The most important insurance cover that MIPS provides in indemnity insurance. Indemnity insurance for healthcare practitioners is also referred to as:
- Medical indemnity (typical in Australia)
- Professional indemnity (typical in the UK and for other occupations)
- Medical malpractice insurance (typical in the USA)
One of the mandatory registration standards of the Medical Board of Australia relates to professional indemnity.
" All medical practitioners who undertake any form of practice must have professional indemnity insurance or some alternative form of indemnity cover...initial registration and annual renewal of registration will require a declaration that the medical practitioner will be covered for all aspects of practice for the whole period of the registration".
Interns and other public hospital employed doctors are covered by their employing hospital in terms of professional indemnity as the employing hospital is vicariously liable for the omissions or negligence of employees. This meets the AHPRA indemnity requirement. Hospital employed doctors are also frequently members of medical defence organisations (MDOs) or insurers to ensure they have additional back up cover for the provision of any healthcare that may fall outside of their work at the hospital (eg gratuitous work) or professional matters where your employer may decide not to represent you (e.g. Coroner Court appearance). This is generally available at no cost in these early years.
Once commencement of private practice, practitioners need to ensure that they notify their MDO/insurer to ensure indemnity cover is in place and commensurate with their new risk exposure.
I've had a request to provide a patient's records.
This question has a varied response based on your state. Generally speaking patients have a right under Commonwealth or State/Territory legislation to request access to their health records, or can authorise others to receive them on their behalf (for example, lawyers, and insurance companies).
Access to medical record requests should be done in writing, signed and dated by the patient. There are some limited circumstance in which health records can be withheld from patients, if you are unsure about disclosure we recommend contacting MIPS for advice
When should I not disclose information?
You should not disclose health information from a deceased patient’s medical records if you know the patient would have objected to the disclosure when he/she was alive. Such objection should have been noted in the medical records. It may not be that the patient has explicitly stated it but if you form a reasonable belief that the deceased would have objected to the disclosure, this is sufficient to refuse disclosure.
I need to prepare a death certificate
The death certificate is a legal document, and one that you need to ensure you are the appropriate person to sign before doing so eg a Dr responsible for the patient's care immediately prior to death or one who saw the deceased after the death.
Only sign the death certificate if the cause of death is known and the death is not reportable to the Coroner. Whilst it is not legally necessary to view the deceased, it is advised to do so prior to signing the death certificate
When is the death reportable to the Coroner? The legislation on this differs between states, the following are general inclusions:
- If the deceased person was a child or person in care or custody
- Follwing an accident that contributed to the death
- Any violent or unnatural death
- Any sudden death of unknown cause
- A death under suspicious or unusual circumstances
- When the deceased had not been seen by a Doctor recently
- During or following an anaesthetic and / or a medical procedure
If a healthcare practitioner has died, who can provide authority to release medical records?
If a doctor of other healthcare practitioner is deceased, his/her estate may still receive a request from a patient to release medical records. In these situations, the authority rests with the Executor or Administrator of the deceased doctor’s Estate. A power of attorney does not have authority to release the records because a power of attorney is no longer valid after a person dies.
If a patient has died, who can provide authority to release medical records?
If a patient dies you must still maintain their healthcare records. The person authorised to access the deceased patient’s medical records is the executor or administrator of the deceased patient’s estate. A power of attorney does not have the authority to request/release the deceased patient’s records because a power of attorney is no longer valid after a person dies.
You should always sight the will or the grant of probate (if available) and ascertain the identity of the person before releasing the information. Always attach a copy of the relevant documentation to the medical records of the patient.
What if a relative of the deceased patient requests medical records?
It depends on the purpose of the request. Doctors may be able to disclose limited information to immediate family members for compassionate reasons.
It is important to be cautious about releasing information where there may be disputes amongst family members.
How do I destroy patient records?
Having maintained the patient records as defined by the practice state (as general guideline consider maintaining adult records for seven years from last provision of health care and children until the child is 25), records should be destroyed securely. Paper based records may be scanned into a computer based system and destroyed within this timeframe.
I have been asked to provide a report for the coroner or police
A request in writing may come from the Coroner or the police officer acting on behalf of the Coroner requesting a report
MIPS is available to assist with the response to this request, ensure that assistance is sort as early as possible.
The report should be accurate, factual and based on your medical records.
An insurance company or solicitor has requested I provide a report
In your capacity as either a 'treating doctor' or an 'expert' you may be asked to prepare a report, before preparing the report ensure that you have the patient's written consent to provide the information. The consent should be in writing, signed and dated from the patient or authorised representative (eg parent or guardian).
