Under the spotlight
The Medical Council of NSW works in collaboration with the NSW Health Care Complaints Commission (HCCC) to receive and manage complaints about doctors and medical students in NSW.
The council’s paramount legal obligation is to protect the public. It deals with doctors whose conduct, performance or health may represent a risk to the public.
We do this by assessing complaints, promoting compliance with professional standards and delivering programs to ensure doctors provide safe care to their patients.
But, if a complaint is made about a practitioner, there are processes and terminology used that is foreign. 'Spotlight on' aims to provide transparency on some of these processes, procedures and terminology.
Spotlight on: Council Based Assessments
If a complaint has been made about a medical practitioner, they may receive a letter from the Medical Council requesting they participate in a council based assessment (CBA). This process involves medical peers, appointed by the council assessing the clinical concerns raised in the complaint based on a range of information, including insights from the practitioner.
Council based assessments are conducted as an interview. They can include a discussion of the doctor’s background and training, current practice, personal situation and health, plans for the future as well as a detailed discussion of the complaint and the concerns it raises. Often, a selection of the practitioner’s medical records is reviewed, and several practical scenarios are discussed with the practitioner. Wherever possible CBAs take place remotely via videoconference.
The CBA process is not disciplinary but allows the council to effectively assess some types of performance-related complaints while ensuring the practitioner is involved in discussions about the issues raised in the complaint and have the opportunity to provide their perspective and views.
The introduction of council based assessments in 2019 has helped reduce the time some doctors are waiting to have performance complaints about them resolved and a decision reached by council delegates. This is a positive step in reducing the stress on doctors who come to the attention of the council where clinical care forms the basis for the complaint.
Spotlight on: self-reflection forms
In March 2021, the Medical Council introduced the use of a Self-Reflection Form. This form asks the doctor for specific information which the council uses to consider the complaint made against them. The Nursing and Midwifery Council has successfully used a similar form for several years.
The Self-Reflection Form is designed to provide the council with further information about a doctor’s practice. Specifically, it shines a light on whether the practitioner can identify any potential changes or improvement to their overall practice as a result of the complaint, how they may address similar situations in future and if professional development may be of benefit to them.
The council sought feedback about the new process from several medical indemnity insurers and this helped improve the form. The council appreciates the value that these stakeholders added and thanks them for their input.
The council does not ask every doctor with a complaint to complete a Self-Reflection Form, but it may ask a practitioner to complete the form where their response to a complaint has been reassuring but evidence is missing. This is particularly relevant to changes to practice, engagement with others (such as employers or their medical indemnity insurer) and addressing the complaint in the context of the Good Medical Practice Guide – A Code of Conduct for Doctors in Australia, for example.
This new process enables the Medical Council to make a more informed assessment of the practitioner’s ongoing risk and whether further regulatory action is needed to protect the public.
Spotlight on: 'No Further Action' outcomes
The Medical Council is acutely aware of the stress doctors’ experience when a complaint is made about them. We recognise there is much anxiety about your future, your livelihood, your reputation and even your identity, with many doctors understandably asking lots of questions throughout the process.
A consistent focus of the council is to ensure we continually refine and tweak processes to become more timely, empathetic and transparent. It is pertinent to note that 83% of complaints result in either “no further action" or are discontinued outright.
“No further action” means that the complaint, combined with existing knowledge of the doctor did not meet the risk threshold to warrant further action. A complaint may also result in ‘no further action’ if a practitioner has reflected on their practice, acknowledged areas of concern and taken steps to improve.
If the doctor has no insight into the issue, delegates will extract the key themes of the complaint and provide the doctor with recommendations and advice on next steps. The council does not monitor this advice for compliance, but the complaint and any recommendations will remain on file to assist the council to form a holistic picture of the practitioner and pick up any potential trends should additional complaints occur in future.
Spotlight on: health assessors
Complaints to the council about doctors generally fall into one of three categories - health, performance or conduct.
When assessing a practitioner who may be impaired, the council engages a health assessor. All assessors are registered health practitioners, appointed by council, for their knowledge of a particular specialty or subspecialty. Often health assessors are psychiatrists or clinical psychologists.
