Can doctors sue those who complain about them to AHPRA?

By Geir O'Rourke

8 Sep 2022

Those who act in bad faith when lodging an AHPRA notification against a doctor may not be immune from defamation and can potentially be sued by the subject of the complaint, a leading medical lawyer says.

It comes after the Queensland Court of Appeal allow a defamation case brought by a doctor who was sacked and reported to the regulator less than three weeks after starting work at a hospital in the state’s north.

The verdict overturned an earlier decision by the Queensland District Court which threw out the case on the grounds that the notification was protected under Absolute Privilege, which grants immunity against defamation lawsuits for any statement made in a court or tribunal.

Rather, the appeals court held that notifications under the National Law came under the less sweeping defence of Qualified Privilege, which only applies to complaints made in good faith.

The court heard Dr Babak Abakri was a non-specialist doctor with more than 12 years’ experience in psychiatry when he was hired as a locum at Mackay Base Hospital in early March 2019.

But his employment was terminated that same month after junior doctors wrote a letter to hospital management complaining about his performance.

Based on the six-page letter, the hospital then raised an official notification with Queensland’s Health Ombudsman, triggering an investigation by AHPRA. This was finalised in June the following year, with the watchdog determining to take no further action.

Four days later, Dr Akbari filed defamation proceedings against the hospital as well as the senior medical officer who made the AHPRA notification, arguing the case should be heard despite being brought 158 days past the one-year limitation period for defamation.

He said he had waited for AHPRA to conclude its investigation, pointing out the regulator had found “no attempt had been made by the hospital to independently investigate or substantiate the concerns which had been raised prior to the dismissal”.

With the case having originally been thrown out by the Queensland District Court, Dr Akbari successfully appealed, arguing the original judge had “erred in law holding that there was an absolute privilege”.

No order was made in relation to the district court proceedings (link here).

Nevertheless, health law expert Rebecca Taylor from Panetta McGrath lawyers said the verdict highlighted the need for good faith when making an official complaint to AHPRA.

“Absolute privilege is a legal privilege that attaches to all statements made in the course of judicial and quasi-judicial proceedings (such as in tribunals) so there can be no action for defamation even if the words were published with a malicious motive or were false,” she said (link here).

“A qualified privilege only applies if the defendant has not acted with actual malice.”

The lawyer added: “The National Law provides for a defence of qualified privilege to parties making notifications to AHPRA. This means that a person making a notification is immune from a defamation claim where they have acted in good faith and they will not be liable (civilly, criminally or under an administrative process) for making the notification or giving information.”

“Further, the making of the notification or giving of information does not constitute a breach of professional etiquette or ethics or a departure from accepted standards of professional conduct.

“The National Law would not protect a person who had acted in bad faith or with malice.”

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