Overview:

• Wrongful birth claims can include the negligent performance of a sterilisation operation or the failure to warn of the risks of failure of sterilisation procedures.
• Economic loss arising from the costs associated with raising a healthy child born as a result of a failed sterilisation procedure cannot be claimed in Queensland and New South Wales. 
• Lee (a pseudonym) v Dhupar [2020] NSWDC 717 found that the defendant was negligent in applying the Filshie clip to the plaintiff’s left fallopian tube, allowing the plaintiff to claim damages for economic loss after she sustained a psychiatric injury from the negligent sterilisation procedure.

As mentioned in our previous article, wrongful birth refers to a claim brought by the parents following negligent advice or treatment which deprives them of the choice of avoiding conception or the choice of terminating the pregnancy. Sterilisation procedures, including vasectomy and tubal ligation, have the potential to fail. However, these procedures have been reported to have a failure rate of <1%.[1] 

How Can I Claim Compensation From A Failed Sterilisation?  

To specifically claim compensation for injuries resulting from failed sterilisation, you will need to prove that the health professional performing the sterilisation procedure was negligent and that this negligence has resulted in an injury. Examples of these claims include the negligent performance of a sterilisation operation (failed vasectomy or tubal ligation) or the failure to warn of the risks of failed sterilisation procedures to prevent conception. 

In Queensland, the court cannot award damages for economic loss arising from the costs associated with rearing or maintaining a healthy child which is born as a result of failed sterilisation procedures, failed contraceptive procedures or contraceptive advice.[2] However, a claim may be brought to cover costs up to and including the birth such as antenatal, obstetric and labour care or pain and suffering the negligence has caused.

Case Example

The case, Lee (a pseudonym) v Dhupar [2020] NSWDC 717, highlights how a woman was awarded compensation following a failed sterilisation procedure. In this case, a surgical error was made during a tubal ligation, which resulted in an unplanned pregnancy. The plaintiff consulted the defendant in May 2014 with the view of having an elective tubal ligation to prevent future pregnancies. The plaintiff and her husband already had three children, and the plaintiff planned to commence full-time work. The defendant performed a tubal ligation in August 2014; however, the plaintiff found out she was pregnant in July 2015.

The plaintiff’s fourth child was delivered via caesarean section, and the plaintiff alleged the birth of the child had significantly impacted her emotional wellbeing and capacity to work. The District Court of New South Wales found that the defendant negligently failed to take reasonable precautions and breached their duty of care when applying the Filshie clip to the plaintiff’s left fallopian tube during the surgical procedure. 

It was found that the defendant applied the left clip significantly more lateral and around 2.9cm away from the manufacturer’s recommended position and the position endorsed by the Royal Australian and New Zealand College of Obstetricians and Gynaecologists. Therefore, the Court found that the defendant’s positioning of the clip meant she was unable to demonstrate that the left Filshie clip was applied in a manner which would be widely accepted by professional peers in the reproductive medicine field as competent. 

No claim was made by the plaintiff for the costs of raising the child, presumably because the child born was not suffering from a disability. In both New South Wales and Queensland, the law limits parents' ability to claim for damages such as the economic loss incurred for raising a child if the child is born healthy and without a disability.[3] However, in this case, the Court found that the plaintiff had suffered economic loss because she was unable to work due to her psychiatric injury that arose from the failed sterilisation procedure, and she was entitled to recover damages. The plaintiff was awarded $408,700.00 in damages. 

The respondent appealed the decision, however, the Court of Appeal dismissed the appeal, finding that the plaintiff’s pregnancy was the result of “operator error” when applying the Filshie clip to the left fallopian tube during the sterilisation procedure.[4]

[1] Shilpa Vishwas Date, Jyoti Rokade, Vidya Mule, and Shreedher Dandapannavar, ‘Female sterilisation failure: Review over a decade and its clinicopathological correlation’ (2014) 4(2) International Journal of Applied and Basic Medical Research 81 – 85; Nivedita Bhatta Dhar and J. Stephen Jones, ‘Vasectomy: A simple snip?’ (2007) 23(1) Indian Journal of Urology 6 – 8.

[2] Civil Liability Act 2003 (Qld) s 49B.

[3] Civil Liability Act 2002 (NSW) s 71; Civil Liability Act 2003 (Qld) s 49A – 49B. 

[4] Duphur v Lee [2022] NSWCA 15.

Overview:

• What is a wrongful birth claim?
• What compensation can be claimed?
• what other actions can arise from a wrongful birth?
• what should you do if you think you're entitled to compensation?

In Queensland, New South Wales and South Australia, a parent can claim compensation for the reasonable costs associated with a child’s disability if that child has been wrongfully born due to negligence. This is what is known as a “wrongful birth” claim.

What is a wrongful birth claim?  

