WHEN PATIENTS COMPLAIN - Avant

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What you really need to knowAvant Learning Centre handbook

WHEN PATIENTS COMPLAIN:

Table of contentsIntroduction 1

Chapter 1: Direct patient complaints 2

Why do patients complain? 2

Dealing with patient complaints 3

Resolving complaints (informal and formal responses) 4

Complaint management process 4

Case study examples 8

Complaint proceeding to a civil matter 10

Chapter 2: Complaints from a regulatory authority or complaints entity 11

Receiving a complaint 11

Preparing a response 12

Avant’s guide through the process of an AHPRA complaint 13

AHPRA complaints process national 15

OHO complaints process 16

HCCC complaints process 17

Case scenario examples 18

Chapter 3: Privacy complaints 19

The privacy complaint process 19

Complaints lodged with OAIC 20

Chapter 4: Support available through the complaints process 24

Avant support 24

Looking after yourself 29

Frequently asked questions 30

This publication is not comprehensive and does not constitute legal or medical advice. You should seek legal or other professional advice before relying on any content, and practice proper clinical decision making with regard to the individual circumstances. Persons implementing any recommendations contained in this publication must exercise their own independent skill or judgment or seek appropriate professional advice relevant to their own particular practice. Compliance with any recommendations will not in any way guarantee discharge of the duty of care owed to patients and others coming into contact with the health professional or practice. Avant is not responsible to you or anyone else for any loss suffered in connection with the use of this information. Information is only current at the date initially published. © Avant Mutual Group Limited 2016.

AVANT LEARNING CENTRE HANDBOOK | When patients complain

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This handbook outlines what you need to do in the most common situations you are likely to encounter.

Of course, there will always be scenarios that may not fall neatly into any of the categories we cover in this handbook. If in doubt you should always contact Avant for advice.

IntroductionThis handbook explores how to deal with different types of complaints that you may receive in your practice. Avant’s Medico-legal Advisory Service receives many requests from our members asking for advice after they have received a patient complaint. As this handbook will make clear, the response depends on the type of complaint.

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Chapter 1Direct patient complaints

Dealing with patient complaints | Resolving patient complaints | Complaint management process

Patients complain for many reasons, but usually in response to something they perceive has gone wrong. Generally, a patient with a complaint seeks an explanation or further information. It is important to remember that what the patient perceives as an adverse event may be very different from what you consider to be an issue.

Responding early and managing a complaint appropriately may prevent the patient seeking resolution through a more formal process.

This chapter outlines:

▶ reasons why patients might complain

▶ how you should deal with a patient complaint in the first instance

▶ resolving a patient complaint when a written response is required and when it isn’t

▶ the steps to take when investigating a complaint.

Why do patients complain?Patients generally complain because they perceive that something has gone wrong. They may also complain because of an unmet expectation or because there was a breakdown in communication.

An extensive 2013 Australian study reviewing patient complaints to Australian regulatory authorities over approximately ten years found that 61% of complaints raised issues with aspects of clinical care. Some complaints involved multiple issues; the most common were related to treatment (41%), diagnosis (16%) and medication (8%). Nearly a quarter of complaints raised communication issues, including concerns about the attitude or manner of doctors (15%) and the quality of information provided (6%).1

While an adverse event may be the precipitating factor for a complaint, other factors – such as rudeness, delays, inattentiveness, apathy or poor communication – strongly influence a patient’s decision to make a complaint.


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Good communication and active listening to the patient are known to minimise complaints2. Conversely if a patient believes they have not been listened to and an adverse event occurs, then they are more likely to lodge a formal complaint. We would recommend that you observe the ‘golden minute’ – where you listen to the patient without interruption, for at least a minute. Not doing so is often perceived by the patient that you are not listening to them.

Dealing with patient complaints If you work in public or private hospital settings, complaints management protocols will usually be set out in policy directives and guidelines. You should make sure you are familiar with and comply with these.

In the out-of-hospital and primary care environments, we recommend that every practice and clinic has a written protocol for dealing with complaints received directly from patients.

▶ Complaints of a clinical nature should always be dealt with by a medical practitioner, preferably the practitioner concerned, but if this is not appropriate, another practitioner in the practice.

