A DOCTORS' defence organisation proposal to a NSW Government review will lead to even less public scrutiny of problem doctors, say health consumer advocates and patients left injured after surgery by Hunter eye specialist Eugene Hollenbach or following pelvic mesh implants.
Australia's biggest doctors' insurer group, Avant Mutual, has told a NSW Justice review that the NSW Civil and Administrative Tribunal (NCAT) should be given expanded powers to dispense with public hearings in disciplinary actions against doctors, including professional misconduct, where they retire or voluntarily deregister before proceedings, or admit to complaints.
The submission was made after Avant annual reports showed disciplinary complaints against doctors have grown from 15 new claims per 1000 doctors in 1997 to 48 new claims per 1000 doctors in 2016.
Avant, which represents more than 78,000 doctors, said using alternative resolution measures and reducing open hearings would be in the public interest and facilitate "just, quick and cheap resolution of proceedings".
"There are other ways matters can be dealt with more efficiently than a full open hearing," Avant told a NSW Justice statutory review of NCAT.
It denied its submission suggested less transparency about doctors and their patient histories.
"The regulatory process needs to protect the public but it shouldn't do so in a way that damages doctors so much that it jeopardises their ability to practise safe and effective medicine," Avant said.
But the proposal for negotiated settlements and fewer public hearings has been strongly criticised by health consumer groups, which said what was needed was more transparency about doctors and their complaint histories, not less.
Health consumer advocates including Danny Vadasz, a leading voice for women left injured after pelvic mesh surgery, said while medical indemnity insurers received all complaints about doctors, the public had no way of knowing doctors' complaint histories until after things went wrong.
It was in the interests of doctors and insurers to keep doctors' names out of the public because many patients believed they were unlucky, rather than the recipient of poor or negligent treatment, until publicity about their doctors following tribunal proceedings, Mr Vadasz said.
"When was reducing public scrutiny ever in the interests of the public?" said Mr Vadasz.
"The majority of legal cases against doctors end with confidential settlements. Tribunals are one of the few places where there is public accountability for when things go wrong."
A University of Melbourne study in 2013 of nearly 19,000 patient complaints against doctors over 11 years found 3 per cent of doctors were responsible for 49 per cent of complaints.
The study led by academic Marie Bismark also found doctors with three complaints against them had nearly a 60 per cent likelihood of further complaints in two years, but risk management based on doctors' complaint histories was "not a standard part of risk management practice" for regulators or liability insurers.
In evidence to a 2005 Senate inquiry an Avant representative said the group had a "filter process which identifies doctors who have many claims". Avant responded to multiple complaints against doctors by placing "loadings on premiums" or restricting some procedures.
Avant, a doctor-owned mutual group that advertises it runs "purely for their benefit", recorded $1.2 billion in assets and a $47 million surplus in 2018 because of "lower than expected payouts" to patients after "robust defence of civil claims", despite a rise in complaints against members.
The Avant submission was lodged on July 5, only weeks after professional misconduct findings against pelvic mesh device inventor and gynaecologist Peter Petros, following a public hearing that included a substantiated claim he misled the NSW health watchdog while it was investigating allegations against him.
The Health Care Complaints Commission (HCCC) has referred the findings to NSW Police. Dr Petros said he was unaware of the referral.
Under Avant's proposed changes a public hearing against Dr Petros could have been dispensed with after he voluntarily deregistered in the months before the NCAT proceedings.
Dr Petros was the subject of two previous unsuccessful professional misconduct proceedings involving multiple complaints.
Avant made its case for less public scrutiny of disciplinary proceedings a month before professional misconduct findings against Hunter eye specialist Eugene Hollenbach.
A Newcastle Herald article about the NCAT findings against him has prompted nearly 20 other former patients to contact the newspaper alleging similar complaints that have not been raised with the state's health watchdog.
"You just think you're the unlucky one when things happen," said Bob Finch, 76, of Corlette, who was left blind in one eye after cataract surgery by Dr Hollenbach in 2010 and multiple further surgeries following complications.
In August Hunter New England Local Health Service apologised to Dr Hollenbach's many elderly public patients "who did not receive appropriate care and treatment" by him, including some patients left blind in one eye.
The HCCC is now considering "whether further action is appropriate" against Dr Hollenbach based on another 10 complaints in 2017, and after NCAT rejected the HCCC submission that his registration be cancelled.
NSW Greens MP and justice spokesperson David Shoebridge said it was "no wonder the main insurer for doctors wants to shut down open hearings in NCAT but we must not let their commercial interests trump the need for open justice and patient safety".
"No profession should be allowed to hide from scrutiny, especially not doctors who quite literally have the power over life and death," Mr Shoebridge said.
"For justice to be done it needs to be seen to be done, and this is why the increasing resort to secrecy by NCAT is deeply troubling. Private hearings, non-publication orders and summary dismissal of complaints would work for those doctors with something to hide, but will do nothing to ensure the public are protected.
"Justice can be uncomfortable and complaints can be unjustified, but secrecy is a dangerous response to these complex problems," Mr Shoebridge said.
In its submission to NCAT Avant acknowledged possible concern that "by allowing settlement by agreement, the deterrent effect of a published decision will be lost".
The concern could be overcome by "orders of agreed settlement" that "include a statement of agreed facts and agreed sanction", Avant said.
In its 2014 annual report Avant said it had successful outcomes in 10 out of 11 civil claims that went to trial or appeal, in a year when 8500 complaints or notifications were made.
"When litigious patients or lawyers seek to challenge the skills or judgements of you, our members, we see it as our role to vigorously defend you and your reputation," the 2014 annual report said.
The 2015 Avant annual report said professional conduct claims continued to be the most common reason doctors needed legal support.
The 2018 Avant annual report said: "We are owned by our Australian doctor members and run purely for their benefit."
Avant head of research, education and advocacy Georgie Haysom said the company advocated changes to legislation and regulation with the aim of making regulatory processes more efficient, cost-effective and fair.
"Our submission to the NCAT review does not suggest less transparency. It is focused on improving the procedural operation of NCAT, to improve the timeliness and reduce costs to all parties," Ms Haysom said.
Alternative dispute resolution was used in many jurisdictions to resolve disciplinary cases, she said.
"This power is used in Western Australia, where the tribunal's orders include a statement of agreed facts and the agreed sanction, and these are published by the tribunal."
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