A wrongful birth can arise in the following situations:

• Failed Sterilisation:  Where a medical practitioner has negligently performed a sterilisation procedure. Such as tubal ligation or vasectomy, resulting in that parent unknowingly still being able to conceive; 
• Failed Contraception: Where a medical practitioner has been negligent when implementing contraception methods. Such as incorrect placement of an IUD or providing the wrong advice concerning oral contraceptives; or
• Failure to diagnose in-utero abnormality: Where the parents would have terminated that pregnancy if they had been made aware of the in-utero abnormality.

In Australia, a child cannot bring a claim for wrongful life. The cause of action lies with the parents of the child, and in New South Wales, Queensland and South Australia, only the additional costs of raising a wrongful birth child with disabilities is compensable.

What damages are awarded in a wrongful birth claim?

In Queensland, s49A and s49B of the Civil Liability Act 2003 outlines that economic loss associated with the costs ordinarily attributed to the rearing and maintaining of a child cannot be claimed. This limits the damages that can be claimed in a wrongful birth claim to the additional costs of caring, rearing, feeding, clothing and educating a disabled child.

This means that if a healthy child is wrongfully born (e.g. conceived due to a negligent sterilisation procedure, however, born healthy), a wrongful birth claim cannot be made in Queensland. This is based on the notion that the birth of a healthy child is not considered to be “an injury”, and consequently, damages cannot arise.  

Therefore, in Queensland, an entitlement to compensation from wrongful birth only arises where a disabled child is born. Similar legislation exists in New South Wales and South Australia.

In other jurisdictions, such as Victoria, Western Australia, Tasmania and the territories, the common law still applies (Cattanach v Melchior (2003) 215 CLR 1). Therefore, no such restriction exists with respect to the compensation that may be awarded to a parent of a wrongful birth child.

What is a nervous shock claim arising from wrongful birth?

In addition to claiming compensation associated with the wrongful birth of a child, a parent may be entitled to a claim for nervous shock. 

Compensation for nervous shock damages is separate from the damages that can be claimed by the parent(s) for rearing a wrongful birth child. To be entitled to compensation for nervous shock, a claimant must suffer a recognised psychiatric illness as a direct result of witnessing the incident (i.e. the wrongful birth), which must be assessed and diagnosed by an independent psychiatrist. 

The compensation that may be awarded in a nervous shock claim falls under the following heads of damage:

• General damages/non-economic loss;
• Economic loss; 
• Medical treatment and out of pocket expenses; and
• Care & assistance. 

For further information on these heads of damage, see our previous article here.  

What to do if you believe you may be entitled to compensation for a wrongful birth incident? 

You only have three years from the date of negligence to bring a personal injury claim in Queensland. If you believe you may be entitled to compensation for a wrongful birth incident, contact our office for a free initial discussion here.  

Overview:

• What is a Misdiagnosis?
• What is a Delayed Diagnosis?
• Delayed Diagnosis and Medical Negligence
• Delayed Diagnosis of Cancer
•  What do you do if you’ve been Misdiagnosed?

What is a misdiagnosis?

If a medical professional fails to diagnose a medical condition, it is referred to as a misdiagnosis. This can occur if the wrong condition is diagnosed, or, if a doctor fails to diagnose any condition at all.

what is a delayed diagnosis?

A delayed diagnosis can occur if a medical professional fails to:

• Refer a patient for appropriate investigation;
• Take a patient’s medical history; or
• Correctly diagnose an illness.

This results in a delay in the diagnosis of a condition, illness or disease.

A delayed diagnosis of any of the following could result in a worse outcome for a patient:

• Cancer;
• Heart attack;
• Stroke;
• Deep Vein Thrombosis (DVT); or
• Mental illness.

A real-life example of this is skin cancer. A mole could be originally diagnosed as benign (non-cancerous). If left untreated, this could result in serious injury and illness and even death.

delayed diagnosis and medical negligence

A delayed diagnosis could be considered medical negligence if there is a significant difference between the treatment received and the outcome if the condition had been diagnosed at an earlier stage.

The delay in diagnosis must cause a worse clinical outcome for the patient.

delayed diagnosis of cancer

A delayed diagnosis of cancer can result in a longer illness, more aggressive treatment, or even death.

A 2016 case, Freestone v Murrumbidgee Local Health District[1], is an example of a successful medical negligence claim for delayed diagnosis of cancer.

The Plaintiff was admitted to Wagga Wagga base hospital in January 2004 with abdominal pain. They underwent a CT Scan of their abdomen, but no further investigation was done at the time by the Hospital. The Plaintiff was discharged home.

The Plaintiff was 19 years old at the time of the incident and had a history of Non-Hodgkin’s lymphoma, which she had previously received treatment for.

In 2008, the Plaintiff had another CT Scan. This scan reported a large lesion on the left kidney that was later diagnosed as a nephroblastoma, or ‘Wilm’s tumour’. It was found that the defendant, through its employees, was negligent as they failed to identify and report the mass in 2004.