The two reports mentioned have different requirements and require clarification.
You are not legally obliged to provide a report unless ordered to do so by a court or tribunal, but medical practitioners have an ethical obligation to assist patients in providing information which in some cases may require production of a 'treating doctor’s' report.
If you agree to provide an 'expert' report you must be aware of the ramifications of doing so, including your duties to the court as an expert.
Obtain correspondence and copies of the patient's medical records ensuring that the report is accurate and refers to the medical records.
In some cases you may be asked to give evidence in court based on your report or receive a subpoena to give evidence.
I have been asked/received a subpoena to be a witness concerning a patient I was / have treated
Read the subpoena fully and carefully to establish its breadth.
- Understand whether the subpoena is for you to give evidence or for you to provide patient documents to the court.
- The person being served the subpoena is obliged to only produce or include information that is set out in the subpoena.
Once you have worked out that the subpoena is valid and that you need to comply with it call MIPS to clarify the first practical step.
So long as the subpoena is validly provided, you must comply regardless of patient consent. You must also comply regardless of your availability (most times) although you can often take steps to work through these issues with the party who issued the subpoena. Look at when and where you need to do the steps involved in the subpoena.
Over the last decade, Australia has successfully achieved control of several vaccine preventable diseases with high routine vaccination coverage.1 There has been significant investment in the provision of cold chain guidelines and patient safety and risk minimisation education for vaccine providers. Breaks in the cold chain, lack of compliance to storage guidelines, exposure of vaccines to unacceptable temperatures and the concomitant loss of potency are all real concerns of which healthcare practitioners should be aware and they must be prepared to manage these adequately. Additionally, it must be considered that failures in technique or inadequate informed consent of the risks can lead to complaints and claims.
Frequently asked questions
What possible clinico-legal risks do I face in providing vaccinations?
In MIPS’ experience, such issues can be rare and may not relate to all members, however they may be associated more with the manufacturer of the vaccine. In the instances where conduct of MIPS members is called into question, it is usually regarding issues such as wrongful administration of a vaccine to an individual, incorrect dosage, inappropriate follow-up of storage, cold chain management guidelines, inadequate dissemination of information about expected and rare side effects, lack of informed consent and disclosure of material risks; as well as family or custody issues arising from one parent’s refusal to vaccinate a child. In these circumstances, there is a risk of a claim, complaint or an investigation (including regulatory) into your provision of healthcare, therefore it is always our advice that you alert MIPS if there is any occurrence of an adverse or unexpected outcome following a vaccination.
How can I reduce my clinico-legal risk when administering vaccinations?
Closely follow government advice from health authorities, the TGA, Medicines Australia, the National Immunisation Program, your College and the vaccine manufacturers. Always provide appropriate and adequate informed consent and good medical practice as defined by AHPRA. You must clearly document your consult advice, discussion and outcome in the patient’s health record.
What should I do about patients who refuse to be vaccinated?
Ultimately the patient or parent/guardian must provide consent for a vaccination. Many individuals may be concerned about the risks or they do not clearly understand the benefits to the individual or the overall public health interests. In some cases, Government benefits or access to childcare may be prevented if certain vaccinations do not proceed. Your time and good communication may be required in assisting hesitant patients and information together with the provision of further government and health sector evidence-based resources may be required. Your discussions and the patient’s ultimate decision needs to clearly documented in the patients record.
What should I do if a patient experiences an adverse event following administration of a vaccine?
Ensure you understand the recommendations stipulated by the Australian Health Department regarding how to manage Adverse Events Following Immunisation (AEFI) including anaphylaxis, and that you have the right equipment available. Document information about the vaccine you administer and report any adverse effects. Advice can be found in the Immunisation Handbook from the Department of Health
If a patient has an adverse result, notify MIPS.
Will MIPS cover me in case of an adverse event related to administering a vaccine?
The MIPS Indemnity Insurance Policy provides cover for civil liability and defence costs for matters arising from healthcare provided by you. Within the policy, healthcare is defined:
“Healthcare means: Any care, treatment, advice, service or goods provided for the physical or mental health of a person…” See Member Handbook for full definition.
The administration of vaccinations would normally fall under the definition of healthcare, therefore MIPS will provide assistance and indemnity to members, subject to the terms and conditions of the policy and Member handbook.
