Melbourne Law School - Theses

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    Protecting the public? An analysis of complaints and disciplinary proceedings against doctors in Australia and New Zealand
    Elkin, Katherine Jane ( 2013)
    The professional regulation of doctors is commonly justified as necessary for the protection of the public. However, the degree to which regulatory decision-making is actually consistent with public protection considerations is unclear. The impact of other influences, such as the wider public interest in ensuring an adequate supply of doctors in the workforce, is also unknown. This thesis uses empirical analyses of the complaints and disciplinary mechanisms of the Australian and New Zealand medical regulatory frameworks to explore these questions. The first empirical study is an analysis of the 485 determinations made by medical tribunals between 2000 and 2009 in the four most populous states of Australia and in New Zealand. The characteristics of the doctors involved are described, together with the characteristics of the cases. The nature of the misconduct at issue is analysed according to a new typology that is more refined than previous typologies and, for the first time, considers misconduct according to both its type and the underlying reason for that misconduct. Disciplinary sanctions imposed by the tribunals are explored in some detail, with removal from practice given special attention due to the unique role of that sanction in protecting the public. The results lead the author to question whether the potential for rehabilitation is being weighted too heavily by the tribunals, and whether this may indicate that other considerations (such as doctor supply and the doctor’s own interests) are being allowed to obscure the primary goal of public protection. The second empirical study investigates 5,323 complaints made to medical boards in Victoria and Western Australia between 2001 and 2008. Again, the characteristics of the doctors concerned are analysed, with particular attention paid to how those characteristics appear at different stages of the complaints and disciplinary process. A focus of the second study is doctor country of training, which is considered in a more nuanced way than ever before. Due to the regulatory response to doctor shortage in Australia, this doctor characteristic is of contemporary significance, including in relation to what it reveals of the tension between public protection and the wider public interest. The increased risk of complaints and disciplinary proceedings among international medical graduates suggests that more may need to be done in ensuring that the approach to the registration, support and supervision of such doctors does not expose the public to risk. The apparent association between elevated complaints risk and doctors from specific countries of training is highlighted as deserving of further study and analysis. As well as being instructive as to the priorities and operation of the complaints and disciplinary system, the knowledge gained through the empirical studies may be useful to medical boards in furthering their public protection agendas. In summary, the results indicate that the risk of being subject to complaints and/or disciplinary action is particularly elevated for doctors who: are male; specialise in obstetrics/gynaecology; psychiatry or general practice; obtained their primary medical qualification outside of Australia or New Zealand; hold general registration; and have previously come to the negative attention of the regulator. In terms of case characteristics, the first study shows that sexual misconduct, illegal or unethical prescribing, and inappropriate or inadequate treatment are the most common issues leading to disciplinary action. This increased knowledge may move regulators one step closer to being able to proactively identify of ‘at risk’ doctors and behaviours, thus allowing them to target training, support and interventions towards such doctors and concerns.