The failure to report the mass meant that the Plaintiff needed to have their kidney removed, chemotherapy and radiotherapy. The delayed diagnosis caused the Plaintiff to suffer more invasive and prolonged treatment, as well as a psychiatric injury. 

The Plaintiff was awarded $609,939.50 in damages:

• Non-economic loss $136,500.00;
• Past income loss and superannuation $78,144.00;
• Future income loss and superannuation $250,000.00;
• Past Care $65,295.50;
• Future Care $50,000.00;
• Past out of pocket expenses $5,000.00;
• Future out of pocket expenses $25,000.00.

It is important to be diagnosed appropriately to ensure that life-threatening illnesses are treated early. Early identification and treatment are paramount to survival.

What do you do if you’ve been misdiagnosed?

When communicating with your medical professionals:

• Communicate any concerns about your treatment;
• Ask questions to understand your diagnosis; and
• If you have concerns, you should seek a second medical opinion.

Summary

If you have concerns about the treatment you or a loved one have received, you can lodge a complaint with the Office of the Health Ombudsman.

  [1] [2016] NSWDC 53.

In our previous article, we explained a failure to diagnose and delayed diagnosis in medical negligence cases.

Overview:

• A failure to diagnose is when a condition or injury that is apparent is not recognised by the medical practitioner/health care provider;
• A delayed diagnosis is when the medical practitioner/health care provider does not diagnose the condition or injury within an appropriate time frame; and,
• The failure to diagnose / delayed diagnosis has caused the injured person to suffer further injury loss and damage.
  

 So, what happens next?

Damages in failure to diagnose and delayed diagnosis

If the injured person is successful in establishing breach and causation, then they will be entitled to compensation for their injury, loss and damage.

Compensation is assessed under heads of damage, with the four most common heads of damage being:

1. General damages / non-economic loss
2. Economic loss
3. Medical treatment and out of pocket expenses
4. Care and assistance

Damages are calculated differently in each state and territory in Australia. You can read more about how damages are calculated here.

Interestingly, there is not a significant amount of case law identifying the damages awarded in medical negligence matters. This is because many medical negligence matters settle outside of Court by way of alternative dispute resolution, which simply means by way of negotiation, with or without the assistance of a mediator.

There are significant benefits to settling outside of Court for both a Plaintiff and Defendant, making this the most common way for medical negligence matters to resolve.

That being said, we have summarised some of the available case law setting out damages in failure to diagnose and delayed diagnosis matters.

Jacqueline Lee Freestone -v- Murrumbidgee Local Health District [2016] NSWDC 53

The matter of Freestone involved a delayed diagnosis of a kidney lesion on an abdominal CT scan.

As a result of this failure, the diagnosis was not made until some four years later, at which point the Plaintiff required extensive treatment.

It was accepted that the delay in diagnosis affected the prospects of recovery. However, the Plaintiff failed on a number of other points of causation.

Nevertheless, the Plaintiff was awarded $609,939.50 in damages.

Panagoulias -v- The East Metropolitan Health Service [2017] WADC 118

The matter of Panagoulias involved a delayed diagnosis of bacterial meningitis, which caused severe neurological and physical injury.

As a consequence of the injuries and disabilities sustained, the Plaintiff required ongoing accommodation and care for the remainder of their life.

The Court awarded $4,987,188.00 in damages.

Elysee -v- Hassan [2018] NSWDC 137

The matter of Elysee involved a failure to monitor the Plaintiff’s renal function in circumstances where he had a history of hypertension and diabetes. As such, the condition was undiagnosed and the Plaintiff was not referred for the required treatment.

As a consequence, the Plaintiff’s renal function deteriorated significantly to the point that he would likely require dialysis.

Interestingly a 10% reduction of the award of damages was made to account for contributory negligence. * 

The Court awarded $209,700.00 in damages after a reduction of 10% for contributory negligence.

*Contributory negligence occurs when the Plaintiff fails to take reasonable care of their own safety, which contributes to the harm. If a Plaintiff is found to be contributory negligent, this will result in a reduction of the award reflective of the extent that person is found to have contributed to their injury, loss, and damage. 

Nouri -v- Australian Capital Territory [2020] ACTCA1

The matter of Nouri involved the birth of a child with severe disabilities and the lost opportunity to terminate the pregnancy.

The Plaintiff’s in this matter argued that the hospital withheld information about their child’s condition. Had such information been disclosed to the Plaintiff’s they would have terminated the pregnancy.

Unfortunately, this case was unsuccessful as the Plaintiffs were unable to prove causation, that being that they would have been able to obtain a termination in the late stages of pregnancy.

However, the Court notionally assessed damages at $1,813,807.00 in relation to the costs of raising a child with disabilities.

Conclusion

As can be seen from the above cases, damages in failure to diagnose and delayed diagnosis matters range significant on the basis of the injury, loss, and damage sustained, the jurisdiction the claim is in, and whether there is a reduction for contributory negligence.