Key advice to mitigate clinico-legal risks
- Keep up to date with advice from the Government Health Department and other authorities
- Ensure correct storage of all vaccines
- Ensure staff are adequately trained in:
- Vaccine storage and vaccine cold chain standards
- Effective responses to patients’ concerns
- Effective disclosure of material risks and formal informed consent is gathered to vaccinate
- Clinical features, management and epidemiology of vaccine allergic responses
- The use of personal protective equipment
- Effectual communication approaches with patients
- Implement a formal monitoring routine to ensure proper equipment operation
- Audit your vaccine storage facilities regularly
- Implement adequate contingency plans to manage cold chain breaches and power breaks in your practice
- Implement open disclosure protocols to manage unexpected adverse events. Always contact MIPS as soon as an adverse event occurs to seek tailored advice to the situation.
Any queries, contact MIPS
Insurance cover is subject to the terms, conditions and exclusions of the policy. The information provided is general advice only and does not take into account your personal circumstances or needs. You should review the Member Handbook Combined PDS and FSG and/or contact MIPS on 1800 061 113, before making a decision. Information is current as at the date published.
Useful resources
- COVID-19 vaccine information for GPs
- COVID-19 vaccination training program
- ACRRM Vaccination Information
- Australian Immunisation Handbook
- Australian National Immunisation Program
- Australian Immunisation Register
- Australian Commission on Safety and Quality in healthcare – Australian Open Disclosure Framework
- National Adverse Events Following Immunisation (AEFI) reporting form
- National Vaccine Storage Guidelines ‘Strive for 5’
- RACGP Cold Chain Management
- RACGP Immunisation errors
- RACGP Standards for general practices (5th edition)
- RACGP - Improving vaccination cold chain in the general practice setting
- RACGP - National guide to a preventive health assessment for Aboriginal and Torres Strait Islander people (immunisation)
- RACGP - Infection prevention and control standards (Section 2.1: Staff immunisation)
- Deaker, R., Birden, H., Earnest, A., Page, S. L., & Clark, C. (2008). Improving vaccination cold chain in the general practice setting. Australian family physician, 37(10), 892.
Does MIPS' insurance cover refunds I make to patients or Medicare?
No, MIPS' indemnity policy does not cover members for any repayments/reimbursements you have to make to Medicare, a pharmaceutical benefits scheme or a private health insurer. Nor does it cover any refund you choose to make or have to make to a patient. See Section 35 of the Indemnity Insurance Policy under What we do not insure.
Author: Dr Chia-wen Yeh
In this article, Dr Chia Yeh, a dentistry graduate reflects on her experience stepping into the profession during the challenging times of the Covid-19 pandemic. With insights gained from personal experiences, Dr. Yeh imparts advice to new graduates, providing actionable strategies to overcome the constraints of limited clinical exposure, adeptly seek assistance when needed, foster a human-centric approach to patient care, and cultivate a harmonious 'family business' mentality within the workplace.
As a fresh graduate from the first Covid cohort, stepping into dentistry in 2021 was a shock to the system. With Covid restrictions in place at dental school, it was a far cry from the pace and reality of dentistry, and it did not provide sufficient clinical exposure to develop the required skillsets.
As with any other profession, there is a period of adjustment post-graduation. Put simply, one’s attitude determines the final result. I wish I could tell my graduate self to normalise the discomfort I felt, to commit to sharing honest experiences, to give generously and not to shy away from that discomfort.
While the world was in various degrees of lockdown, I focussed on investing in my learning and remaining flexible in the aspects of dentistry I was able to practise. I was fortunate enough to have found an employer that truly wanted to provide mentorship and ensure I inherited in-house techniques developed over his 30 years in the profession.
Two years later, I am happily working in alignment with my moral compass. I am being mentored by my employer, which started out as university supervision on steroids – in a well-received way, of course. I was so glad he was willing to do the last of my deep caries debridement or would happily come into the surgery to help me secure that band over the disto-lingual corner.
That said, the transition wasn’t always rainbows and sunshine. There were often tough days, if not extended periods of difficulty. Not to mention the 7pm finishes. Emotional exhaustion, patient dissatisfaction and falling short of one’s own expectations all contribute to feeling like an imposter in the profession. This I can relate to all too well.
Here are three pieces of advice I wish I had known from day one:
- Learn to ask for and welcome assistance.
A new graduate simply does not have the same confidence and clinical aptitude as a dentist with 30 years of experience. Instead, be realistic and allow each patient you engage with to deepen your diagnostic and restorative skillset.
