Australians are amongst the longest-lived people in the world. This is in no small measure a product of our natural resources and pristine environment, which are favourable to a healthy disposition.
We also enjoy the privilege of having a robust system of education – another asset to be counted in our good fortune. Without doubt we can also include our wonderful health system in making a substantial contribution to supporting our long and healthy lives.
Every measure of human success records health and education as being major determinants of outcome. The Australian Healthcare system should rightly be regarded with pride as being one of the best and most efficient systems in the world. Australians enjoy a life expectancy that is five years longer than the Americans and few other nationalities are longer lived.
In fact, American life expectancy has been in decline in recent years, whilst in the UK the National Health System is perennially on life-support and on the very brink of collapse.
Whilst the cost of healthcare in Australia is substantially less than in both the USA and the UK, outcomes are almost universally superior. Owing to the combination of our natural environment, geographical remoteness and lack of land borders, and the fortuitous circumstance of the virus making landfall in our summer in early 2020 – in the recent Covid Pandemic, the cumulative mortality rate was almost six times higher in the USA and the UK by comparison to Australia according to Our World in Data.
Public surveys of trust in our health professionals regularly demonstrate that nurses and doctors are the most trusted professions in our society. Yet today, our healthcare system and the individuals dedicated to its delivery are facing one of the greatest challenge in its history which threatens its survival.
On October 11 (today), the Queensland government is set to pass an amendment to the Health Practitioner Regulation National Law Act that will mandate doctors and nurses to follow government regulations and directions even when they believe the patient’s interests might be best served otherwise. Once legislated in Queensland, the other states and territories are likely to follow suit.
Complaints about a medical practitioner in Queensland are handled in the first instance by the Office of the Health Ombudsman (OHO). The OHO is directly responsible to the Queensland Health Minister. The OHO has no medical oversight, outsourcing its documentation to the appropriate agency as it sees fit. For example, the OHO may seek guidance on the performance of a particular practitioner from AHPRA (Australian Health Practitioners Regulatory Authority), which has access to medical expertise. AHPRA then will feed back to the OHO on its findings.
The primary function of the OHO and AHPRA is to protect members of the public against malfeasance by a health practitioner. In recent years, what constitutes a threat to the public interest has become an increasingly contested space. This was illustrated earlier this year when the NSW Supreme Court admonished AHPRA for its suspension of a General Practitioner who it determined posed no threat to the public. The Court held that APHRA’s conclusion (that the Applicant posed a risk to the health and safety of the public) had no evidentiary foundation and was irrational. The condemnation of the Supreme Court added grist to the mill and now this legislative amendment is being presented to the Queensland Parliament.
The unconsidered consequence of this legislation is that doctors will no longer be able to exercise clinical judgment across a wide range of measures where government has issued directives. Expansion in government agencies means there are often multiple directives from multiple agencies that are directly contradictory. Almost every directive ends with the recommendation that the patient seeks advice from their GP. Put simply, the legislation is unworkable.
What defines a risk to the health and safety to the public in Queensland is primarily determined by the OHO investigator. The Queensland OHO is largely staffed by lawyers with the bulk of their experience coming from the criminal justice system. Determinants that affect the clinical environment are very different from criminal determinants and this experience has not translated well into the medical sphere.
The approach taken by the OHO is predominantly an adversarial one. This tends to a polarisation of participants often leading to high levels of disappointment and frustration from all sides. Investigations may take years to complete, leaving both complainant and practitioner in a state of perpetual uncertainty.
Needless to say, this approach does little to foster good relationships and is very different from the conciliatory methods applied previously. Return to conciliation would be in the interest of patients and public, leading to much faster processing and better outcomes. Without ‘in-house’ medical expertise OHO investigators face an invidious task given the increasing specialisation creeping in and technological changes that have swept through healthcare.
Less than 1 per cent of complaints are linked with serious misdemeanours, and so we are seeing inexorably intense inquisition of an ever-shrinking problem. The combined success of effective healthcare practices and rigorous regulatory process has already delivered the world’s best practice.
Consequently there is little demand for the OHO and AHPRA products. Satisfaction in the system is high, trust of doctors and nurses within the community is unchallenged and improvement in standards has all but eliminated the bad practices of the past. The OHO and AHPRA are dancing at shadows when the public threat is at an all-time low.
The agencies are now posing a serious threat themselves to the stability of our health system because intrinsically they lack the capacity to determine the measure of a clinical opinion. The OHO and AHPRA have failed to adapt to medical progress over the last 15 years and are increasingly losing pace. As they fall further behind this amendment will send our healthcare system into complete paralysis because the legislative framework is no longer fit for purpose.
Dr David Richards and Professor Wendy Hoy