Their role is to make an independent assessment about whether a doctor is impaired, the extent and nature of the practitioner's impairment and whether any impairment will impact on their ability to practise medicine safely. The health assessor will also assess whether participation in the health program is appropriate. The assessment undertaken is medico-legal rather than a therapeutic consultation.
If a doctor is deemed to be impaired, they are recommended to join the health program. The health program is constructive, non-disciplinary, and aims to work with the practitioner to ensure their health impairment is assessed and treated. This approach has an end goal of assisting the practitioner to return to work in a safe manner, for their own personal health and that of their patients.
Should a practitioner enter the health program, they will generally see the same health assessor for periodic review and oversight of progress.
The reports and recommendations prepared health assessors are used by the council to determine further action, if required. Health assessors do not have the power to make the final determination of whether conditions or suspension are applied to practitioners.
Spotlight on: Performance Review Panels (PRP)
When a performance matter is referred to the council, one possible outcome is the practitioner may be required to undergo a Performance Assessment, which in some instances can lead to a Performance Review Panel (PRP). Of nearly 2000 complaints received by the council related to performance in 2020-2021, 41 of these complaints underwent a Performance Review. Performance Review Panels are designed for a dual purpose: to remediate professional performance and to protect the public.
Panels are held with as little formality as possible and are not meant to feel like court proceedings. The Panel is usually comprised of one lay member and two medical practitioners, one of whom works in the same area of practice as the practitioner being reviewed.
If you receive notice of a PRP, it will specify the time and place of attendance, and may also specify documents you will need to bring along as supporting information. To prepare for a PRP, you can seek assistance from your medical indemnity insurer, reflect on the Performance Assessment report, and bring along documents to support any changes you have made to your practice that may have been outlined as needed in the report. You are also encouraged to rely on friends and family for support in what can feel like a confronting situation.
The hearing takes place over a full day, in which the panel members review evidence of the issues leading to the Panel. The practitioner has ample opportunity to present their perspective. The practitioner can have a support person by their side (such as a lawyer or other advisor), but the Panel must hear directly from the practitioner. The Panel then decides whether the doctor’s practice of medicine meets the standard reasonably expected of a medical practitioner with an equivalent level of training or experience.
If the Panel finds that a practitioner's professional performance is below the expected standard, it may place conditions on their registration to remediate the practitioner and to protect the public. These conditions are not punitive, and the Panel does not have the power to suspend or cancel a practitioner’s registration.
Spotlight on: Urgent action
Our paramount obligation is to protect the public and to maintain trust in the medical profession in NSW. To meet these responsibilities, the council has powers under health practitioner laws (the Health Practitioner Regulation National Law (NSW)), to act quickly if a complaint about a doctor raises serious concerns about unacceptable risk to the public.
In these instances, the council may hold an urgent action or s150 panel with a medical practitioner. Its purpose is to assess:
- whether there is an unacceptable risk to the public arising from issues which could be contained in information, in a complaint or mandatory notification about a doctor, or concerns that are otherwise in the public interest; and
- if a panel deems there is an unacceptable risk, decide what action is required to address that risk.
An urgent action panel is not disciplinary. However, if panel members decide there is a risk and that this requires urgent action to address the risk of harm, it can impose conditions on a doctor’s professional practice or suspend a doctor’s registration. This could, for example, include restricting the type of medical services a doctor can provide or mandating participation in formal supervision. In some cases, a panel may suspend a doctor, because in its assessment of risk and available protective actions, suspension is the only option that will address the risk of serious harm to the public in the future. This action is temporary whilst further investigation of the issues is carried out. The council cannot use this power to suspend or impose conditions on a practitioner permanently or make findings about the evidence.
What decisions can the panel make?
Action that the council can take includes:
- Take no urgent action
- Take no urgent action but recommend the council consider other options, such as a performance assessment or a health assessment
- Impose conditions on a doctor’s registration
- Suspend a doctor’s registration
Who sits on these panels?
Urgent action (s150) panel members include experienced medical practitioners and community members who are delegated by the council to consider the matter.
What types of matters do they deal with?
This can include a wide variety of issues such as allegations of boundary crossing, inappropriate prescribing of drugs of addiction, substandard clinical care, criminal charges, family violence and Medicare fraud.
What happens if a panel decides to impose conditions?