Learn to confide in and seek feedback from friends, family, and colleagues. If you don’t know, ask; if you can’t do it, learn; once you know, practice; if mistakes are made, rectify, and the cycle continues.
- Understand the importance of a human-centric workplace.
Your employer should embody and demonstrate this value in their dental care provision. They are essentially your immediate environment and will be the main person who aids your transition. I constantly remind myself; my patients are more than just a mouth.
If I ever find myself on the brink of practising without empathy, a helpful mind-shifting sentence is - “How would I want my family or loved ones to be treated by their dentist?” I then provide treatment in that manner. Be vigilant about this, as it will become subconsciously embedded in your value system over time.
- Enter your workplace with a ‘this is our family business’ mentality.
As you spend over 40 hours a week at work with your colleagues, you need to think about them as your second family. In addition to trying to grow your clinical skillset exponentially, it’s easy to become hyper-focussed on me, myself, and I. With a ‘family ownership’ mentality, you invest in and appreciate your colleagues, and hold yourself accountable for upholding the workplace culture.
Finally, as a Charles Sturt Graduate (2020), I leave you with this thought:
The Wiradjuri phrase yindyamarra winhanganha means the wisdom of respectfully knowing how to live well in a world worth living in. ~ Charles Sturt Ethos
Introduction
Australia faces ongoing shortages of many medications, especially antibiotics, resulting from the COVID-19 pandemic, and increased demand and supply chain challenges. The use of alternative medicines or treatments can raise potential medico-legal issues for practitioners.
We explore the current and evolving situation in Australia, how to protect yourself medico-legally, and provide some resources to assist you to navigate prescribing unfamiliar or sub-optimal alternatives.
What medications are currently in short supply?
Since January 2019, all suppliers of medications in Australia must notify the Therapeutic Goods Administration (TGA) if they believe there’ll be insufficient supply to meet demand over the next six months. In March this year, there were 380 medicines listed as being in short supply including approximately 60 antibiotics.
Availability of medications can be intermittent and vary across the country. You can visit the TGA website medicine shortage reports database for an up-to-date list of all medicines in short supply, and read current information and updates specifically related to antibiotic shortages.
What is the medico-legal risks associated with medication shortages?
When patients are prescribed alternative medications which are less efficacious than the preferred unavailable medication, there is an increased risk of harm due to untended or unknown side effects or complications. This can lead to an increase in claims and complaints. For example, at the time of writing, there are currently shortages of certain strengths of Warfarin and switching brands may increase the risk of clots or bleeding. As you may be less familiar with substitute medications, including their side effect profiles, claims may also arise from allegations of failure to adequately warn patients about side effects or complications.
What can you do to mitigate the risks?
First, and most importantly, you should seek expert advice if you’re unsure what to prescribe as a substitute for any medication. This may include consulting clinical guidelines or speaking with other specialists or pharmacists.
Second, you should familiarise yourself with the risks of substitute medicines so you can provide sufficient information to patients about any side effects or complications that may arise.
Third, if substitute medicines are less efficacious or increase the risk of complications, you may need to consider whether your patient should be followed-up, to ensure that they are closely monitored for side effects or complications.
Finally, it’s essential that the circumstances in which substitute medicines are prescribed are clearly documented in the medical record. This is important if your records are scrutinised in response to a claim or complaint about a poor patient outcome and will assist you to recall why you prescribed what you did.
For example, your record should clearly state the name of the preferred medicine and that it was unavailable at that time. The record should also state the basis upon which you prescribed the substitute medicine, any information provided to the patient about that substitute medicine, any specialists or guidelines consulted, and any information or agreed plans made with the patient about follow-up consultations.
In summary, medicine shortages regularly occurred before the pandemic and are likely to continue into the future. Knowing how to manage them, what to document and where to go for information and advice is critical.
We’ve brought together our medico-legal experts for a special roundtable event dedicated to answering questions that matter the most to you.
Overview
Do you have medico-legal questions that you’d like answered? Each day our medico-legal advisors receive a broad range of enquiries, and we receive many questions during our educational events to which we don’t always have time to answer. So, we’ve brought together our medico-legal experts for a special roundtable event dedicated to answering your specific questions.
You’ve previously told us that you want to know more about:
- Mandatory reporting
- How should I respond to an Ahpra notification?
- Release of health records, particularly requests from third parties, including insurers
- Treatment of children and managing requests for records when parents disagree
- Accepting gifts from patients
- Treating family and friends
- How should I best manage my own health and wellbeing?
