Introduction to Health Practitioner Malpractice Given our long and outstanding experience in the biomedical area, we are uniquely placed to act for you as a respondent in cases of alleged heath practitioner malpractice.
While some complaints are justified, many are vexatious and are found to be without merit. However, the potential public embarrassment, loss of ability to practice and consequent financial loss while the complaint is investigated, can be devastating to a career.
Negligence may arise when the health practitioner causes pain or suffering to their patient inadvertently by either performing or not performing an act that leads to an adverse outcome for the patient.
The “do no harm” dogma is broken by accident; the health practitioner probably does not even know of the problem at the time.
We have described this health practitioner negligence in a recent legal insight on our website.
What Is Health Practitioner Malpractice? Malpractice may arise when the practitioner is aware of the potential illegal or immoral consequences of their actions but proceeds anyway. Or offers false or misleading information to cover up or excuse an otherwise negligent act.
A client need not even be involved to incur a finding of malpractice. An example here is the Adelaide surgeon who was handed a suspended sentence and good behaviour bond after pleading guilty to a $52,000 fraud he perpetrated on SA Health by falsifying his time sheets at a metropolitan hospital.
This type of non-patient conduct, unrelated to the practitioner's practice, can still be seen to be against the public interest, damaging the lay perception of practitioner’s area and therefore incurring sanctions on the practitioner.
In another example , The South Australian Civil and Administrative Tribunal (“SACAT”) ordered that a nurse be reprimanded and disqualified from applying for registration as a registered health practitioner for 2 years because they committed professional misconduct by fraudulently and/or forging prescriptions.
SACAT also found a medical practitioner guilty of professional misconduct . The practitioner inappropriately prescribed and made false and misleading statements to the Drugs of Dependency Unit.
SACAT ordered they be reprimanded, conditions be imposed on their registration for 12 months, they be fined $25,000 and pay the costs of the Medical Board in lieu of a substantial suspension or disqualification.
In another case constituting professional misconduct, a pharmacist was reprimanded, disqualified for 5 years and ordered by SACAT to pay the costs and disbursements of the Pharmacy Board. The pharmacist had a guilty conviction for dishonestly obtaining drugs of dependence and then allegedly failed to inform the Pharmacy Board of this.
SACAT ordered that the actions of a medical practitioner, including sexual misconduct and the supply and use of illicit substances, constituted professional misconduct. The Doctor was reprimanded, had to pay the Medical Board’s costs, the Doctor’s registration was cancelled for 6 months, and they were disqualified for applying for registration for 6 months.
Health Practitioner Malpractice Claims The Medical Practitioners Conduct Tribunal found a psychiatrist who had a personal intimate, but not sexual, relationship with a client guilty of unprofessional conduct and suspended their licence for 6 months and that they be supervised for not more than 12 months following the period of the suspension. On appeal, the Supreme Court of South Australia set aside the supervision order and remitted this to the Tribunal to revisit the period of supervision.
SACAT found that a psychologist who engaged in consensual intimate physical and sexual conduct, but not intercourse, with a patient should have their registration cancelled for 3 years during which time they may not apply for registration.
The Health Practitioners Tribunal of South Australia (predecessor of SACAT) ordered that a chiropractor ’s misconduct of indiscriminate use of X-rays, taking money in advance for prolonged courses of treatment, and over-servicing, constituted conduct that resulted in indefinite disqualification. The chiropractor appealed to the District Court of South Australia which ruled that an indefinite disqualification was excessive, and the period of disqualification should be 10-years. The chiropractor appealed this decision by the District Court, but the Supreme Court of South Australia (Full Court) upheld the District Court’s decision.
Another chiropractor who was found to have used false and misleading testimonials to suggest that chiropractic treatment was effective in treating and/or preventing cancer, was disqualified for 2 years.
A veterinary surgeon who operated on the incorrect hip of a kelpie, that the owner then ordered be put down for economic reasons, was accused by the Veterinary Surgeons Board of South Australia for negligence, attempting to conceal or at least minimise the enormity of what had been done, and misleading the Board by making a false statement in their clinical notes.
On appeal, the District Court of South Australia found that certain critical findings of the Board were made on unproven and untested assumptions and ruled that the orders of the Veterinary Surgeons Board be rescinded.
These types of appeal to the Courts highlight the necessity of you being legally represented if you are accused of malpractice.
The Health Practitioner Complaints System For Malpractice The Australian Health Practitioner Regulation Agency (“Ahpra”) regulates health practitioners across Australia. Ahpra was created to administer the National Scheme and support 15 National Health Practitioner Boards to set the standards that all registered health professionals must meet.
