The Walker Inquiry

By Michael Wade


Round One

In an interim report marking the completion of the first phase of the Special Commission of Inquiry into Camden and Campbelltown Hospitals, the Special Commissioner, Bret Walker SC, has made damning findings about the Health Care Complaints Commission’s failure to properly apply its act in assessing and investigating complaints made to it.

Those failures denied procedural fairness to any of the practitioner’s whose actions were the subject of complaint by the ‘whistleblower nurses’ and about which the HCCC made findings in its investigation report dated 9 December 2003.

The interim report dated 31 March is not a ‘provisional’ report on the whole of the subject matter of the special commission’s terms of reference but makes findings on the areas of the inquiry’s terms of reference, regarded by Mr Walker as most urgently needing resolution – the clinical complaints which were mishandled by the HCCC.

In what Mr Walker described as a “sorry situation,” he found the HCCC assessed the complaints received by it as against Macarthur Health Service when, in his view, they were undoubtedly complaints against doctors. He found the misclassification of the complaints was ”indefensible”. Because of that flawed assessment, the provisions of the HCC Act which require that a doctor against whom a complaint is made be informed of the complaint and given an opportunity to respond to the findings of the HCCC’s investigation, were ignored. In short, complaints were reported by the HCCC as ‘substantiated’ without any notification to, or response from, the doctors or nurses concerned.

Mr Walker endorsed (then) proposed amendments to the HCC Act designed to protect from legal challenge any action taken by the HCCC to investigate and prosecute doctors and nurses following his recommendations. Mr Walker’s concerns relate to the “deplorable delay in investigations and prosecutions” and the need to have those urgently dealt with on their merits.

12 medical practitioners have so far been referred for investigation with a view to disciplinary action being taken against them. 5 medical practitioners (including one of the former 12) have been referred for performance assessment. It is possible more referrals may follow.

Parliament acted on Mr Walker’s call for legislative protection for investigations and prosecutions arising from the Special Commission with extraordinary speed.

Also on 31 March the Health Care Complaints Amendment (Special Commission of Inquiry) Bill 2004 (‘the amending act’) was introduced and passed by both houses. It awaits assent. While it will certainly assist in achieving the purposes identified by Mr Walker, there are significant concerns that it may go too far in eliminating the rights of practitioners who are subject to a recommendation by Mr Walker (see below).

Where to from here?

There will possibly be one further interim report. The final report is due by 23 April 2004. The Final report will deal with the general performance of the HCCC in relation to its investigation of the Camden and Campbelltown complaints and the HCCC’s administration and regulatory arrangements.

Public hearings concerning “the way forward” for Camden and Campbelltown Hospitals and the HCCC will be held shortly. The next phase of the inquiry will also consider the role of the disciplinary system in maintaining standards in the health system and the possibility of a ‘Clinical Excellence Commission’.

The current system for investigation of complaints

Following the Government’s sacking of the HCCC’s commissioner in December 2003, the Acting HCCC Commissioner established a separate team of investigators to investigate the complaints relating to Camden and Campbelltown Hospitals comprising independent investigators.

For many years the delay in the investigation of complaints has caused concern to complainants and respondents alike. The Report of the Parliamentary Health Care Complaints Act 1993 ('HCC Act') Committee on the Health Care Complaints Commission in December 2003 noted a lack of acceptable progress in addressing “unacceptable delays in investigations” over at least the last four years.

Mr Walker reports that it is now proposed the HCCC involve legal and medical input into investigations at an early stage. Additional expertise and resources have been sought. Furthermore, a performance standard requiring the completion of 90% of investigations within 12 months has been set and strategies initiated for addressing the backlog of investigations.

Time will tell whether those measures are effective.

The Health Care Complaints Amendment (Special Commission of Inquiry) Bill 2004

In summary, the amending Act has the following effects:
  1. Where Mr Walker recommends that a complaint against a health practitioner be investigated by the HCCC or referred by it to another person or body pursuant to S.26 of the HCC Act:
      (a) The matter is taken to be a complaint from the Director General of the Department of Health or a complainant nominated by Mr Walker and cannot be withdrawn;
      (b) HCCC must investigate or refer the matter without delay and is taken to have consulted with the relevant registration authority and the requirements of the relevant health registration act are taken to have been complied with.
  2. Despite any Act or law to the contrary, the Special Commission may provide the HCCC, a registration authority, an impairment assessment body or a professional assessment body with documents or other information obtained by it in the course of its inquiry.
  3. In investigating a complaint, assessing a practitioner or taking proceedings against a health practitioner, the HCCC, any registration authority, an impairment body, professional assessment body or disciplinary body may take into account any matter contained in the special commissioner’s report or any document or information taken into account by the special commission in making its report.

  4. Any action of the HCCC, any registration authority, an impairment body, professional assessment body, disciplinary body, complainant or any person assisting or otherwise associated with any of them that is recommended by the special commission or a prosecution or other action following a recommendation of the special commission may not be challenged, reviewed, quashed or called into question before any court of law, administrative review body or disciplinary body even on procedural fairness grounds.

  5. Anything done by the HCCC before the commencement of the amending act in anticipation of a recommendation from the special commission is taken to have been done after the commencement of the amending act if it is contained in a report of the special commission.
The broad effect of the amending act is to apply a very different legal scheme to dealings with complaints arising from the Inquiry into Camden and Campbelltown Hospitals than that which governs all other complaints.

Where privileged information is dealt with and considered reasonably necessary by the Special Commission to assist an agency (such as the HCCC, the Medical Board or the Medical Tribunal) in the exercise of its functions, including the prosecution of disciplinary proceedings against a practitioner, privilege will be lost.

Practitioners affected by recommendations made by the Special Commission will have their rights to challenge the fairness of the way in which those complaints, subsequent disciplinary or other action are dealt with, entirely eliminated.

There are significant uncertainties as to how the amending act will affect some proceedings and whether other proceedings (such as subsequent review of conditions placed on a practitioner’s registration) are possible at all. As with all complaints, practitioners affected by the complaints considered by the Special Commission should seek appropriate legal advice at the earliest possible stage.

Mr Walker endorsed amendment of the HCC Act to ensure that practitioners whose conduct requires it face disciplinary bodies irrespective of any delay in investigations and prosecutions. The Amending Act will certainly achieve that purpose, but the question is, "At what costs?"

If you have any questions regarding the impact of the Walker Inquiry findings, please contact:

Michael Wade
Senior Associate
Tel: 61 2 9228 9277
michael_wade@tresscox.com.au

Scott Chapman
Partner
Tel: 61 2 9228 9317
scott_chapman@tresscox.com.au


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