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The presumption of innocence seems to apply to everyone but doctors. Is the balance right when it comes to investigations into medical practitioners? Mary Fallon finds out.
DR BALAJI Rao has been suspended from practice since 23 February 2007, pending an investigation into the deaths of two elderly patients.
The NSW Department of Public Prosecutions (DPP) dropped their case against the Tocumwal GP in January and he now awaits a medical tribunal hearing set for May.
The tribunal will reach a decision about the professional conduct of Dr Rao independently of the DPP criminal investigation.
Whether found guilty or innocent of wrongdoing, the case poses questions about the process and duration of practitioner suspension.
“In Balaji Rao’s case, it was decided that the nature of the complaint was such that the public ought to be protected, and the only way that could happen was by the doctor being suspended,” says a spokesperson from the NSW Medical Board.
“We’re fulfilling our role in protecting the public pending the investigation’s conclusion.”
The presumption of innocence is a basic tenet of our criminal justice system that cannot be afforded to doctors where the protection of the public is at stake. But are medical boards too quick to suspend, especially in light of recent extreme and highly publicised cases such as that of so-called ‘Dr Death’, Jayant Patel, and the ‘Butcher of Bega’, Graeme Reeves?
Helen Turnbull, legal manager at Avant Law, says they are not.
“Medical boards are very fair in saying that an emergency hearing that could lead to suspension is not about deciding guilt,” she says.
“Their role is the protection of the public. And if conditions or orders are available that protect the public, then suspension would be the last resort.”
When a complaint is made against a doctor, the Health Care Complaints Commission (HCCC) and relevant medical board jointly assess what action is to be taken.
If it involves serious criminal matters, inappropriate prescribing, impairment where the doctor has no insight into the problem, or breach of registration conditions, the HCCC will undertake a full investigation and the medical board an interim, emergency hearing.
Section 66 of the NSW Medical Practice Act enables the NSW Medical Board to take urgent action against a doctor if it judges it is necessary for the protection of public health or in the public interest to do so.
It has two courses of action open to it: to suspend a doctor from practising medicine, or impose conditions on a doctor’s registration.
“We take the minimum action necessary to protect the public,” says NSW Medical Board medical director Dr Alison Reid.
“So if we can protect the public with conditions, that’s what we do. And if we feel we can’t, then we suspend the practitioner.”
There are far-reaching ramifications for doctors who are suspended, especially longer term.
It is personally extremely stressful living under a cloud of accusation and not knowing when you can return to work and resume earning an income. The practice falters as patients go elsewhere or a replacement has to be found; and in a rural situation, this might not be possible and the whole community suffers.
Medical boards recognise this and doctors are able to seek a review of suspension in light of developments at any time during the investigation.
Doctors may also request to continue practising with conditional registration, as long as public health and safety can be protected. This may involve formal supervision, auditing of medical records, practising at a lower level of seniority, or reduced exposure to patients.
“For example,” Ms Turnbull says, “in a case of sexual misconduct in the practice, you can have conditions such as not to see a female patient under the age of 20 years, or if you do see a female patient, there always has to be a chaperone. You have to record a daily list with the chaperone that the chaperone signs off.”
A change in Section 66 to include the public interest test as a criterion for suspension in 2008 has widened the powers of medical boards to take action. Prior to this, a board could invoke Section 66 only “for the purpose of protecting the life or physical or mental health of any person”.
“The change in legislation gave the medical board wider powers to make an order under the emergency powers,” says Ms Turnbull.
“That is, as a result of some high-profile cases, the board’s threshold test for suspending a doctor has been lowered from requiring action to be necessary to protect the life or health of a person, to merely allowing the board to act as they deem it appropriate to protect a person or the public more generally.”
Ms Turnbull says that in her experience many doctors are confused about the process when confronted by it: “Many doctors think it’s all over and done with when they have this emergency hearing and don’t understand why the relevant complaints body is carrying out an investigation when the medical board already appears to have done so.”
The wording of the legislation that says a suspension should not exceed eight weeks is also a point of confusion for doctors.
“What they don’t understand is that it can simply roll over if the doctor’s circumstances haven’t changed while the investigation continues,” Ms Turnbull says.
This is how, in cases like that of Dr Rao, a doctor can remain suspended for more than three years.
“The period of time a doctor is suspended varies with the circumstances,” Dr Reid says. “Some practitioners remain suspended for the duration of the investigation and that is dependent on how complex the matter is and the workload of the HCCC.”
She says it is not unusual for a suspension to be as long as three years or more, but it is unusual for no case to be found against a practitioner suspended for such a period.
The Rao case will be decided later this year and a medical tribunal hearing.
“It has the power to impose conditions, to deregister him for a period or to take no further action,” according to the board’s spokesperson.
If the latter, it may be a hollow victory for Dr Rao and his supporters. There is no provision in the legislation for compensation for suspended doctors.