Under the spotlight
The Medical Council of NSW works in collaboration with the NSW Health Care Complaints Commission (HCCC) to receive and manage complaints about doctors and medical students in NSW.
The Council’s paramount legal obligation is to protect the public. It deals with doctors whose conduct, performance or health may represent a risk to the public.
We do this by assessing complaints, promoting compliance with professional standards and delivering programs to ensure doctors provide safe care to their patients.
But, if a complaint is made about a practitioner, there are processes and terminology used that is foreign. 'Spotlight on' aims to provide transparency on some of these processes, procedures and terminology.
Spotlight on: Council Based Assessments
If a complaint has been made about a medical practitioner, they may receive a letter from the Medical Council requesting they participate in a Council based assessment (CBA). This process involves medical peers, appointed by the Council assessing the clinical concerns raised in the complaint based on a range of information, including insights from the practitioner.
Council based assessments are conducted as an interview. They can include a discussion of the doctor’s background and training, current practice, personal situation and health, plans for the future as well as a detailed discussion of the complaint and the concerns it raises. Often, a selection of the practitioner’s medical records is reviewed, and several practical scenarios are discussed with the practitioner. Wherever possible CBAs take place remotely via videoconference.
The CBA process is not disciplinary but allows the Council to effectively assess some types of performance-related complaints while ensuring the practitioner is involved in discussions about the issues raised in the complaint and have the opportunity to provide their perspective and views.
The introduction of Council based assessments in 2019 has helped reduce the time some doctors are waiting to have performance complaints about them resolved and a decision reached by Council delegates. This is a positive step in reducing the stress on doctors who come to the attention of the Council where clinical care forms the basis for the complaint.
Spotlight on: self-reflection forms
In March 2021, the Medical Council introduced the use of a Self-Reflection Form. This form asks the doctor for specific information which the Council uses to consider the complaint made against them. The Nursing and Midwifery Council has successfully used a similar form for several years.
The Self-Reflection Form is designed to provide the Council with further information about a doctor’s practice. Specifically, it shines a light on whether the practitioner can identify any potential changes or improvement to their overall practice as a result of the complaint, how they may address similar situations in future and if professional development may be of benefit to them.
The Council sought feedback about the new process from several medical indemnity insurers and this helped improve the form. The Council appreciates the value that these stakeholders added and thanks them for their input.
The Council does not ask every doctor with a complaint to complete a Self-Reflection Form, but it may ask a practitioner to complete the form where their response to a complaint has been reassuring but evidence is missing. This is particularly relevant to changes to practice, engagement with others (such as employers or their medical indemnity insurer) and addressing the complaint in the context of the Good Medical Practice Guide – A Code of Conduct for Doctors in Australia, for example.
This new process enables the Medical Council to make a more informed assessment of the practitioner’s ongoing risk and whether further regulatory action is needed to protect the public.
Spotlight on: 'No Further Action' outcomes
The Medical Council is acutely aware of the stress doctors’ experience when a complaint is made about them. We recognise there is much anxiety about your future, your livelihood, your reputation and even your identity, with many doctors understandably asking lots of questions throughout the process.
A consistent focus of the Council is to ensure we continually refine and tweak processes to become more timely, empathetic and transparent. It is pertinent to note that 83% of complaints result in either “no further action" or are discontinued outright.
“No further action” means that the complaint, combined with existing knowledge of the doctor did not meet the risk threshold to warrant further action. A complaint may also result in ‘no further action’ if a practitioner has reflected on their practice, acknowledged areas of concern and taken steps to improve.
If the doctor has no insight into the issue, delegates will extract the key themes of the complaint and provide the doctor with recommendations and advice on next steps. Council does not monitor this advice for compliance, but the complaint and any recommendations will remain on file to assist Council to form a holistic picture of the practitioner and pick up any potential trends should additional complaints occur in future.
Spotlight on: health assessors
Complaints to the Council about doctors generally fall into one of three categories - health, performance or conduct.
When assessing a practitioner who may be impaired, the Council engages a health assessor. All assessors are registered health practitioners, appointed by Council, for their knowledge of a particular specialty or subspecialty. Often health assessors are psychiatrists or clinical psychologists.
Their role is to make an independent assessment about whether a doctor is impaired, the extent and nature of the practitioner's impairment and whether any impairment will impact on their ability to practise medicine safely. The health assessor will also assess whether participation in the health program is appropriate. The assessment undertaken is medico-legal rather than a therapeutic consultation.
If a doctor is deemed to be impaired, they are recommended to join the health program. The health program is constructive, non-disciplinary, and aims to work with the practitioner to ensure their health impairment is assessed and treated. This approach has an end goal of assisting the practitioner to return to work in a safe manner, for their own personal health and that of their patients.
Should a practitioner enter the health program, they will generally see the same health assessor for periodic review and oversight of progress.
The reports and recommendations prepared health assessors are used by the Council to determine further action, if required. Health assessors do not have the power to make the final determination of whether conditions or suspension are applied to practitioners.
Spotlight on: Performance Review Panels (PRP)
When a performance matter is referred to the Council, one possible outcome is the practitioner may be required to undergo a Performance Assessment, which in some instances can lead to a Performance Review Panel (PRP). Of nearly 2000 complaints received by the Council related to performance in 2020-2021, 41 of these complaints underwent a Performance Review. Performance Review Panels are designed for a dual purpose: to remediate professional performance and to protect the public.
Panels are held with as little formality as possible and are not meant to feel like court proceedings. The Panel is usually comprised of one lay member and two medical practitioners, one of whom works in the same area of practice as the practitioner being reviewed.
If you receive notice of a PRP, it will specify the time and place of attendance, and may also specify documents you will need to bring along as supporting information. To prepare for a PRP, you can seek assistance from your medical indemnity insurer, reflect on the Performance Assessment report, and bring along documents to support any changes you have made to your practice that may have been outlined as needed in the report. You are also encouraged to rely on friends and family for support in what can feel like a confronting situation.
The hearing takes place over a full day, in which the panel members review evidence of the issues leading to the Panel. The practitioner has ample opportunity to present their perspective. The practitioner can have a support person by their side (such as a lawyer or other advisor), but the Panel must hear directly from the practitioner. The Panel then decides whether the doctor’s practice of medicine meets the standard reasonably expected of a medical practitioner with an equivalent level of training or experience.
If the Panel finds that a practitioner's professional performance is below the expected standard, it may place conditions on their registration to remediate the practitioner and to protect the public. These conditions are not punitive, and the Panel does not have the power to suspend or cancel a practitioner’s registration.