHAIR: I am aware of individual—

Mr Fletcher : I feel like I am repeating myself.

CHAIR: I know—hang on.

Senator WHISH-WILSON: It is frustrating.

CHAIR: Even if you feel like you cannot specifically answer that one until we go in camera, the issue is still pertinent because it may not only be an issue in this particular example that we have been talking about in terms of how you make those calls.

Mr Fletcher : As I said in my earlier comments, on all the available data and evidence, this is a very small percentage of the matters that we see. If a board came to a view that a matter essentially lacked substance, that there was no basis for the notification or complaint, it would close that notification or complaint without any further action. If the nature of the behaviour of the notifier gave rise to concern, then it would be open under the national law for a board to take own motion and to effectively investigate the conduct of that practitioner in making the notification as something that raises questions about public and patient safety.

CHAIR: With all due respect, I am none the wiser about how you make that call. I know that we have to be careful about particular cases, but perhaps we can leave that one and come back to it.

Mr Fletcher : Every notification we receive, we assess. We look at the information provided by the person who has made the notification. We often talk to the notifier to get any additional information. We would then make that information available, in most cases, to the person who is subject to the notification and seek a response from them. And then, on the basis of that information, we would make a decision about whether the notification had some basis that might require further investigation. In some cases, if it is a very serious risk, it may require immediate action on the part of the board. In other cases, it may be that as a result of the assessment the matter is closed because there is no need for further regulatory action. I looked at our data for 2015-16, prior to coming here, and in fact we close around 59 per cent of matters, following assessments. So the majority of matters do not necessarily go into investigation.

CHAIR: Fifty-nine per cent?

Mr Fletcher : Yes. Now, that does not mean there was not an issue. What it is saying is that there is not necessarily an issue that requires a regulatory action, because, as I said, it is a protective jurisdiction, and the national law requires us to do the minimum necessary to appropriately protect the public. There are also circumstances where, when the concern is raised, the practitioner themselves take steps voluntarily to address the issue and therefore there is no need for the board to take any further action.

Senator WHISH-WILSON: Mr Fletcher, perhaps you are able to answer this. In terms of the dietary advice that Dr Fettke was offering patients, and he has never denied that—he set up a business that offers dietary advice and employs dietitians; like a lot of doctors he has vertically integrated his business and provided another service—did you seek advice from the CSIRO about the low-carbohydrate diet; and did you speak to the Australian Medical Association during the investigation to seek advice on whether his advice to patients was in fact harmful?

Mr Fletcher : Again, I am not going to comment on an individual matter. It is not that I do not want to be helpful; it is just that the national law has very strict confidentiality requirements in relation to what I am able to say.

CHAIR: Okay. Thank you.

Senator XENOPHON: I know you do not want to talk about specific cases, but how do you prioritise? Let us just talk in hypothetical terms. If patients are not complaining about a medical practitioner giving advice and there is nothing improper about that advice—it might relate to dietary matters—how do you decide whether the complaint is, if not vexatious, so trivial that you do not go down that path? Presumably you have limited resources. You cannot investigate every complaint, can you?

Mr Fletcher : That is correct.

Senator XENOPHON: So let us go through this. How many complaints do you get each year involving doctors and how many of those complaints do you investigate? How do you determine whether you investigate a particular complaint or not? Again I am not referring to any specific cases—and I am not trying to be cute about this—but if patients are not complaining, a doctor is saying, 'Watch your diet because you will have adverse health outcomes. You should follow the CSIRO diet'—they are offering just some reasonable advice—and then others, who might have some commercial issues, complain about that, how do you decide whether you are going to act on that complaint compared to if there is a doctor who is saying incredibly belittling and offensive things to female medical students—basically saying that their place is in the kitchen; you may have seen the Hansard of the evidence from the Medical Students Association—or a doctor who may be putting patients' safety or their health outcomes at risk? How do you get that balance right? How many complaints do you get and how many do you actually act on?

