The Patient's Right to Know

Perspective

The Patient’s Right to Know

Don Malcolmson | Australia

A B S T R A C T : Patient’s expectations have changed from being an acceptor of doctors’ orders to being an active partner in a therapeutic relationship. In Australia, General Practitioners (GPs) are the “gatekeepers” for specialists’ referrals. The Australian Health Practitioner Regulation Agency (AHPRA) maintains an online searchable register of doctors. Details displayed include registration conditions, undertakings and reprimands. Doctors who practice privately in Australia are regarded as carrying on a business covered by consumer protection legislation. Australian Consumer Law (ACL) prohibits false or misleading representations in connection with the supply of goods or services. Under the ACL, a GP’s conduct is misleading if representations about the specialist are inac-curate, or the overall impression conveyed is likely to mislead the patient. Many patients lack the time, energy or desire to seek out registration details of specialists, and rely on GP advice. A key issue for GPs is knowledge of any specialists’ registration conditions: Is there a duty on a referring practitioner to check and advise the patient of any conditions? Is there a duty on the regulating body to advise practitioners of specialists whose registration is restricted? Even though disclosure may cause distress to the practitioner, this does not mean that disclosure would be unfair. Rather, the relevant question is whether there is a legitimate public safety interest in disclosure. A balance should be struck between the rights of the individual practitioners and the public expectation of safety, competency and currency. This paper suggests that consumer laws could be used strike this balance, requiring referring physicians to inform patients about the regulatory status of the physician to whom they are being referred.

The Patient's Right to Know

In many ways, Australia has an affinity with the United States. Both are relatively young nations with pioneering traditions enhanced by settlers from many countries. They fought alongside each other in 20th and 21st Century conflicts, including the First and Second World Wars, Korea, Vietnam, and more recently, Afghanistan and Iraq. Both have benefited from waves of settle-ment and migration, which opened up both countries for mining and arable land cultivation, and migration from non-Anglo-Celtic countries has changed both countries into diverse multicultural federations with written national constitutions and a system of federal/ state government and law-making.

According to the Australian Bureau of Statistics, as of June 30, 2014, Australia, with a population of 23,425,700, had 99,379 registered medical prac-titioners.1 Comparable figures for the United States are a population of 319,151,000 and 878,194 licensed physicians respectively.2 This equates to around one medical practitioner for 236 people in Australia compared with one physician for every 363 people in the United States.

There are also similarities in medical practitioner regulation. Both countries have systems that incorporate state bodies aimed at protecting the public by ensuring that only suitably trained and qualified practitioners are registered — though in Australia, an additional level of national regulation is included. Regulation in both countries includes the publication of registers of practitioners so that important information about the registration of individual practitioners is publicly available.

In both the United States and Australia, regulators make available a variety of physician/practitioner information on their individual websites. At a minimum, United States medical board profiles include licensure status and disciplinary history, while the Australian Health Practitioners Regulation Authority’s (AHPRA) online details displayed include registration condi-tions, undertakings (known in the United States as “board actions”), and reprimands.

But is there enough information on the public register in either country to enable a member of the public to make an informed choice as to a treating practitioner? Today, many patients’ expectations have changed from being a passive acceptor of doctors’ orders to being an active partner in a therapeutic relationship.

In Australia, the general practitioner is the “gatekeeper” for referral of patients from the general practitioner to consultant colleagues. A patient cannot go directly to a specialist. This is a strong point of the Australian medical system and different from the United States, where some insurance companies require referrals to go to a specialist and others do not.

In Australia, the national regulatory scheme aims to protect the public by dealing with practitioners who may be putting the public at risk as a result of their conduct, professional performance or health. This is a statutory obligation imposed on the regulating body, the Australian Health Practitioner Health Regulation Agency (AHPRA), and must be at the forefront of all activities undertaken by the regulator and its constituent members.

Unfortunately, some practitioners with practice restric-tions occasionally slip through the regulatory net because of a breakdown in procedures that should alert both the public and other practitioners to problems.

A contemporary Australian example is that of neuro-surgeon Dr. Suresh Nair, who was apparently able to continue to practice under conditions, notwithstanding a known history of drug abuse. According to the AHPRA website, in 2005, the Medical Board of New South Wales (NSW) imposed conditions on Dr Nair’s registration that included a health condition that he must not self-administer any substance listed in Schedule 4 or Schedule 8 of the NSW Poisons List or Schedule 1 of the Drug Misuse and Trafficking Act 1985 (NSW), which are, in short, drugs that can lead to dependency or addiction.

