A recent decision in the Queensland Civil and Administrative Tribunal (the Tribunal) indicates that ‘bad faith’ complaints with false and misleading information may amount to professional misconduct.
Background
The Health Ombudsman (the Applicant) alleged that Dr Ling (the Respondent) had:
- failed to maintain a proper standard of care in relation to 9 patients due to inappropriate prescribing practices and inadequate clinical records (Allegation 1); and
- deliberately or recklessly provided false and misleading information to the Applicant and Ahpra, and in an affidavit sworn and filed in the Tribunal (Allegation 2).
Of most interest, is Allegation 2, that the Respondent provided a false and misleading notification in the absence of good faith.
For context, the Respondent and Dr X worked at a rural hospital in Queensland. On 3 November 2014, the Respondent submitted a notification to the Applicant concerning
Dr X, asserting he had an impairment and his standard of care departed significantly from accepted professional standards (the Notification).
Two further notifications about Dr X were submitted to the Applicant, one of which was made by an official of a different health service after speaking with the Respondent. Ultimately, no further action was taken against Dr X in respect of any of the notifications.
The Applicant alleged that the Notification had been made recklessly or intentionally, and not in good faith, and contained the following false and misleading information:
- a patient committed suicide after Dr X ceased her long term medication;
- Dr X put a 92-year-old lady on insulin whilst she was blind, deaf and lived alone when oral hypoglycaemic medication was working; and
- Dr X treated suspected urosepsis with Flagyl only, when his diagnosis was diverticulitis.
In addition, it was alleged that the Respondent submitted further false and misleading information about Dr X to Ahpra and in his sworn affidavit to the Tribunal.
The Applicant alleged that the Respondent’s false and misleading statements amounted to professional misconduct under the first limb of the National Law’s definition, that is, conduct that fell substantially below the standard reasonably expected.
Outcome
In relation to Allegation 2, the Respondent initially said he was careless and had provided the information from memory without the benefit of records. However, he had made the statements honestly and in good faith, with a reasonable belief as to the allegations and with the material aspects of his concerns correct.
During the hearing before the Tribunal, the Respondent ultimately agreed he had made false and misleading statements in the Notification and that it had not been made good faith. In light of the admissions made by the Respondent, the Tribunal held his conduct was a significant departure from the standard expected and was therefore, professional misconduct.
The Tribunal went on to say that arguably, the conduct was indicative of the Respondent being not a fit and proper person to hold registration but as this was not alleged and no submissions on the matter were heard, no specific finding in this respect was made.
A further hearing on the issue of sanction was adjourned for the parties to make submissions.
Implications
Bad faith complaints can have significant consequences for practitioners, including possible suspension from practice or the imposition of conditions that make practice difficult. In these circumstances, it is understandable that practitioners who believe a bad faith complaint has been made against them want some kind of recourse against the offending party.
However, whilst Health Ombudsman v Ling [2023] QCAT 92 makes clear that a bad faith complaint that contains falsehoods unsupported by the evidence may amount to professional misconduct (suggesting this conduct can be the subject of a notification itself), we caution practitioners that making a responsive notification when a colleague has submitted a complaint will not necessarily resolve matters.
Practitioners should be conscious, if making a complaint about another practitioner, that it does not contain false and misleading information, and that the details provided are factually accurate. A complaint made in bad faith may be the subject of a notification itself and indicate to the relevant Board or Ahpra that they are not a fit and proper person to hold registration.
To read the decision in Health Ombudsman v Ling [2023] QCAT 92, click here.
