Bowen Buchbinder Vilensky

What Triggers a Disciplinary Action?

by Leslie Buchbinder
Medical Forum magazine, September 2011

Legal medical specialist Leslie Buchbinder outlines the main considerations – and how public interest is often overlooked. 

What happens when a doctor fails to live up to the professional expectations of a patient? 

While the Medical Board of Australia is obliged to supervise those registered with it, not every alleged failure of care or professional behaviour becomes the subject of disciplinary proceedings. Instead, there are three sets of considerations which are taken into account when considering the need for disciplinary action.

The legal framework 

The first of these is the legal framework. Circumstances which usually trigger possible action are breaches of professional conduct, including unprofessional conduct, professional misconduct and notifiable conduct, as defined by the relevant Codes and Guidelines and the Registration Standards. 

Unprofessional conduct covers such matters as conviction for an offence that may affect suitability to continue practice, as well as excessive or unnecessary service provision and accepting inducements for referrals to another health care provider. Professional misconduct relates to standards of treatment substantially below those reasonably expected – typically over a period of time or several cases. And notifiable conduct concerns intoxication and sexual misconduct while training or practising as a doctor, which places the public at harm. 

Actions may also be considered where a practitioner’s health becomes impaired in a way that could affect their professional capabilities. . 

The actual facts 

The second set of considerations are the actual facts of a matter. Most of the focus of any disciplinary proceeding is on determining what did or didn’t happen. Even if there is a ‘primae facie’ (at first sight) case against a doctor, if there is insufficient evidence or little likelihood of a conviction, this will also influence the likelihood of disciplinary proceedings. 

In cases of serious allegations a matter will be heard in the Western Australian State Administrative Tribunal, where Rules of Natural Justice require that the doctor who is the subject of the disciplinary inquiry be given reasonable opportunity to know the allegations against them, to be heard in relation to the allegations and to be represented by a lawyer. 

The public interest 

The third set of considerations determining possible disciplinary action is public interest. Public interest factors include: the seriousness of the alleged misconduct; the risk of harm to the public; the legal and other costs likely to be incurred in proceeding; whether the doctor concerned has a history of non-compliance with accepted standards of clinical and professional conduct; and whether any concerns can be allayed by taking action other than disciplinary action. 

Even when evidence is very likely to establish misconduct, it may clearly be not in the public interest to pursue the matter. For example, it could be argued that a doctor caught driving over the limit and who abuses a Police officer has brought the profession into disrepute, but there would be little public interest in taking disciplinary action. 

It is my view that public interest factors are given insufficient weight, with the result that disciplinary proceedings are initiated against doctors when they are simply inappropriate and unnecessary. 

Leslie Buchbinder is a Director of Bowen Buchbinder Vilensky,

Leslie Buchbinder

Leslie Buchbinder