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?
Q & A
Many themes and/or your specific questions were addressed in the live webinar event.
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 Ahpra 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 'Ahpra 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: “Navigating online reviews and defamation” 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.
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