Ahpra also manages applications for registration for 16 health professions such as doctors, nurses and most allied health practitioners. They also manage complaints about others working in healthcare who are not registered health practitioners such as nutritionists, masseuses, naturopaths, homeopaths, dieticians, social workers and speech pathologists.
Ahpra’s main role is to protect the public by ensuring that only health practitioners who are appropriately trained and qualified and practise in a competent and ethical manner, are registered.
Ahpra can only investigate a complaint if there may be a risk to the public from the practitioner’s actions.
The Health Practitioner Regulation National Law (South Australia) Act 2010 (“National Law”) defines practitioners and their professions.
What is a Health Practitioner? Health practitioner means an individual who practises a health profession. Health profession means the following professions, and includes a recognised specialty in any of the following professions— Aboriginal and Torres Strait Islander health practice; Chinese medicine; chiropractic; dental (including the profession of a dentist, dental therapist, dental hygienist, dental prosthetist and oral health therapist); medical; medical radiation practice; midwifery; nursing; occupational therapy; optometry; osteopathy; paramedicine; pharmacy; physiotherapy; podiatry; and psychology. Practitioners in the above fields are listed in the National Law and are covered by SACAT for determining disciplinary matters against health practitioners. Under s6 of the National Law, SACAT is declared to be the responsible tribunal of this jurisdiction for the purposes of the National Law.
The Health and Community Services Complaints Commissioner handles complaints regarding health professionals which means “an audiologist, audiometrist, optical dispenser, dietitian, prosthetist, psychotherapist, radiographer, therapeutic counsellor, social worker or provider of forensic or pathology services; or any other person who has an occupation that is based on providing health care or treatment to others” under s4(1) of the Health and Community Services Complaints Act 2004 (SA).
Other Health Practitioners Veterinary surgeons are not listed in the National Law but are under the jurisdiction of SACAT which, under the Veterinary Practice Act 2003 (SA), can determine disciplinary matters against veterinary surgeons or service providers. Social workers are also not covered under the National Law. Complaints concerning social workers can be made to the Health and Community Services Complaints Commissioner according to s25(l) of the Health and Community Services Complaints Act 2004 (SA) [“a health or community services provider has acted in any other manner that did not conform with the generally accepted standard of service delivery expected of a provider of the kind of service to which the complaint relates”] and to the Australian Association of Social Workers.
On 1 July 2025, social worker complaints will be covered under SACAT jurisdiction as per s56(1) of the Social Workers Registration Act 2021 (SA) (“Social Workers Act”). By 1 July 2025 all Social Workers in South Australia will have 6-months to apply for registration to work in South Australia. Under s46(5) of the Social Workers Act the Board has a range of orders it can make if it is satisfied that there is proper cause for disciplinary action against a registered social worker.
Legal Assistance for Health Practitioner Malpractice Cases If there has been a complaint about your service or fee, it is likely to have come from the relevant healthcare complaints Board in your area. Some of these professional Boards can investigate the complaint and order their own sanctions such as that for the Social Workers Registration Board. Most of these Board decisions can be reviewed by SACAT which under s37 of the South Australian Civil and Administrative Tribunal Act 2013 (SA) (“SACAT Act”) can affirm the decision, vary the decision, or set aside the decision, and substitute its own decision, or send the matter back to the Board for reconsideration with any directions or recommendations SACAT considers appropriate.
Depending on the makeup of members of SACAT that brought down the decision, an appeal can be made to the Court of Appeal, or in any other case, to the Supreme Court under s71of the SACAT Act. In some cases, a complaint may be made because the practitioner may be suffering from an impairment. Section 5 of the National Law defines this as “the person having a physical or mental impairment, disability, condition or disorder ---- that detrimentally affects or is likely to detrimentally affect ---- the person’s capacity to practice the profession.” Such impairments may be transient and brought on by the stresses of the practice or life in general. It is essential that these possibilities are raised in the defence to a complaint where appropriate.
Section 41 of the Civil Liability Act 1936 (SA) may also be appropriate to your defence. “A person who provides a professional service incurs no liability in negligence arising from the service if it is established that the provider acted in a manner that --- was widely accepted by members of the same profession as competent professional practice.” The gathering of appropriate expert witnesses would be required for this defence.
Frivolous, Vexatious or Improper Claims Section 48 of the SACAT Act allows a complaint considered to be frivolous, vexatious, misconceived, or lacking in substance, or involves a trivial matter or amount, or is being used for an improper purpose, or is otherwise an abuse of process, to be dismissed or struck out. SACAT may make any related or ancillary order.
Although s56(1)(a) of the SACAT Act allows you to appear personally before SACAT, given the potential complex legal process the complaint made against you may involve, we strongly recommend that you seek legal advice as soon as you become aware of the complaint against you.
Contact Wadlow Solicitors for a confidential first chat about the complaint you are facing as early in the process as you can.