If you have suffered injury, loss and damage due to a medical negligence incident, you should consult a medical negligence solicitor to discuss your rights and entitlements to compensation.

Overview:

• Failure to diagnose refers to a health professional or hospital failing to diagnose the patient’s condition or injury.
• Delayed diagnosis refers to a health professional or hospital failing to investigate the patient’s illness in a timely manner which has led to complications outside of the diagnosis itself.
• Examples of delayed diagnosis/misdiagnosis include failing to make a diagnosis generally, failing to detect early signs of illness, or failing to provide a referral for further testing or to a specialist.

As a patient, you rely on your medical practitioner or hospital service to diagnose you correctly and within a timely manner. Suppose your medical condition or illness has been misdiagnosed or you have suffered a delay in being diagnosed by an Australian health practitioner e.g. GP or Health service or a Hospital. In that case, you may be entitled to claim compensation if you have suffered an injury, loss, and damage as a result of that failure to diagnose or delay in diagnosis.

Failure to diagnose 

Failure to diagnose situations may involve the patient suffering from a condition or injury and attending a healthcare provider or hospital multiple times. However, the medical practitioner fails to diagnose the patient’s condition or injury. 

Another situation where a failure to diagnose may occur is in a trauma setting, where the patient attends a hospital with an injury (such as a fracture). If the hospital staff fail to organise appropriate tests and investigations (for example, an X-ray or CT scan) for the patient, they cannot properly diagnose the injury. In this situation, the patient may then be discharged without a diagnosis or treatment plan, causing further injury to the patient.

Delayed diagnosis

A delayed diagnosis can include failing to investigate certain illnesses such as cancer, sepsis, or infection, in a prompt manner. This can cause the patient to have a longer recovery time, reduced life expectancy, or a terminal outcome.

Usually, in these circumstances, had a diagnosis been made at the earliest opportunity, the patient could have been treated and received a much better clinical outcome.

Failure to diagnose/delayed diagnosis examples include: 

• Failure to make a diagnosis;
• Failure to detect injury on medical imaging e.g. x-ray or MRI;
• Failure to detect the early signs of illness e.g. cancer, heart attack, or stroke; or
• Failure to refer you for further testing or specialist opinion.

To bring a claim for misdiagnosis, delayed diagnosis, or failure to diagnose, you must be able to establish: 

1. The health provider did not exercise reasonable skill or care in making a diagnosis that would have been expected by a competent health professional in their position. This may include consideration of whether the medical practitioner has taken a detailed patient history or referred you to other health professionals for follow-up tests and investigations. For example, blood tests, scans or ultrasounds.
2. The misdiagnosis or failure to diagnose has caused a further injury that is over and above the condition already suffered. A claim will be unsuccessful if you are only suffering from the diagnosed illness or condition or if your additional symptoms have resolved.

What compensation may be awarded if you can establish you have suffered misdiagnosis, delayed diagnosis, or failure to diagnose? 

Compensation will never be able to restore an injured person to their pre-injury condition. However, it aims to compensate for the loss you have suffered, including economic and non-economic loss, treatment expenses, and care requirements.

For more information on the damages available in medical negligence claims, see our previous article here.

Compensation may include but is not limited to:

• Past and future medical expenses;
• Past and future loss of income;
• Care services both professional or family and friends; and
• Loss of enjoyment of life.

What do you do if you think you have suffered misdiagnosis or delayed diagnosis?

• Communicate your concerns to your medical practitioner or go to your local hospital;
• Ask questions about your diagnosis;
• Ask if any additional tests or investigations are needed for your illness or condition;  
• Ask if there are any other possible diagnoses that would explain your symptoms;
• Seek a second opinion from another health professional; or
• Make a formal complaint to the Office of the Health Ombudsman outlining your concerns.

Summary: 

You may be entitled to compensation if a health professional has failed to recognise your symptoms or condition and you are subsequently suffering an additional injury.

OVERVIEW:

• Role of AHPRA in regulating doctors and health care providers
• Significance of a doctor making an undertaking to AHRPA
• Significance of a doctor having restrictions or conditions on their registration

role of AHPRA in regulating doctors and health practitioners

The Australian Health Practitioner Regulation Agency (AHPRA) is a national board that regulates all registered doctors and health practitioners in Australia.[1]

One of the key roles of AHPRA is to manage and monitor the registration of doctors and health practitioners.

AHPRA plays a role in managing complaints about doctors and health practitioners to ensure safety of patients and protect the public.[2]

significance of a doctor making an undertaking to ahpra

If a complaint or concern about a doctor is reported to AHPRA, the doctor may voluntarily offer to limit their practice in some way. AHPRA will accept an undertaking from a doctor if they believe it to be necessary to protect the public.[3]

For example, if a complaint was made that a psychologist pursued an inappropriate personal relationship with a female patient, the psychologist may make an undertaking with AHPRA not to treat female patients.

