False whistleblowing and the health profession

A recent case of alleged false whistleblowing in a Northern NSW hospital raises series questions about the approach to justice by the health profession regulator AHPRA and health service authorities, writes Dr Leong Ng.

NSW HEALTH MINISTER Jillian Skinner had a feisty reputation whilst in Opposition and, when her party took control of NSW, she was hailed as a chief spear thrower. Since then, Ms Skinner has kept very silent, only answering questions when necessary.

Mysterious silence is not only assent or consent but could also be dissent and dysfunction.

In more recent times, Shadow Health Minister Dr Andrew MacDonald, himself a paediatrician, threw his spear across the bows and asked Ms Skinner three questions on notice in Parliament. These were [not yet available in Hansard as accessed on 6 Dec 2014] and quoting the Northern Star report.

1. Has the Minister, her office, or the Ministry of Health been made aware of the standing down of a senior clinician from Lismore Base Hospital in January 2013? 

2. On what date or dates did the Board of the Northern New South Wales Local Health District discuss the standing down of a senior clinician at Lismore Base Hospital in 2013? 

a. What conclusion was reached at these board meetings? 

b. Were the minutes of these board meetings made available to affected parties? 

3.  Has the Minister, her office, or the Ministry of Health received or been made aware of a petition of 84 senior clinicians requesting the resignation of the chief executive of the Northern New South Wales Local Health District in May 2013? 

a. If so, what response was given to the petition? 

The 2013 hushed matter in the Northern Star about a group of 84 senior medical doctors in Lismore petitioning the NSW health minister to remove the CEO of the North Coast Area Health Service raises yet another red flag in Australia’s dysfunctional healthcare landscape.

84 clinicians call for Northern Rivers health boss to quit http://t.co/cg0zesyRFA

— Dave Donovan (@davrosz)

December 7, 2014

The hushed information issue alludes to alleged pseudo or false whistleblowing in relation to false mandatory reporting of health care professionals to the regulator, the Australian Health Practitioners Regulatory Agency (AHPRA).

False whistleblowing is form of covert bullying, career destruction, and can even be a way of diverting focus on a corrupt act and their equally false or malicious, corrupt management.

In SA, reports of bullying being rife in a top teaching hospital have surfaced with a looming dispute with the health minister. Healthcare workplace bullying issues have also emerged in the nation’s capital, whilst in NSW, the full 2008 Garling Report with transcripts has now been buried with only a summary available. An encouraging article was also published in The Guardian on the ‘after-life of the whistle-blower’— one would guess, the ‘good’ or true whistle blower.

The immediate questions are how many senior clinicians have been stood down and run out of town by Mr Crawford and his managers – and, for what reason, using what processes.

This piece is therefore written in the public interest.

The premise of the mandatory reporting policy is that a registrant is deemed to be acting unprofessionally if the witnessing of an alleged unprofessional action by another is not reported to the regulator.

The standard may be discretionary, low and allowing many variables — as long as there is ‘reasonable belief’. It would be interesting to ask Mr Crawford’s office about the manner of his administrative decisions to stand down based on notifications (that is, complaints), mandatory or otherwise.

Is ‘reasonable belief’ similar to ‘unreasonable doubt’?

But is reasonable belief the obverse of ‘unreasonable doubt’?

By convention, in criminal matters, if a prosecutor (not administrator) can prove that an allegation is ‘beyond all reasonable doubt’ then, there is a conviction — if not, the accused goes free. But does that mean that if an allegation is proven “beyond all reasonable belief” (unreasonable doubt) then there is an exoneration and that anything short means the accused is guilty?

Managers have not learned from what was played out in the Lindy Chamberlain case.

A search in the Australian Law Reform Commission website records no working definition but in an English precedent in relation to whistleblowing in employment law, “reasonable belief” is sufficient. But it is known that the doctrine of reasonable belief has enjoyed a long existence in police work, but is not strictly enshrined in law — only in judgement precedents as spelt out in guidance by AHPRA.

Can the same argument thus be applied to reasonable belief in Australian health regulation law?

In the legal systems of countries with a British derived legal system, a person is deemed innocent till proven guilty. However, if one follows the logic and practice of AHPRA (and some arresting police officers), if the accused – who, in reality is forced to provide the proof during investigation (“in defence”) – cannot prove beyond all reasonable belief that he/she is innocent, then she or he is guilty.

Will false flag whistle blowers therefore thrive when doing business with AHPRA and various health services entities?

The outcome of the early awaited questions in Parliament about Mr Crawford’s conduct and their legal implications could shed light on what happens next.

Disclosure: Three weeks after he disclosed to management that he had been cooperating with initial enquiries by Medicare on alleged double dipping in a public hospital scenario, the author was formally suspended from duties on an allegedly inflated internal risk rating by Mr C Crawford. ICAC had been contacted by the author from the beginning, at the instigation of AMA NSW (and Australian Salaried Medical Officers’ Federation NSW), which were also extensively consulted.  This was whilst he was in post as a fully salaried Level 1 Staff Physician in Oncology at the Tweed Hospital, NSW on a 457 Visa. By mandatory NSW Health policy he was reported to the NSW Medical Board by Mr C Crawford in Aug 2006. In November 2006, following escalating dispute after an unsuccessful internal ‘investigation’ to prosecute, Mr Crawford formally sent the Investigative Report to the NSW Medical Board, which consulted with the Health Care Complaints Commission. The flawed findings were referred to the Performance Committee of the NSW Medical Board for further management. No further action was taken and the author was refused a Certificate of Good Standing. Independent private review and discovery (including a subpoena of documents for Industrial Court proceedings) surreptitiously revealed misinformation embedded by the Royal Australasian College of Physicians in the NSW Medical Board Registration files. Further, the President of the NSW Medical Board was the statutory RACP representative. Also, allegedly fraudulent claims, later affirmed by statutory declarations by patients whose initials and histories were used by the Tweed Hospital in complaints were discovered. The author in an application, used the evidence for Judicial Review of the NSW Medical Board’s inaction.  This resulted in the Board formally rescinding their ‘findings’ during the initial Directions Hearing. ‘Findings’ had been made arbitrarily during Performance Committee meetings without proper inquiry and left “undisturbed” for 27 months. With lawyers having entered the equation, the author was faced with challenges in pursuing his livelihood. The matter remains unresolved till today with alleged continued concealment by various parties but with a recent published submission in a NSW Parliamentary Inquiry.

In the concluding part of this two part series, a recent professional publication raises the spectre of unconscionable conduct and sham peer reviews  past and present in regulation of the health professions.

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