▶ The team approach to managing complaints should ensure that the patient feels their complaint is being taken seriously and is being handled by someone with sufficient authority and sensitivity to address and resolve their concerns.

▶ Never ignore complaints. It is prudent to deal with complaints quickly with an emphasis on resolving the concerns. If you can’t deal with the complaint immediately on receipt, assure the patient that you take complaints seriously and will respond promptly when all the facts are known.

When to contact Avant Always consider contacting us if you have any concerns. In particular, contact Avant if:

▶ you think the issue is serious

▶ you are unsure what to do, even if the complaint seems trivial.

A complaint received from a complaints entity or regulatory body should always be taken seriously and we recommend you contact us immediately – see Chapter 2 for further information.

The first point of contact is vital when managing a patient complaint. Ensure all staff are aware of the significance of their response when a patient initially approaches them with a complaint.

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Informal process for complaints:

▶ Respond to the patient’s concerns in person or over the phone.

▶ Document the complaint and actions in a complaints folder, separate to patient medical records.

Resolving complaints: no formal written communication requiredThe steps taken to deal with a complaint depend on the nature and seriousness of the complaint. Some complaints, usually less serious ones, can be dealt with quickly and informally, without the need for any formal written communication.

With complaints like this, all that the patient may expect is to see a copy of a test result or report and have it explained, or to receive an apology for being kept waiting for an extended period. Where possible, these types of issues should be addressed quickly, in person, over the phone or in an email if appropriate.

Resolving complaints: written communication requiredFor more serious complaints, or complaints that raise serious issues, a more formal process is appropriate.

It is preferable to receive and respond to more serious complaints in writing (even if the initial complaint is made verbally). Depending on the nature and seriousness of the complaint, you may wish to seek assistance from Avant in managing the complaint and preparing your response. What may seem minor can often develop into something more significant.

Complaint management processFor complaints of a serious nature, the next steps are to:

Investigate the detailsGather all the facts. Review the medical notes, copies of reports and records of telephone calls, discuss with relevant staff, check local protocols and check what happened on that day.

Meet with the patient Serious complaints made to you or your practice are generally best managed by speaking directly to the patient or an authorised representative. Where appropriate, suggest a meeting to discuss the patient’s concerns.

▶ Encourage the patient to bring a friend or partner to accompany them if they wish.

▶ Suggest an interpreter if language is a barrier.

▶ Allow plenty of time and find a quiet, private room for the conversation.

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With any complaint, before you prepare your response, make sure you fully understand:

▶ what the complaint is about

▶ who it is about

▶ the scope of the complaint

▶ what outcome the patient hopes to achieve.

Complaints that seem trivial to you may be emotionally charged for the patient. To acknowledge the complaint and the patient’s feelings, tell the patient: “I can see that you’re upset, it must have been frustrating for you…” If you are also upset about an outcome, tell the patient: “This is not the outcome either of us wanted or anticipated”. There is nothing wrong with demonstrating empathy and making sure the patient knows they have been seen, heard and understood3.

Apologise if the practice or your own actions have contributed to the problem. Statements which simply express regret, such as “I am very sorry this has happened”, are not an admission of liability.

See our handbook When things go wrong for more information about open disclosure and saying sorry.

If a meeting is held, it is often prudent to involve another person such as a practice manager or a colleague who can witness the discussion and ensure that emotions are controlled.

Provide informationKeep parties informed, particularly if there are likely to be delays while the complaint is being investigated. If you are not available for a period of time, communicate this to the patient as it will help to manage expectations, and provide clear timeframes for resolution.

Most people who complain wish to obtain information about what happened and what it means for them. This information could be provided during the face-to-face meeting, and/or in a follow-up letter summarising what occurred and any outcomes.

Quality improvement processReview the factors that led to the complaint. Are there changes that can be made to prevent a recurrence? If so, share this information with the patient as they will appreciate you taking the complaint seriously and will see that their complaint will contribute to ongoing improvements.


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Reconsider pursuing paymentConsider whether to delay billing the patient or pursuing payment until the complaint has been resolved. Not pursuing payment in the context of a complaint has been shown to increase willingness by the patient not to take the matter further4. As an act of good faith, you could consider not sending a bill.