A doctor has a legal obligation to adhere to any undertaking they have made to AHPRA.[4]

Some other examples of undertaking doctors might make to AHPRA include: 

• an undertaking not to practise;
• an undertaking not to perform a certain kind of treatment or surgery;
• an undertaking to refrain from treating certain patients.

Significance of a doctor having restrictions or conditions on their registration

If a complaint or concern about a doctor is reported, AHPRA may impose a condition or restriction on a doctor’s registration. This will mean the doctor must do something or must refrain from doing something.[5]

AHPRA may impose a restriction or condition on a doctor’s registration pending an investigation of a complaint or upon conclusion of an investigation. However, it is important to note that a condition or restriction may be made for reasons other than disciplinary proceedings.

Unlike undertakings (which are voluntary), AHPRA may impose a restriction or condition on a doctor’s registration with or without their consent.[6]

Some examples of restrictions or conditions AHPRA may impose on a doctor’s registration to practice: 

• to only provide treatment under the supervision of another doctor;
• to undergo further education or training;
• to refrain from providing certain kinds of treatment;
• not to treat certain kinds of patients.

HOW TO CHECK IF A DOCTOR HAS MADE AN UNDERTAKING TO AHPRA OR HAS RESTRICTIONS ON THEIR REGISTRATION

AHPRA publishes an online registry of all registered doctors and health care providers.

This registry allows anyone to search a registered practitioner’s name and see details of their registration status, including whether they are subject to any undertakings or restrictions.

To look up a doctor or health care provider in the AHPRA registry, please see click here. 

To view the list of doctors and health care providers who have undertaken not to practise, please click here. 

For tips on how to use the AHPRA registry, please click here. 

Please note that the AHPRA registry only contains information regarding registered health care providers. That is, the AHPRA registry will not include persons who provide therapeutic services but are not registered health care providers. For example, some massage therapists or alternative medicine/healthcare providers may not be registered with AHPRA.

To find more information on the role of AHPRA, we recommend reading our other articles, when does AHPRA take action? and AHPRA Reporting 2020/2021: Review of Stats & Complaints Over the Last Year Identified by Specialty.

 [1] AHPRA, ‘Who We Are’ (07/02/2022) <https://www.ahpra.gov.au/About-Ahpra/Who-We-Are.aspx>

[2] AHPRA, ‘What We Do’ (10/03/2021) <https://www.ahpra.gov.au/About-Ahpra/What-We-Do.aspx>

[3] AHPRA, ‘How We Manage Concerns: Possible Outcomes’ (26/11/2020) <https://www.ahpra.gov.au/Notifications/How-we-manage-concerns/possible-outcomes.aspx>

[4] AHPRA, ‘How We Manage Concerns: Possible Outcomes’ (26/11/2020) <https://www.ahpra.gov.au/Notifications/How-we-manage-concerns/possible-outcomes.aspx>

[5] AHPRA, ‘How We Manage Concerns: Possible Outcomes’ (26/11/2020) <https://www.ahpra.gov.au/Notifications/How-we-manage-concerns/possible-outcomes.aspx>

[6] AHPRA, ‘How We Manage Concerns: Possible Outcomes’ (26/11/2020) <https://www.ahpra.gov.au/Notifications/How-we-manage-concerns/possible-outcomes.aspx>

OVERVIEW:

• The Australian Health Practitioners Regulation Agency (AHPRA) maintains a register of all health practitioners in Australia.
• In 2021, AHRPA prosecuted 52 health practitioners, resulting in 20 disqualifications and 13 suspensions.
• Within the 52 prosecutions, there were 10 practitioners that had continued practising despite being suspended and/or unregistered.
• A simple online search can reveal whether your health practitioner is registered and/or subject to any disciplinary restrictions.

Despite being subject to disciplinary restrictions, many health practitioners can continue to practice in Australia. So, how can you find out if your health practitioner is presently disqualified from practise or the subject of disciplinary restrictions?

This article provides you with some case examples of health practitioners practising despite being subject to disciplinary restrictions or suspensions; and tips on how to best research your health practitioner.

2021 CASE EXAMPLES

The following three cases were prosecuted by the Australian Health Practitioners Regulation Agency (AHPRA) in 2021 and are examples of health practitioners continuing to practice despite disciplinary restrictions:

Mr David Drawwater, a QLD Enrolled Nurse, was convicted of continuing to practice despite his registration with AHPRA lapsing. 