Learning outcomes
At the end of this webinar, participants will be able to:
- Identify common medico-legal issues of concern to medical practitioners.
- Discuss how to respond to and manage common medico-legal issues in clinical practice and how to avoid common pitfalls.
- Recognize available guidelines and resources to respond to medico-legal issues.
MIPS resources
Medico-legal roundtable webinar questions and answers
Many themes and/or your specific questions were addressed in the live webinar event.
Should you wish to revisit the live event, here is the link medico-legal-roundtable
The following question were unable to be addressed due to the time constraints of the webinar and the following general advice is provided.
Remember to contact MIPS directly on 1800 061 113 for specific advice about your particular circumstances.
Question regarding application of duty of care in detaining patients against will in ED - especially in cases where they are acutely drug/alcohol intoxicated.
Medical practitioners as a rule do not have the ability to legally detain patients against their will. The only time where it is legally appropriate, is when a patient is under a treatment order (temporary or otherwise) for psychiatric reasons under state or territory mental health legislation. South Australian members have recently raised the scenario whereby the police arrest a person and attend the ED to have them psychiatrically assessed as to whether they need to be admitted as an involuntary patient. At this point the patient is under a temporary treatment order until they are assessed and can be legally detained. It is reported however, that the police, on the basis of a memorandum of understanding (MOU) between the hospitals and SAPOL, will then leave and instruct the staff that if a formal treatment order is not deemed appropriate to, 1. Contact police to reattend, and 2. Detain the patient until they arrive. MIPS’s advice has been that both of these actions are inappropriate, and members have been advised to contact their hospital lawyers to outline their concerns and have the terms of this MOU revisited.
Detention of acutely intoxicated or drug-affected patients should be left to the police unless staff are at risk.
Suicides of and homicides done by mentally unwell patients are rare and unpredictable events. Can psychiatrists be held responsible for such actions?
Unfortunately, there are no crystal balls, and as noted in the question, these events can be unpredictable. This is recognised by the coroner, and the law, both of whom seek the opinion, and are guided by, the opinion of medical experts in this field. In both situations, the salient issue is whether a practitioner enquired about, and/or took note ‘red flags’ that could be considered to be predictive of subsequent events. The coroner has, in the past, been critical of practitioners for falling below the expected standard of care in this area and this has subsequently become the basis of successful civil claims.
What would be considered OK and not OK re: gifts from a patient and how best to decline any presents that are inappropriate?
Gifts represent a potential conflict of interest. They may be offered by either patients or individuals/companies for marketing reasons. Personal gifts need to be assessed carefully taking into consideration issues such as the type and monetary value of the gift, the reason for the gift, the point in time that the gift is offered in relation to treatment, the frequency of gifts, and whether it could be interpreted by a third party that there is evidence of coercion. Refusing of gifts can be difficult and should come with the explanation that it is against the recommendations of the regulator. All gifts accepted or refused, should be documented.
With regards to gifts for marketing reasons, Ahpra’s code of conduct advises in section 10.12.6, that good medical practice involves:
Not asking for, or accepting any, inducement, gift or hospitality of more than trivial value, from companies that sell or market drugs, appliances or devices, or provide services that may affect, or be seen to affect, the way you prescribe for, treat or refer patients.
You should adopt a common sense and careful approach. If in any doubt or concern, please contact MIPS.
How should I respond to an Ahpra notification?
Please contact MIPS immediately to discuss your situation and receive personalised advice.
A comment- an Ahpra notification is a stressful time. It would greatly relieve this and give confidence to the member if the MIPS advisor could make time to MEET face to face rather than provide advice by phone or email. One sometimes gets the impression that MIPS advisors are not totally committed and engaged in this aspect of their work.
MIPS recognises that Ahpra notifications are stressful, and in fact as mentioned in the webinar, our Chief Medical Officer’s PhD focuses on this very issue. MIPS is often able to arrange in person meetings with members, although this has become less common since the onset of COVID. Member’s time is often better served by videoconference, however if you wish to meet face to face, please let MIPS know.
I have found a Fellow GP is very incompetent, Can I report him to Ahpra?
Members are bound by Ahpra’s mandatory reporting guidelines Mandatory-notifications and members should be aware that they have an obligation under national law to comply. We always recommend you always seek the advice of MIPS prior to making a mandatory report to ensure the report is valid. Ahpra will take action against a notifier if their claims are deemed to be vexatious.