The patient may be seeking payment of fees or payment of additional expenses they have incurred as a result of the incident that led to their complaint. It may be appropriate to pay these expenses as a gesture of goodwill, to resolve a complaint. Contact Avant for advice in these circumstances.

Concluding the complaintWe recommend you provide a summary to the patient of what has been covered and achieved at the end of the process, and also check if the patient is satisfied that their concerns have been addressed. If you clarify what will happen next and if follow-up is required, make sure it happens. If further information, treatment or a referral has been promised, make sure this happens also. The aim is to resolve the issue and preserve the therapeutic relationship.

Documenting complaintsIrrespective of whether an informal or more formal process has been followed to respond to the complaint, all complaints should be well documented and kept in a folder separate to patient medical records. If someone other than the patient makes a complaint, make sure you have the consent of the patient or of their legally authorised representative before discussing the patient’s treatment with them.


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Contact Avant and follow advice

Ask patient to clarifyissues if they are

unclear

Complaint less serious and treated informally

Address the patients concerns directly

Complaint serious and treated formally

Ideally request complaint in writing

Investigate details

Meet with the patient

Provide the patient with information Quality improvement review

and change process undertaken

Wrap up ensuring concerns and follow-up requirements addressed

Review your documentation of complaint and response

From patient or third party

From external agency

Complaint received

Contact Avant if advice is required at any stage in

the process

The complaint management process


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Scenario Action Consider

A patient was kept waiting for over 2 hours due to the GP attending a medical emergency. Reception staff did not inform the patients sitting in the waiting room about the emergency, nor did they give regular updates. The patient angrily complains to the reception staff in front of all other patients.

Ideally, the GP who kept the patient waiting (or another GP from the practice or the practice manager) should speak to the patient personally in a separate room, not reception. Sincerely apologise, explain the reason for the delay and also apologise for the lack of updates.

All staff should understand the value of good communication and know how to manage front-line patient complaints. You cannot underestimate the significance of the response made by the person who the patient notifies initially about their complaint.


A patient comes to reception in the surgical consulting rooms, asking to speak with a different surgeon from the one she had consulted with previously. She alleges that she had been sexually assaulted by her current surgeon during a breast examination.

Despite this initially being an informal verbal complaint, this complaint should be treated as serious and early legal advice is essential. The patient may go to the police, a complaints entity or a regulatory authority.

Normally, when an informal complaint is made, we advise that the relevant doctor speaks to a patient directly. However, because of the nature of this complaint, direct communication would not be appropriate.

Often, misunderstandings occur due to poor communication with the patient about consent and expectations as to how an examination will be performed.

Informal patient complaint



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There are some situations when the complaint is from someone other than a patient. These complaints should be taken just as seriously. You should contact Avant before responding if you are uncertain about your response.


Ambulance officers complained to a GP that she had not appropriately assessed and managed a patient prior to the ambulance arriving. A patient subsequently dies en route to hospital.

Although this was an informal complaint made during the handover of care between the GP and ambulance officers, it is likely that a more formal serious complaint may follow. In this type of situation, we recommend you contact Avant for advice. This should ideally occur prior to discussions with the deceased’s family.

In this type of situation, you cannot underestimate the value of sound documentation. Ensure you have comprehensive notes, not just about your care but also the clinical reasoning behind your decisions.


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Complaints proceeding to a civil matterSometimes a patient complaint may proceed to a civil matter, which means the patient brings a compensation claim for medical negligence.

To be successful in a medical negligence claim against you, the patient has to prove all of the following:

1. Breach of duty – that the treatment was not in accordance with the required standard of care determined by reference to competent professional practice in the circumstances.

2. Injury – the patient suffered injury and incurred costs and expenses as a result.

3. Causation – that the breach of duty caused, or contributed to, the injury, loss or damage suffered by the patient.

Even when proceedings have commenced, most claims are either discontinued, settled by mediation, or settled shortly before going to trial.

Remember!Poor communication is a significant contributor to patients complaining.

