Balancing self audit with statutory disclosure

1
Balancing self audit with statutory disclosure

• Roger N Traves SC

2
(No Transcript)
3
MY CO-AUTHOR
4
Increasing demand for information

• Evolution of Freedom of Information laws
• Reforms to public service legislation
• Introduction and expansion of Whistleblower
  laws
• New laws requiring investigation of systemic
  failures
• Proposed laws imposing positive reporting
  obligations in respect of individuals

5
Propositions

• The identification of maladministration and poor
  performance is in the public interest.
• In some instances public identification will be
  justified.
• Legislative overkill may do more harm than good.

6
Queensland Public Service Regulation 1889

• No information concerning public business shall
  be given, directly or indirectly, by an officer
  without the express permission of the Minister,
  except in the performance of his official duties,
  and no officer shall reveal information which has
  come to his knowledge in his official capacity.

7
Crimes Act 1914 (Cth)

• Criminal offence for a Commonwealth officer to
  speak out even if it was in the public interest
  to do so.

8
Bennett v President, Human Rights and Equal
Opportunities Commission (2003) 78 ALD 93

• Held regulation unconstitutional and invalid on
  grounds that it unreasonably impaired the
  applicants freedom of expression and of
  political communication

9
The modern approach

• Voluntary self-assessment by the profession
• In the context of legislative response to public
  demand for increased disclosure and accountability

10
Legislative Response

• Health and Other Legislation Amendment Act 2007
  (Qld) (systemic failures)
• Medical Practice Amendment Bill 2008 (NSW)
  (individual standards)

11
Health and Other Legislation Amendment Act 2007
(Qld)

• Establishes a process called root cause
  analysis of what are defined as reportable
  events

12
Reportable events

• Death by various specific causes
• Deaths or an injury suffered that was not
  reasonably expected to be an outcome of the
  health service provided to the person (Injury
  means an injury likely to be permanent)

13
Root cause analysis

• Identify factors that contributed to the event
• Identify remedial measures which could be
  implemented to prevent a similar event
• It does not involve investigation of the
  professional competence of a person in relation
  to an event, nor finding out who is to blame for
  the happening of the event

14
The RCA legislation

• Generally good
• Directed towards serious events
• Positive obligation to report
• Identifies systemic (as distinct from individual)
  failures
• Process of recommendation and implementation
• Information protected, with limited exceptions,
  from use in legal proceedings

15
Medical Practice Amendment Bill 2008 (NSW)

• Obligation upon registered medical practitioner
• Who believes, or ought reasonably to believe,
  that some other registered medical practitioner
  has committed reportable misconduct
• Must report reportable misconduct to the NSW
  Medical Board
• Failure to do so constitutes either
  unsatisfactory professional conduct or
  professional misconduct

16
Reportable misconduct

• Medical practitioner who practices medicine while
  intoxicated by drugs or alcohol
• engages in sexual misconduct
• practices medicine in a manner that constitutes a
  flagrant departure from accepted standards of
  professional practice or competence and risks
  harm to some other person

17
When must a report be made?

• Onus on registered practitioner not bureaucrat
• A matter of judgment, but not just your judgment
• Flagrant glaring, notorious, scandalous,
  flaming into notice
• Single incident may be sufficient

18
The Reporter

• Making a report is not a breach of professional
  etiquette
• The content of a report cannot amount to
  defamation
• Nor give rise to civil suit for malicious
  prosecution

19
The NSW Act

• Reporting intoxication and sexual misconduct is
  reasonable
• Otherwise process jeopardizes informal process of
  voluntary audit already in place
• Potential to create distrust and disharmony
• Reluctance to take on cases which are more
  difficult and risky
• Threat to uniformity in auditing standards

20
A better approach

• Positive obligation on doctor concerned?
• Informal audit process but with protection of
  information and documents