Martin Fletcher faces Senate Inquiry’s public hearing.
“CHAIR (Senator Siewert): It is also a contempt to give false or misleading evidence. The committee prefers all evidence to be heard in public, but under the Senate’s resolutions witnesses have the right to request to be heard in private session. If you are a witness today, let us know if you want to do that, because we have to prepare for it. Welcome, Mr Fletcher, and thank you for coming today. Could I just confirm that you have been given information on parliamentary privilege and the protection of witnesses and evidence.
Mr Fletcher: Yes.
Fletcher: Three, AHPRA will commission research on vexatious complaints to deepen our understanding. I think it is important to note that the term ‘vexatious’ can mean different things to different people. In my experience, some practitioners who are the subject of a well-founded report made in good faith will deny any wrongdoing or problems. However, just because a doctor feels a report was unfounded or vexatious does not make it so. By ‘vexatious’ I mean complaints motivated by rivalry, commerce or emotion rather than genuine concerns for patient safety. As we have previously advised the committee, the data we have and the available research indicate this is a very small problem, but we recognise it has a big impact when it happens. We will publish what we learn and act on it.
Senator XENOPHON: You have said that AHPRA will commission research on vexatious complaints to ‘deepen our understanding’. Does that imply that—I do not want to say this in a provocative way—there is much more that can be learnt by AHPRA in relation to vexatious complaints? Is it that there is a lot that you do not know, or is it that there is more scope to deepen your understanding beyond the current levels of understanding that AHPRA has about bullying and harassment and vexatious complaints?
Mr Fletcher: What I am saying is that in all of the available data and research evidence that we have looked at there does not appear to be a big problem with vexatious complaints, and by ‘vexatious’ I mean a harmful intent on the part of the person making the complaint and no patient safety concern emerging when we look at the issue. If I can just give you an example—
Senator XENOPHON: When you say ‘not a big problem’, do use mean that in terms of numbers?
Mr Fletcher: In terms of numbers. If I can give you one example, we have a research partnership with the University of Melbourne. They looked at 850 mandatory notifications over a 12-month period. They found fewer than six that they believed potentially met the criteria for a vexatious notification. The point I am also making is that, even though the numbers are small, we recognise that the impact on the individuals involved can be significant.
Senator XENOPHON: Can we go back a step. You said there were 850 mandatory notifications and six were found to—
Mr Fletcher: Under six. They said ‘under half a dozen’.
Senator XENOPHON: Under half a dozen were found to be vexatious. Can you provide, on notice, the criteria for that assessment. In other words, how did they come to that conclusion? It could be an eminently reasonable conclusion they came to. Was there a natural justice process involved? In other words, what was the process to establish whether it is vexatious or not? There are 850 cases. What was the rigour involved? What were the mechanisms? Was there a like-for-like comparison? I am just trying to understand the robustness of the process.
Mr Fletcher: The process involved a review of some of the core documentation in relation to, for example, the correspondence that is sent to a practitioner about a notification that has been received. I can give you a couple of examples to give you just the flavour. One, for example, related to a couple who were both medical practitioners, who had been married and who were divorcing. There was an issue about the future of the practice in the context of their divorce. Another one related to two health practitioners who were in a relationship with the same other health practitioner, and notifications were made in the context of that. So it is typically those sorts of issues around questions of commerce, emotion and rivalry in what we would term harmful intent with no patient safety concerns emerging as a result of a notification.
Senator XENOPHON: Would that be one of the criteria? In other words, if the complaint is motivated by other doctors rather than patients having an adverse outcome—in other words, there is no question of an adverse outcome for patients but doctors are complaining about another medical practitioner—is that a factor where that might raise a yellow flag, at least, to say that this is something that could potentially be a vexatious complaint because it is not generated by any safety concerns as such?
Mr Fletcher: In relation to the comment you made earlier, Senator, there are examples of where the intent in the reporting may not have been particularly honourable but in fact, when we have looked at the issue, there has been an issue of patient safety that has required some sort of regulatory response. So I think there are different elements of this, and the point I tried to make in my opening statement is that it is also the case that at times doctors who may feel that there is no basis for the concern or that it is not right that a complaint has been made about them may in fact feel that that is a vexatious process. I would not necessarily consider that to be a vexatious complaint in the context which we are talking about.”
Research, page 4, ‘In line with regulatory and legal principles and precedent, a truly vexatious complaint is defined not by outcome or subject experience, but by a specific combination of basis and intent. That is, a vexatious complaint is a groundless complaint made with an adverse primary intent to cause distress, detriment or harassment to the subject.
How common are vexatious complaints?
We identified a major disconnect between the volume and fervour of anecdotal and editorial claims regarding the alleged extent of vexatious complaints in the Australian health sector, and the available evidence. Claims that the problem is rampant are largely based on a non-representative, self-selected sample of practitioner anecdotes. In numerous cases where a practitioner initially alleged that a complaint against them was vexatious, subsequent tribunal and court processes found that unprofessional conduct had in fact occurred.
There is a paucity of robust research about the actual incidence or impact of vexatious complaints in the health sector, but the best available estimates suggest no more than 1% of complaints are vexatious. The limited literature on vexatious complaints focuses almost exclusively on complaints made by members of the public who display obsessive and unreasonable complaining behaviour. There is essentially no empirical evidence on the incidence of professionals lodging vexatious complaints about each other for personal or professional gain, or as a bullying tactic.
What factors may contribute to vexatious complaints?
Evidence supports the idea that lay complainants who become vexatious may be driven by needs the complaints system has not addressed or cannot address, or psychopathology. Their behaviour is more likely to take on an obsessive and ‘out-of-control’ quality, and thus is often relatively easily identified as it intensifies.
By contrast, some people believe that professional complainants who become vexatious are more often driven by personal conflict with a fellow practitioner and/or a desire for personal or professional gain. It is suggested that their behaviour is more likely to be targeted and calculated, and thus more subtle and difficult to detect. However, we could not find evidence to support or refute these claims, due to the lack of evidence regarding the behaviour of professional complainants.’
The research does not look into complaints made by health practioners.
Martin Fletcher made misleading statements in the Senate Inquiry that research looked into mandatory notifications ‘we have a research partnership with the University of Melbourne. They looked at 850 mandatory notifications’. Mandatory notifications are made by health practioners.
The research found no more than 1%, but they were made by members of public, not mandatory notifications.
Martin Fletcher lied that the research looked into complaints made by health practioners. ‘One, for example, related to a couple who were both medical practitioners, who had been married and who were divorcing. There was an issue about the future of the practice in the context of their divorce. Another one related to two health practitioners who were in a relationship with the same other health practitioner, and notifications were made in the context of that.’