Slow, unaccountable and riven: Is the national healthcare watchdog sick?

Just over a year ago, controversial homebirth midwife Martina Gorner was permanently banned from the profession after an autopsy found a clear link between the death of a baby and her delays in sending the mother to hospital.

The ban followed a Victorian Healthcare Complaints Commissioner investigation which found a litany of breaches, ranging from botched record-keeping to failing to provide services in a safe and ethical manner.

“Her actions placed multiple women and their babies at serious, arguably avoidable, risk,” then-acting commissioner Elizabeth Langdon said in December 2021.

But this was not the first time authorities had been warned about Gorner, and the case speaks to broader issues with the watchdogs that are supposed to protect the public from incompetent, unethical or unfit health professionals.

The Age and Sydney Morning Herald have interviewed dozens of investigators working in state regulators and the Australian Health Practitioner Regulation Agency (AHPRA), the national body tasked with registering – and disciplining – doctors, surgeons, nurses and other health professionals.

They raise concerns about every step of the regulatory process, from delays by AHPRA staffers investigating alleged misconduct to a lack of transparency and loopholes that allow doctors to maintain a clean record even when complaints are found to have merit.

In Gorner’s case, an AHPRA investigator, who could not be named because they were discussing confidential information, said they had assessed a complaint in 2016 from a gynaecologist about her conduct during a home birth. At that time, there were already at least two other complaints into Gorner constituting what is known as a “cluster file”, the investigator said.

The allegations ranged from falsified records to a failure to properly check the vital signs of a foetus.

After assessing the available evidence, the investigator put together a report for the nursing and midwifery industry board, which AHPRA works with, recommending Gorner’s registration be suspended immediately. The recommendation was knocked back.

“The board said, ‘It happens to the best of us, let’s give her the benefit of the doubt’,” said the investigator, recalling the finding. “I had a strong feeling this was inappropriate. Unfortunately, I was proved to be right.”

There is no avenue for investigators to challenge board decisions, and no record of complaints made by the public when no action is taken. Investigators say this demonstrates the lack of transparency and accountability in how the healthcare industry is regulated.

The Age and Sydney Morning Herald could not contact Gorner.

On top of these concerns about the performance of the regulators, this masthead this week also revealed chronic problems within AHPRA itself, ranging from workplace bullying to under-resourcing and systemic racism. The scale of those problems left experts warning the public is at risk.

AHPRA declined an interview, but a spokesman said around 85 per cent of investigator recommendations are accepted by boards, and pointed to a range of policies and initiatives to improve operations.

Dr Tim Edwards says AHPRA is failing to protect patients.

“AHPRA has managed more cases, about more practitioners, each year,” the spokesman said. “Like many organisations, AHRPA also dealt with COVID-19-related resource challenges which had an impact on our performance.”

Dr Tim Edwards, president of the Australasian Society of Aesthetic Plastic Surgeons, says it took media reports for AHPRA to respond to concerns about “cosmetic cowboys” that had been raised with the regulator for years. He worries what the lack of action in his industry means for other sectors.

“We’re one small part of AHPRA’s overarching responsibility, but I think we’re symbolic of a great lack of process by the regulator,” he said. “The public deserves safety in their surgery.”

There have been successive reviews of AHPRA’s effectiveness since it was established more than a decade ago, but there are now growing calls for a more thorough government probe in the form of a royal commission, backed by the Australian Medical Association Victoria and other stakeholders.

“AHPRA’s reputation is now at a point where it’s got really practical and real consequences for its ability to function,” says Maurice Blackburn’s head of medical negligence in Victoria, Tom Ballantyne. “We’re now at a point where this has to be acknowledged and something drastic has to be done to fix it.”

‘Falling short’

AHPRA was established in 2010 as part of an ambitious national plan to replace individual regulators in each state, with the exception of NSW and Queensland, which still use separate systems under a “co-regulatory” model.