For further information see MIPS Practice Note mandatory-reporting-101 and do-i-need-to-self-report-to-ahpra
What is the most common complaint to Ahpra stratified to position and area worked?
This information can be found in Ahpra’s annual report (health-check-ahpra-releases-2122-annual-report). It provides an analysis of the type on notifications received for each practitioner craft group involved.
How do you deal with staff members in Workcover claims in privatised public clinics where we are both employed, and the employer is the alleged party not providing safe working environment?
Potentially this can be awkward and tricky scenario. Members should remain professional and objective, provide factual and truthful statements in reports, and let the system run its course with the workers compensation insurer being the ultimate decision maker. Recommendations made in order to improve the safety of the work environment need to be followed. Members, as always, are encouraged to consider whether it is appropriate for them to be providing care to work colleagues, as your treatment of the patient may blur boundaries between personal and professional lines, or between therapeutic and employment lines.
Where do I stand performing consultations for my parents as patients? Father had a stroke, mother severely hearing and vision impaired & just had a severe burn, and speaks / understands little English. Both parents in mid-eighties. Claiming Medicare for the consultations. Prescribing meds or medical investigations under PBS or Medicare?
The issue at the heart of this topic, is whether a practitioner can maintain an objective point of view, take a full objective history, examine the patient fully if indicated, and provide the same level of objective care that they would provide to any other patient. The very real challenges presented by this situation have led Ahpra to provide the following guidelines:
4.15 Providing care to those close to you
Whenever possible, avoid providing medical care to anyone with whom you have a close personal relationship. In most cases, providing care to close friends, those you work with and family members is inappropriate because of the lack of objectivity, possible discontinuity of care, and risks to the patient and doctor. In particular, medical practitioners must not prescribe Schedule 8, psychotropic medication and/or drugs of dependence or perform elective surgery (such as cosmetic surgery), to anyone with whom they have a close personal relationship. In some cases, providing care to those close to you is unavoidable, for example in an emergency. Whenever this is the case, good medical practice requires recognition and careful management of these issues.
MIPS’s advice therefore is to always avoid this situation if at all humanly possible. It is increasingly likely that it will be detected if you bill Medicare or write scripts for patients who are clearly identifiable as family. This may then trigger an investigation and/or a notification to Ahpra.
When a patient complains to AHPRHA about a doctor, what are the average times until doctor notified, for a relatively minor complaint where the doctor is at fault, admits it, minimal/no harm to patient, how long is this to finalise the process time wise. As uncertainty of outcomes for doctors that have had 'AHPRHA complaints' has added lots of anxiety of the unknown and often all turned out well but not been a please 3-9 months.
The time taken to resolve complaints can vary, depending on the nature of the notification, the complexity of the clinical scenario involved and, unfortunately, in which state the notification is made. Ahpra has recently worked very hard to improve their performance in this area and to deal with “minor” complaints as quickly as possible through a new triaging process, thus creating less uncertainty for practitioners. An improvement has been evident to MIPS, however MIPS continues to advocate on members behalf with Ahpra in relation to this issue.
What do you do with patient who didn't respond to recall or abnormal results?
Practitioners have an obligation to take reasonable steps to follow-up abnormal results or unresolved symptoms. It is beyond the scope of this answer to set out the basis or scope of that obligation. However, how you respond when a patient has not responded to a recall or reminder depends on the nature of the abnormal result and the potential implications for the patient. For example, significantly more effort should be exerted to attempt to follow up a patient with a positive faecal occult blood test or an abnormal mammogram, than a patient who has failed to attend to their FOBT or mammogram screening. Generally, you should attempt to contact using any means provided by them for that purpose. However, in the case of a serious abnormal result, it may sometimes be appropriate to contact the police or family in an attempt to find the patient, without disclosing health information. A robust follow up/recall system is essential for all practitioners. You should ensure that all communication attempts are documented accordingly.
When patient posting defamatory comments online, like Google reviews, what options open to us in response?
MIPS has previously provided information to members about this difficult and challenging issue. We refers members to our previous articles: “Dealing with bad online reviews” and “Online reviews and defamation”.
Is it acceptable to write scripts, order tests with a Medicare rebate and refer oneself?
First, regarding self-prescribing, it is important to understand that the law is complex and varies across Australia. In Victoria, there is a blanket prohibition on self-prescribing. In NSW, Queensland, ACT, and likely in WA/NT, there is a prohibition on self-prescribing Schedule 8 drugs, with some jurisdictions also prohibiting the self-prescription of restricted Schedule 4 drugs too. A breach of these prohibitions may amount to a criminal offence.