Mr Fletcher : I will use the data from 2015-16. If we include New South Wales in the data, there were just over 10,000 complaints about registered health practitioners in 2015-16.

Senator XENOPHON: Involving 10,000 practitioners or fewer than 10,000?

Mr Fletcher : There were 10,000 notifications.

Senator XENOPHON: Involving how many practitioners?

Mr Fletcher : I could not tell you that. I would have to take that on notice.

Senator XENOPHON: You might have 20 complaints against one doctor.

Mr Fletcher : That is correct. So there were over 10,000 notifications. If you exclude New South Wales—because, as you know, we do not deal with notifications in New South Wales; they are dealt with in a separate arrangement—there were just over 6,000 notifications, 6,056 notifications, across Australia. Just over 53 per cent of those were in relation to medical practitioners, so just over half of our notifications relate to medical practitioners. That has been a pretty consistent pattern throughout the life of the national scheme. Medical practitioners represent about 16½ per cent of the registered health professionals in Australia. There are over 100,000 registered medical practitioners in a cohort of about 657,000 registered practitioners across the 14 professions.

When we receive a notification we essentially look at the information provided by the notifier and we would often talk to the notifier to see if there is any additional information. We would then provide that information to the practitioner who is subject to the notification. There are some exceptional circumstances where we may not do that—for example, if there was a police investigation underfoot and there might be questions about the action the police might be taking. We risk assess the information because we have powers under the national law for a board to take immediate action if there is a concern about immediate risk to patient safety.

Senator XENOPHON: There is a risk assessment matrix, is there?

Mr Fletcher : Yes, a risk assessment framework.

Senator XENOPHON: Is that something you can provide to the committee or is it confidential?

Mr Fletcher : Yes, we can provide information about how we risk assess.

Senator XENOPHON: Is it possible to provide us with that risk assessment before we go in camera? Is it something you can email to the committee or get someone—

Mr Fletcher : I can certainly talk you through how we assess risk.

Senator XENOPHON: Is there a document that relates to risk assessment?

Mr Fletcher : There are documents in our procedures, but I probably cannot get them to you in the next ten minutes. I can certainly talk you through the risk assessment process. A board or its committee would look at the information with reference to the relevant standards and codes. This is where the code of conduct is so important, because that is the reference point used to say that this potentially raises issues about public and patient safety related to elements of the code. Then, on the basis of that, a board may decide that there is nothing further that they need to do and they close the matter—as I said, we close the majority of matters at assessment—or they may decide to investigate further. Often that means that we may seek additional information as part of the investigation process. We also have pathways under the national law, where there are questions of impairment, to have a health assessment done of the practitioner, or, where there are concerns about performance, to have a performance assessment done of the practitioner.

Senator XENOPHON: Obesity is known to carry all sorts of health risks. Is that correct? I do not expect you to give a medical opinion, but it is common knowledge. Would you accept that having too much weight on you is not a good thing?

Mr Fletcher : Yes.

Senator XENOPHON: If a medical practitioner is advising patients to go on—not some lettuce leaf diet or whatever the hell the latest diet fashion is—just a sensible, medically accepted dietary program to reduce weight, why would you risk assess that and have all guns blazing? Have you not got better things to do?

Mr Fletcher : I do not think all guns blazing is the right characterisation. If we had a major concern about patient safety, a board would take immediate action that could see restrictions or, indeed, suspension of the practitioner occurring immediately, because of an immediate risk to public or patient safety.

Senator XENOPHON: You do take aim at particular medical practitioners, it seems, for something involving dietary advice.

Mr Fletcher : I do not believe we take aim at particular medical practitioners. What we do is look at the information. The board looks at the information in front of them and comes to a view about whether there is a question that may need regulatory action or may need further investigation, and then that process occurs. That is what happens.

