Is Australia’s medical regulatory system trapped in a protracted crisis? Speakers and participants at an oversubscribed conference in Sydney on ‘The Misdeeds of AHPRA’ (Australian Health Practitioner Regulation Agency) on May 3rd, which brought together an impressive number of health practitioners, seemed to think so. Every Australian is directly affected, either as a consumer of healthcare or as one of the 900,000 healthcare professionals. The consensus at the conference was that patient care suffered during Covid. Principles of good medical practice (non-maleficence or first do no harm, beneficence or do good, justice meaning equitable access to healthcare, individual autonomy and agency as the basis for informed patient consent) were violated. Surprisingly, or perhaps not, no one from AHPRA seemed to be present although they had been invited.
Over the course of the day, it became clear that we were in the midst of a roomful of people who had paid a price – some a small price, others a heavier price and a few the ultimate price: financial, professional and personal (strain on family, suspicions on the part of friends and colleagues, deteriorating health, toll on mental health). Yet all they had tried to do, in their opinion, was to stand up for patient safety and welfare as their primary duty of care.
Dr Yen-Yung Yap was a 43 year-old obstetrician-gynaecologist in Adelaide who died of suicide while under investigation by AHPRA in 2020, leaving behind three young children. “The ongoing harassment from AHPRA and the Medical Board will make me mentally and emotionally traumatised and professionally unable to care for my patients, and financially unable to care for our kids,” he wrote in a letter to his wife Mei-Khing Loo. Her passionate yet inspiring speech, with a call to maintain the rage against the callous regulator, merited the standing ovation it received.
In 2023, AHPRA’s own peer-reviewed study found that 20 healthcare practitioners involved in a regulatory process over the four years 2018-2021 had committed or attempted suicide or self-harm, resulting in 16 deaths. Of these, 12 were confirmed suicide and four were deemed likely suicide. According to Kara Thomas, Secretary of the Australian Medical Professionals Society, in a survey for AMPS, 82.6% of healthcare professionals said that AHPRA lacks fairness and transparency in handling complaints. More than three quarters reported unfair treatment at the hands of AHPRA because its default approach to investigating complaints is ‘guilty until proven innocent’.
Doctors at the conference voiced concerns over the judgement, consistency, proportionality, accountability and independence of AHPRA as Australia’s medical regulator. They believe its flaws and failures put at risk the integrity of Australia’s healthcare system and the medical autonomy of doctors. They are meant to protect patient safety and promote patient welfare, but destroy the doctors on whom patients rely for safe medical care. Doctors decry the adversarial stance against practitioners under investigation, the virtually unlimited scope for investigation, the silencing of practitioners and the fear-based compliance by practitioners. ‘Independence’ of the regulator in practice has been corrupted into meaning that they are not answerable to anyone else. The system allows governments to disclaim responsibility for the regulator’s decisions, washing their hands Pontius Pilate-like for the fate of doctors harmed by regulatory callousness.
Notifications to alert AHPRA and medical boards to concerns about a registered health practitioner’s performance or conduct are central to the public protection objective. However, practitioners have many concerns about the prevalence and management of ‘vexatious’ notifications that are disproportionately stressful and distressing. In the complaints-driven system, AHPRA’s KPI seems to be not patient safety and welfare, but the number of doctors taken down. Ditto transparency and independent external scrutiny. Doctors especially resent the two-tier justice which doesn’t deploy the same process and standards of evidence for complaints levelled at AHPRA and the boards. They demand moral purity of doctors, but exempt themselves from the same requirement.
A two-year review of the notifications framework by the National Health Practitioner Ombudsman Richelle McCausland on December 9th 2024 noted the tension between the function of regulators to ensure patient safety while also ensuring that practitioners “are treated fairly and not placed under undue stress”. Her report acknowledged concerns that the complaints notifications process can be vexatious and “is being ‘weaponised’ to harm practitioners”. She made 17 recommendations to better resolve the tension between patient safety concerns and practitioners’ rights to due process and their welfare.
Just four days later, on December 13th 2024, a Queensland Supreme Court judgment held that an extraordinary pandemic such as COVID-19 does not abrogate doctors’ rights to “procedural fairness before an unbiassed tribunal’ nor extend the Medical Board’s “regulatory role to include protection of government and regulatory agencies from political criticism”.
Quis custodiet ipsos custodes: who will watch the watchdogs? How to hold regulatory bodies like AHPRA accountable for their actions?
Because the conference was focused narrowly on the misdeeds of AHPRA, there was no linkage made to the broader societal and political trends that have resulted in the growth of the administrative and surveillance-cum-regulatory state. Quangos have been delegated a growing number of legislative and judicial functions that circumvent the formal machinery of government. They exercise de facto governmental powers without any responsibility for the consequences of their actions, with no clear lines of accountability and seemingly unanswerable to anyone. They have unmoored the state from its democratic anchor and disconnected it from the people. Increasingly, the state neither reflects citizen’s needs and aspirations nor responds to their concerns.
AHPRA is part of that institutional landscape. Can the broken system be fixed or must it be replaced, perhaps returning to state boards before AHPRA came into being in 2010? Doctors must unite to defend informed consent, clinical discretion and the sanctity of doctor-patient relationship. Key to the reforms will be (1) rebalancing the doctor-regulator relationship in the boardroom, on the one hand, and re-sacralising the doctor-patient relationship in the clinic, on the other, and (2) establishing a better balance between patient safety, doctors’ rights and welfare, and regulatory accountability.
Ramesh Thakur is Emeritus Professor in the Crawford School of Public Policy, Australian National University. A former UN Assistant Secretary-General, he was the principal writer of the late Secretary-General Kofi Annan’s 2002 UN reform report.
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