• Mr Drawwater’s registration lapsed on 1 July 2019, and he failed to renew it. He continued to work unregistered until November 2019, when his employment was terminated. During his unregistered period, he performed 35 shifts at an Ipswich aged care facility, where he had the primary responsibility for approximately 33 residents. AHPRA’s prosecution was successful, and Dr Drawwater was fined $8,000 and ordered to pay AHPRA’s costs. For further information about this AHPRA prosecution, visit here.  
•  Dr Chris Pepulani, a WA General Practitioner who was under supervision conditions imposed in May 2018, was suspended for 12 months after he was found to have practised unsupervised and uninsured over a three month period. Despite not being allowed to practice medicine unsupervised, Dr Pepulani, conducted 20 consultations and issued approximately 260 prescriptions unsupervised. AHPRA’s prosecution was successful, and Dr Pepulani was suspended from practice for 12 months. For further information about this AHPRA prosecution, click here.
•  Dr Brian Hickman, an NSW Psychologist who had been suspended by AHPRA in September 2018, was convicted of holding himself out to be a registered Psychologist in March 2019. Dr Hickman was fined $20,000 and ordered to pay AHRPA’s legal costs. In this case, AHPRA’s CEO said: ‘Falsely representing yourself as a registered health practitioner is a gross violation of the public’s trust. We hope this conviction acts as a deterrent to anyone else who might choose to ignore regulatory action taken by a National Board.’  For further information about this AHPRA prosecution, click here.

AHPRA REGISTER SEARCH

The first step to take in your health practitioner research is to perform a search of AHPRA’s online register, which is located here. 

To practice in the health profession in Australia, a practitioner must be registered with AHPRA. This applies to all health practitioners in Australia, from doctors, midwives and nurses through to podiatrists, osteopaths and Chinese medicine practitioners.  

Last week, we outlined the types of complaints investigated by AHPRA and provided a summary of their 2020/2021 annual report. You can read the full article here. 

An online AHPRA register search will identify: 

• Whether your health practitioner is registered to practice in Australia; 
• The date of your health practitioner's first registration with AHPRA; 
• Your health practitioner's qualifications; 
• Whether your health practitioner's registration is valid and/or subject to any restrictions or suspensions.

To find your health practitioner on AHPRA's register, you will require at least their surname. To narrow your search, knowing the type of health practitioner and the State or Territory in which they practice will be of assistance. 

OTHER FREE ONLINE SEARCHES

In addition to an online AHPRA register search, you can also perform:

1. Google review search - You are unlikely to find out about a health practitioner's restrictions or suspension via a Google review. However, a Google review may reveal previous dissatisfied patients or previous unfortunate incidents involving that health practitioner. Conversely, it may reassure you that your health practitioner is the appropriate practitioner for you.
2. Civil court party search – Most States have an online search function for their civil courts. If a health practitioner has been sued for personal injuries arising out of a medical negligence incident, that matter will appear in a civil court search.

RAISE YOUR CONCERNS

If your health practitioner's AHPRA registration is clear of any restrictions/conditions/suspension/ disqualification and you are unable to find much information about them elsewhere online, it may be that your health practitioner has not been the subject of a complaint, disciplinary action or a civil court matter.  

However, if you are still concerned about the ability of your health practitioner to treat your medical issue, feel free to ask them questions, such as:

• How many times have they performed/administered that treatment? 
• Their success rate with performing/administering the specific treatment? 
• Have they have experienced a negative outcome, and what were the reasons for that negative outcome?

Before any treatment, you should feel comfortable knowing that your health practitioner has the right qualifications and is clear of any disciplinary restrictions. If you feel uneasy or uncertain after conducting your online research, you should always discuss your concerns with your health practitioner. Alternatively, and if circumstances permit, arrange to see a different practitioner for a second opinion.

WHAT IF THEY ARE DISQUALIFIED OR PROHIBITED FROM PRACTICE?

If you have found out after a procedure/treatment that your health practitioner was not appropriately qualified and/or acted outside of the scope of any disciplinary restrictions as outlined on the AHPRA register, then a complaint should be made to AHPRA about that practitioner. Visit this link to our recent article for further information on AHPRA complaints.

If you have suffered injury, loss or damage as a result of treatment by an unregistered, restricted or suspended health practitioner, then you should seek legal advice immediately. We can help, just click here. 

OVERVIEW:

• Each year AHPRA reports on a number of complaints against practitioners and their outcomes.
• Complaints can result in a number of outcomes, such as restriction, suspension, fines and cancelled registration.
• Medical practitioners, dental practitioners, chiropractors, and psychologists had the highest rate of complaints.
• The majority of complaints relate to clinical care and boundary violations.

THE AHPRA ANNUAL REPORT

Each year, AHPRA releases a report addressing the number of complaints and actions taken against a range of practitioners subject to AHPRA Registration. 

These reports include a review of a number of practitioners, including: 

(a) Aboriginal & Torres Strait Islander Health Practitioners;

(b) Chinese Medicine practitioners; 

(c) Chiropractors;

(d) Dental practitioners;

(e) Medical radiation practitioners (Sonographers, radiographers etc.);

(f) Medical practitioners;

(g) Nurses & Midwives;

(h) Occupational therapists;

(i) Optometrists;

(j) Osteopaths;

(k) Paramedics; 

(l) Pharmacists;

(m) Physiotherapists

(n) Podiatrist; and,

(o) Psychologists.  