While there is no prohibition on ordering tests or referring oneself to a specialist, every practitioner should have their own GP and should be mindful of the Medical Board of Australia’s advice, set out as follows:
11.2 Your health
Good medical practice involves:
- 11.2.1 Having a general practitioner.
- 11.2.2 Seeking independent, objective advice when you need medical care, and being aware of the risks of self-diagnosis and self-treatment.
- 11.2.3 Seeking help if you are suffering stress, burnout, anxiety or depression.
- 11.2.4 Making sure that you are immunised against relevant communicable diseases.
- 11.2.5 Not self-prescribing.
- 11.2.6 Recognising the impact of fatigue on your health and your ability to care for patients, and endeavouring to work safe hours wherever possible.
- 11.2.7 Being aware of the doctors’ health program in your state or territory which provides confidential advice and support through the doctors’ health advisory and referral services.
- 11.2.8 If you know or suspect that you have a health condition or impairment that could adversely affect your judgement, performance or your patient’s health:
- not relying on your own assessment of the risk you pose to patients
- consulting your doctor about whether, and in what ways, you may need to modify your practice, and following the doctor’s advice.
What is my requirement to inform authorities (Police) if a patient claims injury different to the obvious wound? In this case patient claims crushed finger in door while wound is full of rat shot pellets and gunpowder!
Your paramount consideration in this situation is to maintain the confidentiality of your patient’s health record. You should clearly document your history and physical examination findings in the patient’s record. You should also record your likely diagnosis and the likely mechanism of injury, particularly if you suspect that you may be called upon to give evidence about the injury in court at a later time. You may release information to the police in the circumstances outlined in our response to question 18 below.
Does Ahpra have a compassionate, nonthreatening, supportive pathway to respond to concerns regarding impaired doctors /nurses who have yet to incur patient harm and who simply need a guiding hand? In which case, would the reporter of the concern be anonymous?
This is a difficult but important issue. In response to recent research findings uncovered by an Expert Advisory Group commissioned by Ahpra about the impact of Ahpra notifications on practitioners’ health, new processes have been developed for the management of allegedly impaired practitioners. Members who are uncertain about their mandatory reporting obligations with respect to allegedly impaired practitioners should consult the Ahpra guidelines and should contact MIPS for further advice. Essentially, the threshold for reporting is high. You should only report a practitioner with an impairment if you believe that they have put the public at risk of serious harm. To the extent possible, Ahpra will maintain the confidentiality of the notifier. However, in circumstances where notifications are appealed, the practitioner may be entitled to information about the notifier as a matter of procedural fairness.
Legally, who is responsible for follow up investigations and ongoing management plan once patient is discharged from emergency department to the primary care for ongoing clinical care? Primary care provider i.e GP or emergency physician?
This is a great question and a difficult one to succinctly answer, as it will depend on the circumstances of the case. In general terms, the practitioner or health service who has ordered the test or investigation has the responsibility to follow up the results and to communicate those results to the patient. However, if the hospital is unable to contact the patient, the hospital may notify the GP about the outstanding test results and the need to communicate these results to the patient and arrange ongoing care. Alternatively, the discharge summary may specifically request that the GP follow up test results with the patient. In these circumstances, a failure by the GP to follow up the test results could give rise to a claim against the GP. The likelihood of a claim arising will also depend on whether any test results are abnormal and the seriousness of the implications for the patient of not knowing the abnormal test result.
Need general advice about Telehealth consultation when we don't know the patient and we are new at the clinic too.
Ahpra has produced guidelines concerning telehealth Technology-based-consultation-guidelines.aspx. These are likely to be updated shortly, so keep an eye out for further information about this from Ahpra and MIPS. In addition, Medicare has specific requirements around billing in relation to telehealth, so please ensure you familiarise yourself with these requirements and contact MIPS if you are uncertain. Also, please note MIPS telehealth definition and policy requirements.[OB1]
What to do when the Police requests information?
