The Australian Medical System – What to Do and Who to Go to if Something goes Wrong.
In a perfect world every time we sought help from a health professional we’d be 100 per cent satisfied with how we were treated. But the world isn’t perfect, and like any provider of a service, doctors make mistakes. These mistakes can range from unprofessional behaviour to incompetence or simply a momentary lapse in judgement where the doctor makes a poor decision. It’s important not to accept poor treatment, but to make a complaint about it. This doesn’t just benefit you the consumer, it’s also in the community’s interests because it means there’s less likelihood of someone else experiencing the same problem in the future.
Health consumers have rights that guarantee them:
- a satisfactory service.
- dignity and privacy.
- adequate information.
- due skill.
- treatment in a professional manner.
- the right to redress if these measures aren’t met.
These rights are covered by codes of conduct and are backed up by legislation – for example the Medical Practice Acts in each State, the Trade Practices Act, and common laws related to personal injury. In the past, when health consumers have taken action against medial practitioners, the professional bodies and the courts tended to favour doctors rather than patients. For years there’s been a reluctance on the part of the medical profession to admit to doctors’ mistakes and act on them. Nevertheless the rise of the consumer movement over the past 20 years or so have made consumers much more aware of their rights. Making a complaint is an important way of weeding out and re-educating health providers who are unprofessional or incompetent.
The most common complaints patients make relate to:
- poor treatment – misdiagnosis, wrong or inadequate treatment.
- inadequate provision of information – for example about the diagnosis or treatment.
- inappropriate nature of the relationship (a sexual relationship for example).
- impairment of the doctor due to drugs or alcohol. A smaller number involve administrative matters like lack of access to medical records, long waiting times, rude staff and so on.
Complaint options If the doctor is employed by a medical practice or hospital, the complaint should be made there in the first instance. The doctor should be given the opportunity to respond. If you are not satisfied, or the complaint is serious enough, you can make a complaint to the health care ombudsman in your State. This is a person whose job it is to handle complaints about health care providers. Each State has one, though they go under different names. If you are in Western Australia contact the Office of Health Review; in Queensland, the Health Rights Commission, in the Northern Territory the Health and Community Services Complaints Commission, in the ACT the Health Complaints Commission, Victoria, the Health Services Commissioner, and, in New South Wales, the Health Care Complaints Commission.
You should call them and discuss the problem over the phone, and then submit the complaint in writing. If they feel the complaint is unjustified or frivolous, they may dismiss it. Otherwise, depending on the nature of the complaint they may deal with it in different ways. For example they may refer it to their dispute resolution service. This is a forum in which patients and doctors are encouraged to come together and discuss and resolve their differences. It may result in an apology from the doctor for example. In more serious cases the complaint may be referred to another regulatory body for investigation.
In cases involving professional misconduct or where there is a question mark over the skill of the health practitioner, this might be the medical board. Each State and Territory in Australia has a medical act which outlines the conditions under which medical practitioners are allow to practice. The acts are administered by State medical boards. A board may investigate a doctor via a medical tribunal or professional conduct hearing, and if found guilty, the doctor may disciplined by a fines, suspension, the imposition of conditions on practice, or deregistration.
If you feel you have been injured by a health professional you also have the option of suing that person. Under common law, a person has the right to sue a health provider for failing to exercise reasonable skill and care in their diagnosis, and treatment, and for failure to provide adequate information about their treatment. That person can seek damages for injuries. Those damages might include a sum of money to cover medical expenses (past, present and future), loss of income due to disability, expenses to cover nursing and domestic help, and an amount for the pain and suffering experienced.
The plaintiff (the person bringing the complaint) has to be able to prove that the doctor acted negligently, and that the negligence caused the injury. This can be difficult because:
- the direct link between the procedure and the damage is sometimes difficult to prove.
- to prove negligence, the plaintiff must prove the doctor breached his or her duty of care. Expert witnesses must give an opinion that what the doctor did was outside of normal acceptable practice. These experts are other doctors who may be reluctant to testify against members of their own profession. Even if they testify the conduct was normal practise, the court may still find the doctor negligent.
For the plaintiff, losing the case can be costly, because the court may order the plaintiff to pay the doctor’s court costs as well as the plaintiff’s. If the doctor loses, the costs don’t come out of the doctor’s pocket. Doctors must have professional negligence insurance (known as medical indemnity insurance) to be able to practice, and the insurance company makes the payout. Most cases don’t go to court, because both sides usually settle out of court. Those cases that do go to court (about 10 per cent) are usually the ones that the doctor’s medical insurance company thinks has a good chance of winning and will pursue to the end.
Studies have shown that a person who believes they have suffered from malpractice is much more likely to sue if they think:
- the doctor is hiding information from them.
- the doctor won’t apologise and admit they’ve made a mistake.
- nothing is being done to ensure the mistake isn’t repeated.