A full copy of the current report and reports from previous years can be downloaded here.

Within each specialty, the AHPRA Report provides details of:

• The number of specialists practising within that speciality;
• The number of notifications lodged with AHPRA;
• The number of complaints made to other complaint bodies such as speciality specific boards (dental board, chiropractic board, midwifery association etc.) and other regulatory bodies such as the OHO and HCCC 
• The most common type of complaint:
  • Clinical care;
  • Boundary violation;
  • Communication;
  • Health impairment;
  • Documentation (record keeping) etc. 
• The number of matters where immediate action is taken to ensure the safety of patients; 
• The number of matters where conditions have been imposed on practice;
• The number of matters where practitioners have been reprimanded or cautioned;
• The number of matters where practitioners have had their registration surrendered, suspended, or cancelled;
• The number of fines; and,
• The number of referrals to other bodies such as specialty boards and bodies.

SUMMARY OF COMPLAINTS BY SPECIALTY

As expected, every medical speciality experiences formal complaints for a number of different reasons.

Upon review of the AHPRA report, we have summarised the most significant reporting of complaints during the 2020/2021 annual year:

WHAT DOES THIS MEAN?

By far, the professions with the most complaints are: 

(1) Medical practitioners: with 5.7% of the profession having complaints made against them

(2) Dental practitioners:  with 4.1% of the profession having complaints made against them

(3) Chiropractors: with 2.3% of the profession having complaints made against them

(4) Psychologists: with 2.2% of the profession having complaints made against them

This means that these professions are subject to the most complaints due to clinical care, that being the treatment they provide falls below the expected standard of care, and boundary violations, that being transgressions of the practitioner-patient relationship.

COMPLAINTS & AHPRA INVESTIGATIONS AND IMPACT ON MEDICAL NEGLIGENCE 

By far, the majority of medical negligence claims are made in relation to clinical care and boundary violations. 

Clinical Care

Clinical care refers to the treatment and care provided to a patient by a medical professional or ancillary health care provider. When mistakes are made or care is not provided to the required standard, injury, loss, and damage can occur. 

For more on the level of care expected of professionals, see our article titled "4 tips to be successful in your medical negligence claim".

Boundary violations 

Boundary violations occur when a practitioner acts outside the practitioner-patient relationship. These violations are often ethical violations that have significant legal consequences for practitioners. 

An example of a boundary violation is forming a sexual/intimate relationship with a current or former patient. 

 Further information on boundary violations can be accessed here: "Do you know the boundaries of a doctor patient relationship".

Both breaches of duty and care and boundary violations are compensable in law if a patient/former patient has suffered injury, loss, and damage, and can establish breach and causation - the requirements of medical negligence.

To find out more on medical negligence damages, see our recent article "4 most common damages in medical negligence claims."

Overview 

• Anyone concerned about their medical treatment is able to make an AHPRA notification.
• Queensland residents should make complaints to the OHO.
• New South Wales residents should make complaints to the NSW HCCC. 
• Victorian residents should make complaints to the VIC HCCC.
• A list of cancelled, disqualified or prohibited health practitioners is published on the AHPRA website here.
• Complaints can be made about treatment received by a number of providers.
• Complaints are free.
• The complaint can be made via the relevant website, phone or post.
• You will be provided with the outcome of your complaint. 

What Is AHPRA?

The Australian Health Practitioner Regulation Agency (AHPRA) is a regulatory body. They regulate the conduct of all registered health practitioners in Australia and work alongside 15 National Boards to do this.

The primary goal of AHPRA is to protect the health and safety of the public and act in their best interests. The policies and guidelines that AHPRA creates must be met by all registered health practitioners.

What Is a Registered Health Practitioner?

AHPRA maintains a list of all health practitioners that are registered to practice in Australia, which include:

• Aboriginal and Torres Strait Islander Health Practitioners;
• Chinese Medicine Practitioners;
• Chiropractors;
• Dental Practitioners;
• Medical Practitioners (Doctors);
• Medical Radiation Practitioners;
• Nurses;
• Midwives;
• Occupational Therapists;
• Optometrists;
• Osteopaths;
• Paramedics;
• Pharmacists;
• Physiotherapists;
• Podiatrists; and
• Psychologists

Searching for a Practitioner

AHPRA has a public list of practitioners that have been cancelled, disqualified and/or prohibited from practice.

AHPRA also has a list of practitioners who have agreed not to practice due to previous complaints that have been made about them. 

The list of practitioners can be found here.
 

Healthcare Complaints in Queensland, New South Wales and Victoria (Non-Criminal)

Queensland 

In Queensland, contact the Office of the Health Ombudsman (OHO) to make a complaint about a health practitioner or health service.

You can make a complaint through the online complaint form here or phone 133 646.

NSW

In New South Wales, contact the NSW Health Professional Councils Authority on their website here or phone 1300 197 177 or (02) 9879 2200. 