At the end of the process, the council will advise the doctor of the outcome and that detailed reasons will follow in a few weeks, together with information about their appeal rights and next steps. The council is required to notify the Australian Health Practitioner Regulation Authority (Ahpra) and the Medical Board of Australia of any action taken. It also advises Ahpra to publish any conditions imposed by the panel on the doctor’s registration via the online Australian register of practitioners. The council is also required by law to refer the doctor to the co-regulator, the NSW Health Care Complaints Commission (HCCC) for potential investigation and disciplinary action.
How many doctors are referred to an urgent action panel?
A small number of doctors are referred to an urgent action s150 panel each year. In the 2020/21 reporting year 219 practitioners faced this type of a panel.
Most complaints considered by the council do not involve this type of regulatory activity (see our spotlight series on other regulatory tools the council uses).
What to do if you have been referred to an urgent action panel
- Contact your medical indemnity insurer (MII) for advice and information as soon as possible. Your MII representative can attend the panel as your support person.
- Provide the written information and any documents the council requests from you promptly. This will ensure there is more time during the panel hearing to discuss the substantive concerns arising from the complaint or notification with you.
- Be honest in your responses so the panel can fairly and accurately assess any potential risk to the public.
The information provided in this article about urgent action (s150) panels is general in nature. If you require legal advice please contact your medical indemnity insurer or legal representative.
A counselling interview takes place when a complaint indicates a doctor may have departed from acceptable standards of practice. Typically, practitioners referred to a counselling interview have complaints relating to their conduct.
Some examples where practitioners have been referred to a counselling interview include:
- A complaint where a practitioner may not have given the patient privacy to undress before a physical examination (no curtain or not leaving the room)
- A complaint relating to falsifying qualifications
- A complaint that alleged the doctor was not available or contactable during their shifts.
The Council uses these interviews as a tool to confirm a practitioner is aware of acceptable standards of practice and conduct.
This interview allows hearing members the opportunity to explore the issues surrounding the complaint in depth, including establishing whether the doctor has insight into the complaint and has changed their practice since the complaint. It may also contain questions about how the doctor will handle similar situations in future.
These interviews are generally conducted by two hearing members, at least one of whom is a medical practitioner, but not necessarily from the same specialty as the doctor who is the subject of complaint. The interviews typically last for approximately 90 minutes and outcomes can vary.
Potential outcomes could be:
- The doctor is counselled, and advice is provided in relation to their future practice. This may also include the panel recommending the doctor undertakes specific professional development in relevant areas. While this is not strictly enforceable, it is not looked kindly upon should future related complaints be received.
- The panel recommends no further action is taken.
- The panel uncovers more serious issues and recommends the Council convene an urgent action panel or refer the matter to the HCCC for further investigation.
If a complaint or notification raises concerns that a doctor’s performance may be unsatisfactory, the Medical Council can refer the practitioner to a practice-based performance assessment. That decision may be based on an individual complaint or reflect a concern arising from a pattern of complaints or other issues about doctor’s performance over time. Its purpose is to give the Council a comprehensive picture of a doctor’s performance in their normal practice environment.
A practice-based performance assessment involves looking at doctor’s communication and clinical skills, clinical knowledge, clinical management and medical record keeping in situ. This usually includes 2-3 assessors visiting the practice/hospital observing a doctor consulting or performing procedures. The components of a practice – based performance assessment will vary depending on the issues or concerns that have been raised about a doctor.
Who are the assessors?
They are doctors, chosen to be assessors based on their skill, training and experience in assessing doctors. At least one assessor will be a peer familiar with the doctor’s area of practise.
Does the doctor see the assessment report?
Yes. It is important to know that assessors make recommendations to Council, for example training to support a doctor’s professional standard. The assessment report helps to inform decision-makers in relation to the concern/s that have been raised about the practitioner.
What you need to know if you are referred to one
- Get in contact with your medical indemnity insurer who can provide you support and information as soon as possible after you have been notified of a practice-based performance assessment.
If you are having a practice-based performance assessment (PBA), the assessors will access records at your premises, and you will not need to provide copies. These assessments include an element of clinical observation, and it is important the assessors observe you in your normal practice environment practising in your normal way.
