"I now have fewer rights than a common criminal"

No, these are not the remarks of a citizen of modern day Zimbabwe. Rather, the reaction of a NSW doctor to the NSW Medical Practice Amendment Act 2008 following an urgent meeting called to discuss changes to the NSW Medical Practice Amendment Act 2008 and related national issues.

Two (of many) changes generated by the Act are mandatory reporting (supported by the NSW AMA) and public hearings without legal representation (opposed by the NSW AMA).

Mandatory reporting

It will now be mandatory (compulsory) for a NSW registered doctor to report any behaviour which he/she believes to be "a flagrant departure from accepted standards of professional practice or competence and risks harm to some other person¹ " also, "intoxication by drugs or alcohol²" and "sexual misconduct in connection with the practise of medicine"³ . This alters the previous standard introduced in 2005 which placed an ethical obligation under a doctor's professional code of conduct to report adverse performance and conduct of their colleagues. From here on in, failure to report according to the definition will amount to misconduct and carry possible deregistration. No other health profession will carry this obligation.

Why the Change?

In her first reading speech, NSW Health Minister Reba Meagher justified mandatory reporting on the basis that although doctors had an ethical obligation to report adverse performance and conduct of their colleagues, "however the Medical Board advises that the level of reporting by practitioners since that time [2005] has not changed greatly. This reinforces the public's perception of a closed shop culture in the medical profession. The government has therefore decided it is an appropriate time to impose legal mandatory reporting on the medical profession"⁴.

Public hearings of allegations without legal representation

The Professional Standards Committee will now be a public forum (previously private) unless the person making the allegation against the doctor (or the PSC) decides otherwise. The doctor will not be entitled to legal representation.

Why?

The NSW Health Minister states, "it is critical that there is public confidence in the operation of the regulatory system. This has clearly been undermined by information that has come to light in the Dr Reeves matter, which has led to a public perception that the standards applied to medical practitioners by other practitioners give inordinate weight to professional interests as opposed to the public interest."⁵

In brief, NSW doctors have been found guilty by the Minister of a "closed shop culture" (professional cover-up) of their colleague's misbehaviour and are no longer entitled to the legal rights given to any other citizen facing serious allegations.

Writing in the NSW Law Journal in June 2008, plaintiff solicitor, Terry Stern was interviewed about the legislation, "While he thought some plaintiff's lawyer might think it good to have a doctor in the public session because of the "dirty linen" would be made available, and might wonder why he was opposing legislation where plaintiffs and their lawyers would have a "free hit", he felt that it was wrong."⁶

The Australian Doctors' Fund is campaigning for changes to the legislation to restore the common rights of NSW medical practitioners. Failures by hospital administrators and others, despite warnings and complaints by the profession should not result in scapegoating of hardworking ethical doctors. Practising medicine should not entitle a person to fewer rights than a common criminal.

Stephen Milgate
Executive Director
Australian Doctors' Fund

1. Medical Practice Amendment Bill 2008, 71A
2. ibid
3. ibid
4. The Hon Reba Meagher, 1st Reading speech, Medical Practice Amendment Bill 2008, 7/5/08
5. The Hon Reba Meagher, 1st Reading speech, Medical Practice Amendment Bill 2008, 7/5/08
6. Terry Stern, Doctors done down under proposed laws, says med negligence expert, Law Society Journal, June 2008, p17