Alternatively, you can contact the NSW Health Care Complaints Commission (HCCC) on their website here  or phone 1800 043 159 or (02) 9219 7444.

Victoria

Contact the VIC Health Care Complaints Commission (HCCC) on their website here or phone 1300 582 113.

Alternatively, you can lodge a complaint directly to AHPRA.

It is free to make a complaint to any of these services. The OHO/HCCC will listen to your complaint and may commence an investigation. 

This can lead to several different outcomes, which include: 

• an explanation or apology for the incident;
• a refund for the health service that was provided;
• escalation to AHPRA for investigation;
• a practitioner being reprimanded; 
• penalties and sanctions applied to the practitioner’s registration; and
• in very serious matters, cancellation of a practitioner’s medical registration in Australia. 

Healthcare Complaints (Criminal)

If a healthcare practitioner has engaged in criminal conduct, this should be reported directly to the Police and to AHPRA (instead of going through the OHO or HCCC process).

AHPRA can take immediate action to protect the health and safety of the public. 

Why Should a Notification to AHPRA Be Made?

Notifications (complaints) to AHPRA help to protect the health and safety of the public. This ensures that AHPRA and the National Boards are made aware of any threat to public health and safety.

They can act to prevent further problems from occurring in the future.

AHPRA is also entitled to take disciplinary action. 

How to Make a Voluntary Notification

Anyone can make a complaint to AHPRA if they are concerned about the behaviour of a health practitioner that they have experienced or witnessed.

The National Law will protect the notifier from liability when they make a notification in good faith. The notifier is able to choose to remain anonymous.

You can make a complaint by using AHPRA’s online portal here or phone 1300 419 495.

It is free to make a notification to AHPRA. 

AHPRA will listen to your concerns and provide you with an update when it is possible. 

Summary

AHPRA regulates the compliance of Australian health practitioners to ensure that the care they provide to patients is consistent and safe.

If you live in Queensland and are unhappy with the treatment received from a healthcare provider, you can make a complaint to the OHO.

If you live in New South Wales are unhappy with the treatment received from a healthcare provider, you can make a complaint to either the NSW Health Professional Councils Authority or the HCCC. 

If you live anywhere else in Australia or are looking to make a complaint about a criminal matter involving a healthcare professional, you can lodge a notification with AHPRA. 

For more information, consult with the AHPRA website here. 

Overview: 

• Anyone concerned with their medical treatment is able to make an OHO complaint;
• Complaints can be made against doctors, chiropractors, psychologists and hospitals;
• The complaint can be made via the OHO website, by phone or by post;
• Complaints are free;
• The outcome of your complaint will be provided to you; and
• Complaints may be taken further to APHRA, a national organisation regulating health professionals.

What is the OHO?

The Office of the Health Ombudsman (OHO) manages the complaints made about registered and unregistered health practitioners and health services such as Hospitals.

Upon reviewing the complaint, the OHO may take immediate action to protect the health and safety of the public.

Examples of OHO complaints: 

• Failure to diagnose;
• Delay in diagnosis or treatment;
• Failure to perform surgery with the required care and skill;
• Lack of post-operative care and management;
• Incorrect prescriptions or medications; and
• Patient-doctor relationships.

Who Can I Make the Complaint About?

You can make a formal complaint about any health service or professional, both public or private, in Queensland.

This may include:

• Doctor;
• Nurse;
• Chiropractor;
• Physiotherapist;
• Psychologist;
• Hospital;
• Private clinic; or
• Ambulance service

Why Should an OHO Complaint Be Made?

Complaints are important as it ensures that both the OHO and health service or practitioner are aware of your concerns.

It can assist the OHO in identifying where the health service should improve and prevent further problems from occurring. This means that other members of the public will be protected as well.

A complaint may lead to an explanation, an apology or refund of the cost of the health service.

Disciplinary action may be taken against the practitioner or health service by the OHO or National Board such as APHRA.

How Do I Make an OHO Complaint?

Anyone can make a complaint to the OHO. This may include the patient receiving treatment, their family or friend or any other concerned person.

The complaint may be made in writing through the online complaint form here or over the phone on 133 646.

The OHO may require further written information to assist in understanding your complaint.

The complaint requires no payment of money to start the investigation.

A complaint should address:

• Who was involved? E.g. health practitioner or hospital
• Where did the incident occur?
• What happened and when?
• The concerns raised
• Whether anything has been done anything to address the issue? E.g. internal complaint to the service
• What do you want to happen?

A summary of the complaint will be provided to the health service or practitioner for their response. In most cases, the other party will respond to the complaint.

You should be advised of the outcome of your complaint.

Summary 

The OHO aims to protect the health and safety of the public. The OHO ensures that health professionals and health services are operating at a competent, safe and professional standard.

If you or someone you know are unhappy with their health care treatment, you are entitled to make a complaint.

Visit the OHO website here.