In 2010, Dr. Nair pleaded guilty to the manslaughter of a female prostitute who he had engaged, and two counts of the supply of a prohibited drug (cocaine). The escort died during the engagement with Dr. Nair after he had supplied her with cocaine and alcohol, and then failed to arrange urgent medical treatment for her.

In 2011, Dr. Nair was convicted of the offenses in the District Court of New South Wales and sentenced to imprisonment for eight years with a non-parole period of five years. The non-parole period was subsequently reduced on appeal to four years meaning that Dr. Nair was eligible for parole in July 2014. He was subse-quently deported to his native Malaysia in August 2014.

According to local press reports, there are at least nine former patients who allege that they suffer from varying degrees of impairment after surgery performed by Dr. Nair. Some have called for an independent audit of his patient database to establish how many operations performed by Dr. Nair may have resulted in death or suspicious injury.

This case raises the question of how patients are referred by general practitioners to such specialists with imposed practicing conditions, without apparently knowing the conditions; and whether the patient would have followed through on the referral had he or she known of the conditions.

New Zealand Health Ombudsman Ron Paterson wrote in his book, “The Good Doctor: What Patients Want,”3 that medical boards are often risk averse, by which he means an aversion to organizational risk (such as the threat of judicial review by defense lawyers) rather than an aversion to patient risk. The voice of the doctor, amplified by legal representation, is usually stronger and more articulate than the voice of the patient, and it often seems that backing away from stronger regulatory measures is the safer approach. Harm to the practitioner, in the form of suspension, is immediate and quantifiable, while risk of harm to the public appears distant and uncertain.

Professor Paterson goes on to note that the greatest roadblock to change is not the patients, the doctors, or the medical regulators, but the culture of medicine itself, which influences the behavior of all of these players. Culture, sometimes defined as “the way we do things around here,” has become ubiquitous in any discussion of practitioner regulation and health systems more generally. Any management consultant engaged to review health (and other) organizations would need to focus on cultural change and how complex behavior patterns can be barriers to change initiatives. The same is true of regulatory authorities that pay insufficient heed to medical culture. As Professor Paterson argues, “Culture eats strategy for breakfast every time.”4

Medical culture is probably the most powerful influence on the way that doctors practice. It has contributed in many positive ways to the considerable advances in modern medicine. The medical miracles that patients may take for granted are derived from a remarkable culture of scientific inquiry, emphasis on teaching and learning, teamwork, audit and peer review, and commitment to patient care. Most doctors want to do the best for their patients, sometimes at the expense of a doctor’s own interests and personal needs.

However, culture can also inhibit progress. According to Professor Paterson, there is also a culture in medicine that decrees that once a doctor has been trained, he or she is competent unless proved otherwise, and that the clinician will naturally update knowledge and skills as required by a process of osmosis. Culture takes a long time to change and there is a strong resistance to rules imposed from outside the profession.5

Although a medical culture may be influential, these cases must also adhere to the law. In negligence cases alleging harm arising from health care treatment, the English case of Bolam v Friern Hospital Management Committee [1957] 2 All ER 158 is often cited. In that case, it was held that a doctor is not guilty of negligence if she or he has acted in a manner accepted as proper by a “responsible body of medical men (sic) skilled in that particular art.”

In Australia, statutory provisions in some states’ Civil Wrongs legislation6 give the Courts some discretion in this area, particularly where there was a failure to give a warning, advice or other information in relation to the risk of harm to a person. The leading common law authority in Australia on medical negligence matters is Rogers v Whitaker (1992) 175 CLR 479. In that case, the High Court of Australia held that in cases involving the provision of information or advice about the material risk inherent in the proposed treatment:

“- - the Law should recognise that a doctor has a duty to warn a patient of a material risk in the proposed treatment: a risk is material if, in the circumstances of the particular case, a reasonable person in the patient’s position, if warned of the risk, would be likely to attach significance to it or if the medical practitioner is, or should reasonably be aware that the particular patient, if warned of the risk, would be likely to attach significance to it.”7

The Court also noted that, when considering what information should be given to a particular patient, it is also useful to note that:

“- - the duty (to warn a patient) takes its precise content, in terms of the nature and detail of the information to be provided, from the needs, concerns and circumstances of the patient. A patient may have special needs or concerns, which, if known to the doctor, will indicate that special or additional information is required. In a case of that kind, the infor-mation to be provided will depend on the individual patient concerned. In other cases, where, for example, no specific enquiry is made, the duty is to provide the information that would reasonably be required by the person in the position of the patient.6

These common law statements were made in the context of warning patients of the risks associated with surgery or other treatment. But how do they stand with regard to patients being advised of practitioners who may be putting the public at risk as a result of their conduct, professional performance or health?

Sometimes the law is cited as a reason for not being able to advance reform or change. It is certainly true that privacy constraints and procedural fairness are important legal doctrines. But what happens when these doctrines operate in a way that keeps patients from being able to access registration conditions and restrictions that impede patient decision making?

I suggest another legal direction — that of Consumer Law.

As I’ve previously noted, in Australia, the general practitioner is the “gatekeeper” for referral of patients from the general practitioner to consultant colleagues. A patient cannot go directly to a special-ist. But pursuant to Divisions 3, 4, and 5 of the National Law, AHPRA maintains an online searchable register of health practitioners. Details displayed include registration conditions, undertakings and reprimands. AHPRA also circulates a monthly online newsletter that contains links to panel, tribunal and court decisions. Panel decisions are de-identified so as to comply with s232(2) of the National Law, which stipulates with regard to panels and responsible tribunals that the record is to be kept in a way that does not identify persons involved in the matter unless the decision was made by a responsible tribunal and the matter was open to the public.

In Australia, panel proceedings are not open to the public, thus only some information is available to the public — by way of de-identified online AHPRA records.

While the regulatory body operates within the statutory framework of the National Health law, that framework is not the only legal basis for the regulation of practitioners. Doctors who practice privately in Australia are regarded as carrying on a business and are subject to the provisions of con-sumer protection legislation. As previously noted, doctors are obliged by common law and professional practice obligations to provide sufficient information to ensure informed consent by patients.

S29 of the Australian Consumer Law (ACL) prohibits false or misleading representations in connection with the supply of goods or services.

Many, if not most, patients lack the time, energy or desire to seek out information about the ongoing registration of specialist medical practitioners and they rely on the advice provided by the referring practitioner.

In providing such advice, as well as providing the patient with a letter of referral to a named specialist, I suggest that it is incumbent on that referring practitio-ner, therefore, to be fully acquainted with the status of the specialist’s registration and qualifications.

In my view, both a referring and referred medical prac titioner has an obligation to advise patients of all information likely to be significant to them in determining whether or not to undergo treatment, most particularly surgical treatment. I think this includes an obligation to inform patients of any imposed limits on their or the referred practitioner’s capacity to practice medicine and in relation to the range of services offered.

From speaking with a broad range of the community, as well as with health care consumer associations and interest groups, I have no doubt that the over?whelming majority of patients would say that the fact their proposed specialist is not permitted to perform particular surgery or other specified procedures would be very significant issues to them in deciding whether to proceed with treatment at the hands of the specialist concerned. This would be the case whether the proposed specialist is under specified supervision requirements or has been suspended from practice at a particular hospital because of an investigation following a notification.

Under the ACL, the conduct of the referring practitioner will likely be considered misleading if specific represen-tations about the specialist are inaccurate, or the overall impression conveyed is likely to mislead the patient. A representation need not be verbal and may arise out of conduct. This may also apply to silence.

A key issue for referring practitioners is how they acquaint themselves about the registration status of specialists. When referring patients, how many practitioners check the publically available pro-fessional records of the referred practitioner as a matter of routine? Is this a duty or task that the ordinary skilled practitioner would be expected to undertake as part of a duty to keep up to date with the current state of professional knowledge? Even if the record is checked, is there sufficient information to enable the patient to make an informed decision as to choice of referred practitioner? Is there an implied duty of care or requirement pursuant to the ACL on a referring practitioner to check the records and advise the patient of any practice conditions?

A further question here is whether there is a duty on the referred practitioner to inform the patient before commencing a treating relationship of any imposed limits on their capacity to practice medicine and in relation to their range of services so as to enable the patient to decide whether to enter into a treating relationship. From a patient’s point of view, such information is highly relevant to any decision of choice or informed consent being taken as to the choice of practitioner and to treatment options.