In general terms, we usually recommend that our members request a summons, warrant or subpoena from the police before disclosing confidential patient information, as this protects the member from allegations that the member has breached the patient’s right to privacy. However, in many states, the police may request information on behalf of the coroner. In these circumstances, you should ask the police to provide written evidence that they are investigating a death on behalf of the coroner. The coroner has powers in all jurisdictions to direct a person to product documents in connection with the investigation of a death. Finally, some states also allow health practitioners to disclose information to the police without the patient’s consent and without a summons, warrant or subpoena if it is for the purpose of a law enforcement function (see, for example, Health Privacy Principle 2.2(f)(i) under the Health Records Act 2001 (Vic). However, in these circumstances, we recommend that you contact MIPS beforehand. Please refer to our Practice Notesreport-requests-and-subpoenaprivacyconf
What recourse do you have if a colleague makes false claims about you to Ahpra?
Receiving a notification from Ahpra is incredibly stressful, particularly if the notification is based on false claims. Ahpra has made progress in recent times to better triage notifications and screen out notifications that may be vexatious in nature. MIPS can assist you with your Ahpra notification in accordance with the terms and conditions of your MIPS Indemnity Insurance Policy.
See attached How-we-manage-concerns/Vexatious-notifications.aspx
Can you please advise on how long medical practitioners are required to keep medical records for, and whether time is measured from last contact-date with each individual patient, or from the date of retirement of the practitioner? Also any guidelines on what medical practitioners are required to do when patients or third parties request information from you about past consultations or treatments. When reviewing performance with patients and measuring outcomes with patients is the medical practitioner placed in an ethical dilemma with respect to informed consent from the patient?
Health privacy legislation differs across the country. However, in general terms, you should keep records for seven years after last seeing patients or for seven years after seeing any patient under the age of 18 years (ie. up until 25 years of age). MIPS has previously provided guidance on how to manage requests for information from third parties See our Practice Note documentation-and-confidentiality . Finally, most states allow retrospective review of health information without the patient’s consent for the purpose of monitoring, improvement or evaluation of health services (see, for example, Health Privacy Principle 2.2(f)(i) under the Health Records Act 2001 (Vic).
What happens re indemnity if a GP calls you as a specialist over the phone for advice, but they have an adverse outcome? They tell you the history, but you may not have been given the full story. E.g. told by GP patient has a cough but advise there is nothing on report for the chest xray but the patient develops lung cancer? Would you be held liable and not covered under medical indemnity if you weren't given the full story or if the GPs account of what was said over the phone was different to your recollection? Is it correct it is always better to document the conversation but what happens if their documentation of the conversation turns out to be different to your own? I know hard to answer these types of questions with broad statements.
This is a great question. The issue of proportionate liability arises frequently in the defence of our members’ claims. Where it can be shown that more than one doctor contributed to an adverse outcome, then a court will hold both doctors liable to an extent proportional to the relative contribution of each doctor’s negligence. If you, as the specialist, are sued because of allegedly negligent advice provided to the GP in the care of the patient, then this would likely be covered under your MIPS Indemnity Insurance Policy. In your defence, MIPS would likely argue that the GP ought to have known that you, as the specialist, were limited in the advice you could provide without formally assessing and examining the patient yourself. That said, there are some practical steps you can take to minimise the risk of a claim or complaint arising in this circumstance. First, you should carefully consider the nature of the advice that you can safely provide to a GP about a patient you have not examined and should be mindful of the limitations of relying on a second-hand history alone. Second, in assisting the GP, you should carefully advise the GP to refer the patient to you if they are ongoing concerns. Third, you should carefully document the date and time of the conversation, the history provided to you by the GP and the advice you provided to the GP, including any safety netting.
Health practitioners are legally bound to provide a reasonable standard of care to their patients. However, determining what is reasonable can be more challenging. For example, how many times must a practitioner follow up with a non-compliant patient? How many tests are required to adequately investigate a particular set of presenting symptoms? Answers to these questions can vary depending on the specific circumstances of the clinical situation at hand. Complexity can arise because no two patients are the same and can range in the degree to which they follow their doctor’s recommendations and advice. Reasonable practice is never measured in real time, but by courts in hindsight. Therefore, it can be difficult for a doctor to know how much to investigate or follow up symptoms tests, results, referrals, or failures to attend.
In this webinar, our expert panel of clinical and legal experts will delve into the scope of the duty of care of health practitioners and provide an update based on recent Australian court decisions, including those lead by MIPS.
Learning outcomes
At the end of this webinar, attendees will be able to:
- Discuss recent Australian judgements which have impacted the interpretation of health practitioners’ duty of care expectations and responsibilities.
- Identify the medico-legal frameworks that impact the extent or scope of the duty of care owed by healthcare professionals to their patients.
- Articulate effective strategies to bring back to their clinical practice to minimise medico-legal risk.
MIPS resources