The agency has a range of responsibilities, including maintaining professional registrations and investigating complaints from the public or hospitals about the conduct of health practitioners.

While AHPRA’s key mandate is to protect the public from harm, this must be balanced with giving health professionals a fair hearing. A growing body of evidence suggests the watchdog is falling short of both expectations, as neither patients nor health practitioners are happy.

A Senate inquiry found last year the current system was “opaque and difficult to navigate” and despite efforts to improve, “delays, disappointment, confusion and stress” persist.

Carol Bennett was the chief executive of the Consumer Health Forum in 2009 and remembers the fierce lobbying by the healthcare industry when AHPRA was set up, pushing fears an over-zealous watchdog would unfairly threaten their livelihoods.

Now she says too many concessions have been made and the current model leans towards protecting practitioners. She has called for more transparency in how the regulator deals with misconduct so the public can make informed decisions about their healthcare.

“We were pushing for an organisation with real consequences, real teeth, real transparency and real accountability,” says Bennett, also a former AHPRA board member. “I think it falls short of what we would have liked to have seen. It needs to be more robust, it’s a bit of a no-brainer.”

‘Accountable to nobody’

The notifications teams are responsible for dealing with several thousand complaints about health practitioners each year, which range in severity from vexatious and unfounded to serious and critical.

Serious complaints can be escalated for immediate action, where a practitioner can be quickly stood down or placed under conditions if there is an imminent risk to the public.

Those in the grey zone of severity are investigated in a process that can take weeks, months and sometimes years. Almost all investigators interviewed agreed the processing time was too long, creating dangerous outcomes for both patients and doctors.

Delays in assessing cases can allow dangerous health practitioners to continue operating, but doctors under investigation waiting to see whether they will be punished also suffer from the delays.Credit: Andrew Quilty

Under the law, there are no statutory timeframes within which AHPRA is bound to complete an investigation. While there is a requirement to provide written updates at least every three months, the regulator accepts this regularly does not happen.

Following this masthead’s reports this week, more than 100 emails were received detailing allegations of serious complaints lodged by patients – such as sexual assault or near-death experiences – where investigations were plagued by delays.

Health practitioners also described experiences of unreasonable timeframes for administrative work to be completed by AHPRA – in becoming registered or during investigations – causing them to lose job opportunities or give up on the profession altogether.

As new middle-management teams have shuffled through AHPRA, staff say each tried to bring a new approach to remodelling the process to make it either more efficient or effective. But some of these efforts have led to a blow-out in processing times and created a backlog of languishing cases.

As revealed this week, AHPRA launched “operation reset” in late 2019, which involved redistributing caseloads and using key performance indicators to encourage staff to work quickly to close cases. While some investigators interviewed said the targets were reasonable, the majority said they were “ridiculous”, “impossible”, “challenging”, “unmanageable” and “dangerous” as pressure to close cases meant important work was rushed.

“At some point it becomes cartoonish, you’re setting a goal you know people can’t meet,” said one investigator.

Delays, lack of transparency: Melbourne

In July 2022, a nurse at a major teaching hospital in Melbourne, Eastern Health, assaulted a patient. The incident was caught on CCTV, showing the nurse throwing the patient – who was shouting but had their hands by their sides – across the room. Eastern Health terminated the nurse and lodged a complaint with AHPRA more than one month later. However, the nurse remains registered and AHPRA’s investigation is ongoing. People familiar with the incident are concerned the nurse could get a job at another hospital, as there is no public record of the assault or the fact an investigation is underway.

Delays can allow dangerous health practitioners to continue operating, but doctors under investigation waiting to see whether they will be punished also suffer from the delays. Independent forensic psychiatrist Dr Jacqueline Rakov treats doctors being investigated by AHPRA, and is concerned about the impact on their mental health.

She says the lack of information provided by the regulator about the status of their investigation has contributed to suicides – a claim supported by other doctors, including professor Paddy Dewan of the AMA Victoria, and Jaswinder Sekhon, a lawyer who represents doctors.

