Martin Luther King said 'injustice anywhere is a threat to justice everywhere'. AHPRA should take note.
Acting on instructions from their political masters, apparently bypassing the subservient MBA, AHPRA will name and shame in perpetuity those found by a tribunal to have committed some form of sexual misconduct, although it is clear that AHPRA has no operational definition of what would constitute such misconduct.
While nearly nine out of 10 GPs (88%) support permanently publishing tribunal findings involving sexual misconduct in cases where there’s a corresponding criminal conviction, just three out of 10 (32%) support it in cases without a criminal conviction.
Unfortunately, there is no such distinction in the changes to the National Law set to take effect in April.
In other words, a millstone for life will be hung around the necks of those who remain not guilty of any offence under the criminal law standard of “beyond reasonable doubt”, but who have failed to convince tribunal members that the complainant’s accusations are untrue on the much weaker balance of probability standard used in civil matters.
It seems this sanction will apply whether or not the transgressing doctor has undertaken the remedial steps necessary to have all restrictions lifted, and has had them lifted.
It is both foreseeable and causal that such a millstone would encourage self-harm among some.
Research findings released in 2023 confirmed that at least 16 doctors died by suicide and four others attempted suicide while under investigation or regulatory notice by AHPRA between January 2018 and December 2021.
These findings, highlighting the severe mental health impact of AHPRA’s processes, have led to calls for significant reforms to how complaints against doctors are handled.
The latest development indicates these calls have been ignored. Are 16 deaths insufficient to prompt reform? How many more are necessary?
While the effect of sexual assault is indisputably devastating for the victim, and negotiating an adversarial court system can itself compound harms to the alleged victim, so too is a wrongful finding devastating for the accused and their families. Hence the checks and balances offered by the courts/criminal justice system.
These include proof of guilt beyond reasonable doubt, the presumption of innocence, and rules of evidence. Â
Related
All are absent from Australia’s tribunal system, which was never designed to hear criminal matters, and if alleged sexual misconduct is not a criminal matter, then what is it?
AHPRA’s tortuous, hostile investigatory processes where guilt seems assumed from the get-go, especially when combined with the encouragement of consequence-free malicious and anonymous complaints, have tipped that balance significantly against the accused.
That these factors are likely to provoke self-harm among the accused once affixed with the permanent mark of Cain is foreseeable, a consideration that may be of little interest to AHPRA, given the National Law imposes no statutory duty of care on it (although the common law duty remains).
No number of victim-blaming AHPRA-initiated reports into doctor suicides while under investigation mitigates that foreseeable risk.
This represents an extraordinary extension of AHPRA’s already well-exercised capacity to cause harm, by marking out for life a person denied the fundamental legal protections available to all others in society.
Further, it represents an invitation for intimidation and blackmail of doctors for S8 drugs, or for any other reason really. Knowing the investigatory hell and the lifelong punishment that awaits via the machinations of a system incapable of reliably distinguishing guilt from innocence, it would be a brave doctor who would resist any demands from patients threatening a complaint.
What is the justification behind AHPRA’s plans? Is it the rate of recidivism among doctors censured by a tribunal, who eventually have all conditions on their practice lifted yet go on to re-offend?
If that rate is as minuscule as I suspect it is, is the motivation rooted in the need to placate a noisy lobby group that threatens our politicians with adverse publicity and with it, lost votes?
If the former, why haven’t the MBA, AHPRA, and their political masters shared the rate behind that justification? Why place a lifelong millstone around doctors’ necks when even child abusers convicted in a real court, a group notorious for their propensity for recidivism, do not have their identities and locations revealed on a dedicated government-approved website?
What is already known of the psychologically harmful, sometimes deadly effect of AHPRA’s exercise of its powers begs the question: is the latest development conducive of action in the tort of negligence when the foreseeable outcome occurs?
In common law, negligence requires proof of several key elements:
- Duty of care: The prosecution must prove the accused owed a legal duty of care to the victim and the duty was breached;
- Foreseeable risk: A reasonable person in the accused’s position would have foreseen a real risk of death or serious injury and have taken steps to avoid it;
- The breach caused the harm.
Negligent homicide apart, the tort of negligence is a civil/common law matter heard in a court and while it applies the same standard of proof as a tribunal to such matters. However, a court observes rules of evidence and the other protections that brings, although there are specific exceptions in civil matters.
Courts generally won’t find negligence for high-level policy decisions by public authorities but may for negligent “operational” execution.
For example, the tort of misfeasance in public office occurs where a public officer acts maliciously, or with reckless indifference, or acts outside their power. It is hard to prove but not impossible, as the case of Kitchen vs Quinlivan demonstrates.
A case of alleged negligent homicide is usually prosecuted as manslaughter by criminal negligence (or involuntary manslaughter). This charge can be raised where a death occurs due to a reckless breach of a duty of care, but where there is no intention to kill. It is tried as a criminal matter in a court with appropriate standards of proof and proper rules of evidence. Conviction carries severe penalties. 
It should be obvious to readers of my articles that in my lay opinion, AHPRA’s involvement in the 16 known suicides and especially any subsequent ones may satisfy those criteria.
The advantage of action based on misfeasance or negligent homicide is that it holds the decisionmaker(s) personably liable, and not some bloated dysfunctional organisation like AHPRA that can hide behind “reform” that is anything but.
I wonder whether our medical defence insurers have considered the prospects of action for misfeasance and/or criminal negligence against AHPRA’s functionaries?
After all, AHPRA has lied repeatedly to Senate inquiries, has tampered with evidence before a Tribunal hearing to “improve” their prosecutorial case, observes no perceptible duty of care, and is perceived to conduct biased investigations under the presumption of guilt.
If all of that doesn’t suggest malicious intent, reckless indifference and action outside power, what does?
If our defence insurers have not sought such advice from senior counsel then who, other than AHPRA are they protecting?
Dr Michael Gliksman is a physician in private practice in Sydney and a past vice-president and chair of Council of the AMA (NSW), and a past federal AMA councillor. He has never been the subject of a patient complaint to any regulatory body.    
