To the Editor: The Acts constituting the NSW Medical Board and Health Care Complaints Commission (HCCC) unfortunately permit inequitable joint functioning of these agencies. The provision that the complainant may appeal an unsatisfactory decision of a Medical Board's Professional Standards Committee (PSC) to the Medical Tribunal is misleading.1 The HCCC chooses its peer reviewer in any matter, investigates, recommends that the Board take action (or not), prosecutes matters at a hearing (or not) and is the only complainant allowed to appeal.2 Clearly, the skills, methods, and decisions of the HCCC and the Board must be beyond reproach.
The HCCC selects peer reviewers to consult during the investigation of a complaint.3 They are paid to report on documents and to appear as witnesses before any committee or tribunal of inquiry — either before an in camera PSC of the Board or at a Medical Tribunal, chaired by a judge in open court. Peer review reports, which are legally privileged and generally inscrutable, may be selectively biased. My own involvement (as a complainant disallowed appellant standing from the PSC, and as an occasional consultant to a complainant and to the defence in other, separate psychiatric complaint matters) has led me to conclude that some peer review reports are inconsistent with minimal professional requirements or even duplicitous. Blind faith in a system comprising these two statutory bodies and an anonymous peer reviewer is inappropriate.
The NSW Administrative Decisions Tribunal (ADT) has judged disclosure of the membership lists of HCCC peer review panels to be in the public interest. In 1999, the ADT inquired into the selection of the list of psychiatrist peer reviewers when dealing with an application for disclosure based on the Freedom of Information Act 1989 (NSW).4 The list proved to have evolved over an unknown period, through unknown differing methods (such as recommendations from unidentifiable practitioners or staff), for unknown precipitating reasons, and at unknown times. There was no general awareness within Medical Colleges or other medical associations of the selection process or of the members who may be thus empowered. This, when we know that, as a profession, we cannot be uniformly sensible, ethical or emotionally stable. The HCCC and the NSW Medical Board are thus vulnerable to corrupt influence.
The NSW Parliamentary Committee on the HCCC has sought submissions from the public and has been conducting an inquiry since November 2001 to determine necessary improvements to the functioning of the HCCC. I believe professional bodies need to take a resolute lead, declare their intentions, identify their roles, consult with their members and heed their responses. Ideally, each will clarify its policies and procedures for regulation and will demand proper functioning from the agencies with statutory responsibilities.
- 1. Medical Practice Act 1992 (NSW). No. 94, Section 87.
- 2. Hidden J, Supreme Court of NSW, 15 December 1995. Shoulder v NSW Medical Board & anor.
- 3. Adrian A, Commissioner, Health Care Complaints Commission. Guidelines for peer reviewers. An available commission document. Surry Hills, NSW: HCCC, July 2001.
- 4. Dawson v Commissioner, Health Care Complaints Commission  NSWADT 57. Available at: <http://www.lawlink.nsw.gov.au/adt> (follow links to ADT decisions, 1999 [General Division], Page 2, No. 57).
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