- If you are a doctor who regularly performs procedures, you must ensure that on the day of your assessment you have procedures, or a list scheduled.
- If you are a non-proceduralist you must ensure that on the day of your assessment that you are seeing patients as you usually would.
Professional Standards Committee
Professional Standards Committees (PSC) are disciplinary bodies established under s.169 of the Health Practitioner Regulation National Law NSW to hear and determine complaints of unsatisfactory professional conduct against medical practitioners and nurses and midwives. These complaints are prosecuted by the Health Care Complaints Commission (HCCC). Unless a PSC directs otherwise, PSC hearings are open to the public. The National Law limits the circumstances in which a PSC may be closed to the public.
The HCCC may otherwise prosecute disciplinary complaints before the NSW Civil and Administrative Tribunal. The Tribunal may also hear more serious complaints alleging professional misconduct.
PSCs are a structured process and include preliminary directions hearings where the Chairperson will set a timetable for the parties (HCCC and the practitioner) to provide information in support of their case and to attend the substantive hearing. Parties may rely on evidence from experts and witnesses. The PSC has the power to summons witnesses and obtain documents.
The Health Professional Councils Authority (HPCA) provides administrative support to the PSC.
What is unsatisfactory professional conduct?
Unsatisfactory professional conduct is defined at s.139B and s.139C of the National law, and includes:
- conduct significantly below the standard reasonably expected,
- contravention of the National Law or regulations,
- contravention of conditions of registration or undertakings,
- failure to comply with decision or order of a Committee or the Tribunal,
- contravention of requirement under the Health Care Complaints Act 1993 (HCC Act),
- accepting a benefit for a referral or recommendation to a health service provider,
- accepting a benefit for a recommendation of a health product,
- offering a benefit for a referral or recommendation,
- failure to disclosure a financial interest in giving a referral or recommendation,
- engaging in overservicing,
- permitting an assistant, who is not a registered health practitioner, to attend, treat or perform operations on patients which require professional discretion or skill,
- other improper or unethical conduct,
- certain criminal convictions and criminal findings,
- assisting unregistered practitioners,
- failing to render urgent attention.
What powers does a PSC have?
If a PSC makes a finding of unsatisfactory professional conduct, the PSC may order one or more of the following:
- Caution or reprimand the practitioner,
- Impose conditions it considers appropriate on the practitioner’s registration,
- Order that the practitioner seek and undergo medical or psychiatric treatment or counselling (including, but not limited to, psychological counselling),
- Order that the practitioner complete an educational course specified by the Committee,
- Order that the practitioner report on the practitioner’s practice at the times, in the way and to the person specified by the Committee,
- Order that the practitioner seek and take advice, in relation to the management of the practitioner’s practice, from the person specified by the Committee.
- Close the complaint without further action
A PSC may otherwise fine a practitioner, no more than 50 penalty units. However, a fine may only be ordered where the PSC has found the practitioner guilty of unsatisfactory professional conduct, and where the PSC is satisfied that no other order, or combination of orders, are appropriate in the public interest.
If a complaint of unsatisfactory professional conduct is not proven no action can be taken in regard to that complaint.
No power to suspend or cancel a practitioner’s registration:
A PSC does not have the power to suspend or cancel a practitioner’s registration. This power is held by the Tribunal. A PSC, however, must refer a matter to the Tribunal if it has formed the opinion that the complaint, if substantiated, may provide grounds for the suspension or cancellation of the practitioner’s registration.
Who sits on a PSC?
A PSC consists of four panel members:
- Two registered health practitioners from the relevant profession,
- One Australian lawyer who is not a registered health practitioner who is appointed as the Chairperson of the PSC, and
- One lay person appointed from the shared lay person panel.
Public PSC decisions are reported on the Australasian Legal Information Institute Austlii website.
What to do if you are referred to a PSC?
It is encouraged that you:
- Read carefully the notice referring you to the PSC.
- Seek assistance from your medical indemnity insurer (MII) as soon as possible. You are entitled to be represented by an Australian Legal Practitioner, or with leave of the PSC’s Chairperson, another advisor.
- Provide any requested information and documents to the PSC in accordance with the timetable.
Disclaimer - The information provided in this article is general in nature and is not legal advice. If you require legal advice, contact your MII or legal representative.