Dr Rakov is calling for an overhaul in the way AHPRA operates, including the introduction of strict time limits for investigations and regularly scheduled updates, as well as support services for those under investigation.

“People are left in this really horrible purgatory,” she says. “My biggest disbelief is how AHPRA seems accountable to nobody.”

‘Inherent conflict’

Once an investigation is completed, a report is submitted to one of AHPRA’s 15 industry boards, each dealing with a different medical profession, which decide on the appropriate next steps.

These boards consist of health practitioners and community representatives, but investigators claim there are different risk appetites and a lack of consistency in determining outcomes. “It can be subjective,” said one investigator.

“Doctors are a little bit like police, they can be a little bit too kind to their fellow peers,” said one former AHPRA board member.

When a doctor is found to be unfit or engaged in misconduct, members of the public should be able to find this on their AHPRA profile online. This can include a reference to a caution, re-training or conditions imposed on their practice.

Mary Heffernan lodged a complaint about her operation with Munjed Al Muderis. Even though an investigation found he used the wrong implant and failed to respond to her pain, his record remains clear.Credit: Steven Siewert

According to AHPRA’s latest annual report, around 70 per cent of complaints result in “no further action”. However, investigators claim this ruling can be misleading and is often used by insurance companies and practitioners to claim innocence, when in fact a range of problems surfaced throughout the investigation. “It’s a shield and a sword that people wave around,” said one investigator.

Dr Anne Tonkin, Medical Board of Australia chair, told the Senate inquiry last year that “no further action” doesn’t mean that “nothing has happened”, as practitioners can take steps during the investigation process to avoid disciplinary action.

While AHPRA welcomes proactive action by doctors, investigators believe this has created a system of “loopholes” where insurance companies can assist health practitioners in keeping their records clean.

Example of education loophole: Munjed Al Muderis

Celebrity surgeon Munjed Al Muderis completed a total knee reconstruction on Mary Heffernan at the Macquarie University Hospital in October 2020. After the operation, Heffernan raised concerns about pain and swelling on multiple occasions, but was told there was nothing wrong. Eventually, she sought a second opinion and the new surgeon found the prosthetic was loose and the procedure needed to be completely redone. NSW’s health regulator, the HCCC, investigated and found “an inappropriate implant was used and that the diagnosis was missed”, Heffernan’s “ongoing severity of pain should have prompted a closer evaluation”, and “important information” was missing from Dr Al Muderis’ pre-operative review. Al Muderis completed additional training and his record remains clear. More than two years after the surgery, the Medical Council of NSW is continuing to investigate Al Muderis, but Heffernan has only been told “this process may continue to take some time”.

If a surgeon is accused of negligently operating on a patient, the insurer will proactively provide a short training course before the industry board has made its decision on whether to reprimand them. AHPRA is legislatively obliged to assess the future risk to the public of a practitioner, not to penalise doctors for past misconduct, so when the board learns of the training, the decision switches from “re-education” to “no further action”, and no penalty is recorded.

AHPRA can also strip practitioners of their registration through a process that is open to legal challenge.

The AHPRA spokesperson said the board has discretion in determining whether they believe it is necessary for re-education to appear on a health practitioner’s online profile. They said AHPRA is currently accepting submissions on what information should be available on the public register, and pointed to new laws passed in October that allow warnings about risks associated with people who are the subject of investigations or disciplinary hearings.

“While these powers will only be used rarely in cases where there is a serious unmanaged risk to public health and safety, they underline the new Paramount Principle which makes the protection of the public the paramount consideration in all decision-making.“

For the investigator who worked on Gorner’s case years ago, progress is far too slow. They backed calls for greater transparency about complaints.

“Would it have saved lives? I don’t know. It’s really hard to speculate,” the investigator said. “But is there room for improvement at AHPRA in terms of board decision-makers? Yes.”

Liam Mannix’s Examine newsletter explains and analyses science with a rigorous focus on the evidence. Sign up to get it each week.