Tide of vexatious complaints non-existent: Researchers

Those are the unexpected findings from a Melbourne University report into vexatious complaints, commissioned by the Australian Health Practitioner Regulation Agency (AHPRA), Australia’s health professional regulator.
 
Reducing, identifying and managing vexatious complaints revealed that a complaint is much more likely to be vexing – ie substantiated – than vexatious.
 
The report found less than 1% of notifications (complaints) were vexatious, using the legal sense of the word meaning an action ‘brought without sufficient grounds for winning, purely to cause annoyance to the defendant’.
 
APHRA commissioned the research in the wake of a critical 2017 Senate Affairs Reference Committee inquiry into medical complaints in Australia. The inquiry, ‘Complaints mechanism administered under the Health Practitioner Regulation National Law’, concluded that ‘practitioners and notifiers have lost confidence in the AHPRA administered process’.
 
The inquiry also found that vexatious complaints were cited as a problem by a ‘significant proportion of practitioners that submitted to the inquiry’. It was found that some complainants were abusing the system.
 
‘The complaints process could be used by practitioners to bully or harass colleagues,’ the inquiry report stated.
 
Dozens of medical practitioners told the inquiry they had been bullied by colleagues who used the complaints system maliciously. The RACGP’s submission to the inquiry focused on vexatious complaints as a matter of urgency.
 
RACGP immediate past Vice-President Dr Edwin Kruys, who made the college submission, told newsGP that the AHPRA report does not remove the need for change at the regulator.
 
‘What we really need to know is: what are the processes that will be put in place to better manage misuse of the complaints system, such as repeated unreasonable complaints against a practitioner?’ Dr Kruys said.
 
‘If AHPRA’s “first international look” at the evidence is correct, we’re talking about up to 100 vexatious complaints a year. This is a big problem because it causes high levels of stress.
 
‘The process is time-consuming for the practitioners involved and also costly because of time out of practice, as well as defence lawyers and AHPRA staff involved.
 
‘Instead of saying that the problem is small or that there is more risk in not reporting complaints, it would be good if AHPRA could come up with steps it will take to improve this vexing issue sooner rather than later.’
 
AHPRA chief executive Martin Fletcher said his organisation received more than 10,000 complaints a year, and that number continues to grow.
 
When he appeared before the Senate inquiry, Mr Fletcher said legal experts at the University of Melbourne had reviewed 850 notifications and found fewer than six were vexatious.
 
‘When a complaint is made about a health practitioner, it is not immediately obvious that it is vexatious. And in the event that it is potentially vexatious, there may still be genuine risk to patients involved,’ he said.
 
‘Our primary concern is to protect the public, so even if the intent behind a complaint is vexatious we have to make sure we manage any risk to patients.’
 
Associate Professor Marie Bismark, a co-author of the Melbourne University research, said that many people have used the word ‘vexatious’ to refer to complaints that might have simply been a miscommunication. She said the best available evidence suggests that truly vexatious complaints are very rare, and that under-reporting of well-founded concerns is likely a far greater problem.
 
Figures in AHPRA’s latest annual report show that 76% of notifications (complaints) made against medical practitioners in 2016–17 resulted in no further action.
 
According to Associate Professor Bismark, there is a common misconception that a complaint must have been vexatious if it resulted in no regulatory action.
 
‘However, a decision by a National Board not to take regulatory action does not mean that the complaint was unfounded or made in bad faith,’ she said. ‘For example, a risk to the public may have been adequately addressed between the time the complaint was made and when the investigation concluded.’
 
Mr Fletcher said his agency would use the findings to improve internal processes.
 
Complaints from patients, relatives and the public account for 50% of all complaints last year, compared to almost 13% made by other healthcare practitioners.

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