Also, is there an implied duty on the regulating body to advise all registered practitioners of practitioners whose registration is subject to conditions, has been suspended or who have been the subject of concluded disciplinary action?

Is there a possibility that the public interest in prevent-ing harm to another or others may be the basis for disclosure of confidential registration information?

Even though disclosure may cause distress to the practitioner, who may prefer that the information should not be disclosed, this does not mean that disclosure would necessarily be unfair. From a doctor’s perspective, the fear is always that the public’s expectation about doctors becomes unrealistic and that the more “open” doctors are to the public, the more defensively they practice. This may make doctors more “safe” but probably less effective and has the potential to further erode the doctor-patient relationship. Nevertheless, the protection and safety of the public is paramount, and, as I said before, must be at the forefront of all activities undertaken by the regulating body and its constituent members.

The key question should be “is there a legitimate public safety interest in disclosure?” In answering this question, the interest in disclosure must be a public one and not merely a superficial inquiry interest of a possibly vindictive individual. There is a balance to be struck between the rights of the individual practitioners and the broader legitimate public expectation of safety, competency and currency.

If medical ethics and law so highly value patient autonomy and choice with regard to informed consent to medical treatment, why deprive people of the information they need to make a prior and possibly significant decision about their choice of treating specialist or any other practitioner? The generation and supply of information to the public ought to be the way in which the medical profession holds itself accountable to the public.

And finally, I believe that there is a cogent quality-improvement argument for full disclosure and publica-tion of all details, including identified panel decisions, relating to the registration and practice conditions of all practitioners. Prospective patients are likely to want to know individual instances of complaints, discipline, malpractice and even compensation payouts.

It should be easy for members of the public to search a doctor’s history and find adverse findings that are in the public domain. While locating the public register may not be difficult for patients with basic computer literacy, access to less than complete information arguably falls short of meeting “duty of care” tests.

In conclusion, using the Nair case as an example, was there a duty on the part of the regulating body to advise registered medical practitioners of conditions imposed on Dr. Nair’s practice? Should the referring GPs of the patients concerned have known, or ought to have known of any practice conditions on Dr. Nair? Are they under a duty to inquire and advise their patients appropriately?

Even if the referring GP did inquire, was there sufficient information on the public register to acquaint both the GP and the patient so as to enable an informed referral decision to be made by the patient? And was Dr. Nair under a duty to disclose his practice conditions to referred patients?

Medical boards need to become much more outward looking, providing clear information to the public about the steps being taken to promote patient safety and ensure that doctors remain competent.

Greater transparency from regulators and more rigorous recertification and competence review processes will help maintain public confidence in the medical profession and its watchdogs.9

This article was adapted from a paper delivered at the 11th International Conference on Medical Regulation, “Evaluating risk and reducing harm to patients,” convened by the International Association of Medical Regulatory Authorities and the UK General Medical Council in London on Wednesday, September 10, 2014; and to the Medical Board of Australia’s National Conference, Adelaide, Australia on Friday, May 15, 2015. ?

About the Author

Don Malcolmson is a community member of both the Australian Capital Territory Board of the Medical Board of Australia; and the Australian Medical Council’s Prevocational Standards Accreditation Committee. He is also an attorney at law in Canberra, where he practices in civil, criminal and military law.

References

1. 2013-14 Annual Report, Australian Health Practitioner Regulation Agency, Melbourne October 2014, p.53.
2. S. Medical Regulatory Trends and Actions, Federation of State Medical Boards, July 2014, p.27.
3. Paterson R. “The Good Doctor: What Patients Want,” Auck-land University Press, 2012.
4. Paterson, op cit, p.67.
5. Ibid, p.70.
6. For example, s60 of the Wrongs Act 1958 (Vic).
7. Rogers v. Whitaker (1992) 175 CLR 479 at 490 per Mason CJ, Brennan, Dawson, Toohey and McHugh JJ.
8. Rogers v. Whitaker (1992) 175 CLR 479 per Gauldron J.
9. Paterson, op cit, p.15.

US Journal of Medical Regulation Vol 101 No 3. Copyright 2015 Federation of State Medical Boards: All rights reserved.