Four in five believe ‘vexatious’ complaint made against them

Four in five newsGP readers believe they have been on the receiving end of a vexatious complaint, according to a recent survey.  
 
When asked in a poll whether they felt they had been subject to such a process, 80% of 1290 respondents said they had.
 
The results come at a time when the number of complaints received by AHPRA has increased significantly, with the health regulator partly attributing the rise to an increase in patient complaints due to COVID-19.
 
The issue has also recently been put under the spotlight by RACGP Vice President Dr Bruce Willett, who recounted to newsGP how a complaint made against him after a patient became abusive due to a mask mandate took 10 months to resolve.
 
It was the first complaint that Dr Willett had received against him in a long general practice career and resulted in no further action – but he remains unclear whether the complaint would be categorised as vexatious. He told newsGP at the time that he believes the pandemic has caused misuse of the notifications system to rise. 
 
Notifications certainly have: in AHPRA’s latest annual report, the regulator recorded 1303 notifications related to the COVID-19 pandemic.
 
However, while AHPRA said that no action was taken in approximately 50% of notifications linked to COVID-19, the detail of how many were vexatious, and any change that the pandemic may have caused, is harder to establish. 
 
The issue has been a significant one for GPs long before the arrival of COVID-19, with the college consistently advocating for reform.
 
A framework to identify and deal with vexatious complaints was developed by AHPRA and launched in late 2020, driven by a 2017 Senate inquiry into complaints under the Health Practitioner Regulation National Law.
 
This included an RACGP submission highlighting the enduring impact misuse of the process can have.
 
‘A key concern of RACGP members was the apparent inability for the complaints mechanism to sufficiently vet complaints so that vexatious complaints are filtered out,’ it stated.
 
‘The complaints mechanism requires a large time commitment by a practitioner to formulate the necessary response.
 
‘Even if found innocent, the effect of the distress caused by the complaints process can remain for the practitioner.’
 
The National Health Practitioner Ombudsman (NHPO) is  reviewing the guidelines, and during the process the college has questioned their efficacy.
 
In its submission to the review, the RACGP said the framework has done little to change GPs’ concerns.
 
While AHPRA publishes figures on the number of complaints that do not result in further action in its annual report, the regulator does not state details of the number of vexatious or trivial complaints.
 
Research published by AHPRA indicated that vexatious complaints account for less than 1% of notifications, although many GPs feel the number understates the reality.
 
‘[RACGP members] advise that this does not include many frivolous claims that are not classified as vexatious, and a clear and transparent approach is needed for dealing with these,’ the college’s recent submission stated.
 
‘Concerns have also been raised about the literature review upon which the <1% figure is based, which members have described as limited.’
 
What do the MDOs say?
In an attempt to establish a clearer picture, newsGP approached three medical defence organisations (MDOs) for their sense of the issue and any changes observed in the way the notifications process is being used.
 
MDA National acknowledged a rise in the wake of the pandemic.
 
‘We have noted an increase in the number of vexatious complaints against GPs, particularly since COVID-19,’ their medico-legal team told newsGP.
 
As with all the MDOs approached, they acknowledged the personal toll – ‘including a deterioration in mental wellbeing’ – a drawn-out process can cause.
 
‘We see an opportunity for improvement in communication with practitioners being advised where AHPRA’s framework for identifying and dealing with vexatious notifications has been applied, and in what way,’ they stated.
 
‘This would provide a degree of reassurance that any concerns about the veracity of a notification had been properly considered – even if it is ultimately determined that the notification is not vexatious.’ 
 
Georgie Haysom, Avant general manager of advocacy, education and research, says improper use of the notifications process ‘continues to be an issue for doctors’.
 
‘We are concerned about the use of complaints for an inappropriate or improper purpose, where there is no public safety issue and the complaint appears to be motivated by something else,’ she told newsGP in a written statement.  ‘We have commented on this previously.’
 
Ms Haysom also acknowledged a COVID-19 effect, saying they had assisted doctors and practices with notifications linked to the pandemic.
 
‘These complaints have been upsetting and frustrating for doctors and practices who were simply adhering to public health orders or widespread peer-acceptable practice during that time,’ she said. 
 
However, Ms Haysom said in Avant’s experience, the number of vexatious or improper complaints against doctors is ‘small’. She also highlighted nuances in the understanding of the word ‘vexatious’.
 
‘The ordinary meaning of vexatious is “causing or tending to cause annoyance, frustration, or worry”,’ Ms Haysom said.
 
‘At law, the definition of “vexatious” is narrow so the threshold for a complaint or other legal action is high. The number of complaints that fall within this legal definition is likely to be very small.  
 
‘AHPRA has used a broad definition in its framework, somewhere between the legal definition and the ordinary meaning.
 
‘We are pleased to see AHPRA’s broad definition of ‘vexatious notification’ which captures the nature of these notifications in the health setting, as well as the process that seeks to explore the notifier’s intent and the broader context surrounding a complaint.’
 
For Dr Owen Bradfield, a GP and the Chief Medical Officer of the Medical Indemnity Protection Society (MIPS), the issue of whether or not a complaint is vexatious is a concern, but a secondary one.
 
He notes that that while GPs may discuss a fear of being sued ‘complaints far outnumber civil claims’.

‘In dealing with the psychological response to a notification, our members sometimes raise queries about the motivations of notifiers,’ Dr Bradfield told newsGP.

‘While it is important to bring these concerns to the attention of the regulator, we believe that our members’ interests are best served by responding, first and foremost, to the clinical or professional issues raised in a notification.’

Each MDO raised a similar point – that no matter how GPs feel about a complaint it should never be dismissed.

‘The response to complaints should always be taken seriously, no matter how trivial the complaint may seem to be,’ Ms Haysom said.

Log in below to join the conversation.

AHPRA complaints defence MDOs medical organisations vexatious