Senator DUNIAM: I have some questions about the processes and individuals within the organisation. On page 20 of the document you provided to us today, under the performance assessment section it mentions that the assessments are 'carried out by one or more independent practitioners who are not board members'. Where are those individuals chosen from, and who chooses them? Is there a register of medical professionals that you refer to when you need to conduct one of these assessments, and how do you ensure there is no conflict of interest, or something like that? Is the weight on the individual who you may be asking to do the assessment to fess up to a conflict, or what do you do?

Mr Fletcher : We have a number of arrangements. We have people on a panel who are available to do assessments. One of the benefits of being a national scheme is that we can go outside a state or territory if we need to get somebody who is not directly involved with a particular practitioner. The other area where we use independent experts is getting expert opinions. Often that might require us to get somebody who has quite a specialised area of knowledge—on a medical subspecialty, for example. Again, we would often seek advice from the relevant professional college or medical college about an appropriate expert to source. When we do that we do not disclose the name of the person, but, obviously, once we are approaching an individual to do the assessment or provide the expert opinion we do disclose the name, because we then need to establish that there is no conflict of interest that may mean that they are unable to do what we need them to do.

Senator DUNIAM: All right. Thank you very much. At the last set of hearings we had where we spoke to AHPRA, I put on notice a couple of questions around how many medical practitioners are employed in the investigations team. Some answers have been provided which give us an overview of how the staff is structured. It talks about the 180 staff in the notifications division across the country, 42 with a clinical background—but it goes across nurses, midwives, psychologists, pharmacists, physiotherapists et cetera. Specifically, though, how many within that number are medical practitioners? You may need to take that on notice.

Mr Fletcher : Yes, I would need to take that on notice. But I would make the point that—

Senator DUNIAM: I know you do a lot more than this.

Mr Fletcher : as they relate to medicine, the decisions are made by state and territory boards of the national boards and their committees, and they always comprise practitioner members—medical practitioners—as well as community members.

Senator DUNIAM: My interest is very much in the investigators, the people who are looking at the information that is being presented, because they would have to have some understanding of what I would imagine—not having a medical degree or any experience in midwifery or anything like that—to be very complex. So I am particularly interested in those with a medical degree or that sort of experience.

On the selection criteria, on page 15 of 17 in the answers to questions on notice, under the section 'Qualifications and experience—required qualifications', it refers to 'relevant tertiary qualification—for example, lawyer, journalist or health practitioner'. That is obviously not an exhaustive list. In terms of a threshold, is it anything? Could you have an arts degree? I suppose you can if a journalist can be an investigator. It comes back to the question I just asked: how many of your investigators actually have a medical or nursing degree?

Mr Fletcher : What we have said is that one in four in our notifications division have some sort of health practitioner background. But what I understand you to be asking me, Senator, is to narrow that down to nursing and medicine?

Senator DUNIAM: Yes. If you could break it so within those 42 what is the breakdown by—

Mr Fletcher : What is the professional background.

Senator DUNIAM: Yes. If you could that would be very handy.

Senator WHISH-WILSON: I have one question before we go in camera. In relation to the media release you put out about Dr Fettke and the information being out there—'being reported' I think were the words you used—could you tell the committee how many FOIs Dr Fettke had applied for: starting with AHPRA before going to the ombudsman or another organisation to have some of his documents released publicly.

Mr Fletcher : How many applications he has made to us for FOI?

Senator WHISH-WILSON: Yes.

Mr Fletcher : I would have to take that on notice. I don't know how many off the top of may head. I know he has made applications and I understand that they are currently under—

Senator WHISH-WILSON: Do you think it might have been worthwhile letting people know in your media statement that he has actually tried to get some of his documents released publicly, without you saying he hasn't signed over permission, implying that he does not want them released?

Mr Fletcher : I do not think we are implying; it is a statement of fact that, unless he consents, we cannot release further information.

Senator WHISH-WILSON: But you—

CHAIR: You said one question, and you are eating into the in camera time. I think we are getting close to what we need to talk about in camera. If everybody is agreed we will go in camera.

P ublic p roceedings suspended from 17:58 to 18:32