Even if you do not see any validity in the complaint, take the issue seriously and respond to the patient with the necessary concern and intent to resolve the issue. This will reassure the patient that they are important to you and will make an early resolution much more likely.

All complaints should be seen as a means to address any quality concerns and improve your systems and processes.

Key messages ▶ The severity of a complaint

determines the appropriate action to take.

▶ Practices should have a complaints protocol/policy that outlines how to manage a complaint.

▶ The first point of contact is extremely important so all staff should be trained to respond appropriately and be familiar with the complaints process.


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Receiving a complaintNotification of a complaint that has been made from a patient or other complainant via a complaints entity or a regulatory body will usually be sent to you as a letter. The letter will normally include a copy of the original complaint.

At this early point in the process, it is important to ensure you:

▶ DO NOT contact the patient or the person who has made the complaint. This could be interpreted as an attempt to dissuade that person from complaining, or to encourage them to withdraw their complaint. Such a move could be considered inappropriate conduct.

▶ DO NOT contact the complaints entity or regulatory authority until you have sought advice from Avant; if emotions are running high, you may say something to hinder resolution of the complaint. If necessary, Avant can contact the complaints entity or regulatory authority on your behalf and manage all communications.

Chapter 2Complaints from a regulatory authority or complaints entity Receiving a complaint | Responding to a complaint | AHPRA complaints process | Other complaints entity processes

The first you may know of a complaint against you is when you receive a letter from the Australian Health Practitioners Regulation Agency (AHPRA) or other complaints entity such as the Health Care Complaints Commission (HCCC) in NSW, or the Office of the Health Ombudsman (OHO) in Queensland, or other state or territory health complaints entity.

This chapter will cover the process you should undertake when receiving a complaint from a complaints entity or regulatory authority.

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Preparing a response You could prepare a response or ask Avant for help first.

Before preparing the response, consider who has made the complaint (if not the patient) and whether there will be a breach of doctor-patient confidentiality in providing a response. This will be determined on a case-by-case basis and each situation will depend on the authority of the complainant to receive the patient’s personal information. For example, a parent may have authority to receive a response for their child, and the executor of an estate will have authority to receive information on behalf of a deceased person. We can advise you on whether it is appropriate to provide information if the complainant is not the patient.

An effective response usually contains the following elements:

▶ acknowledgment of the complainant’s point of view. It is helpful to remember that the complainant genuinely believes in their complaint and so an insightful conciliatory response may assist in resolving their concerns

▶ provision of factual information to address the issues that have been raised. Where possible, your response should be based on your contemporaneous medical records and free of medical jargon

▶ clarification or correction of misunderstandings

▶ where applicable, a description of changes that will be made in your clinical practice or in the practice environment to avoid a similar set of circumstances, or at least an assurance that the complainant’s comments have been considered carefully

▶ an apology – either for the problem perceived by the patient, or sometimes (carefully) for an outcome referred to in the complaint

▶ the complainant should also be thanked for giving you the opportunity to look into the matter.

Some health complaint entities have published information on how to deal with complaints. These publications often contain useful information about why patients complain and provide helpful tips on how to prepare an effective response.

Reviewing practice methods and making improvements can contribute to an effective resolution of the complaint. We would encourage a proactive approach to addressing any issues raised, such as completing one of Avant’s many education modules on a related topic. This is irrespective of your view on the validity of the complaint, but is rather to assure the complaints entity or regulatory authority of your desire to address any issues raised.

Ask Avant to review your response Avant has been assisting doctors to prepare responses to complaints for many years and in our experience, a response that is professional, factual and displays insight into the patient’s complaint is more likely to result in a good outcome for you.

Despite your best efforts, it can be very difficult to maintain objectivity in the face of a complaint about your professional conduct and care5.


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Avant’s guide through the process of an AHPRA complaintA complaint can be dealt with in different ways depending on its nature and the state or territory you reside in. The table below describes the process of an AHPRA complaint. Your claims manager or lawyer at Avant can advise you about the process with your particular complaint.

Notification of complaint

• AHPRA has sent you a notification. Included will usually be a notification form setting out the complaint completed by the patient (or complainant). It is possible AHPRA may also ask for your employer’s details.

• At this stage AHPRA will consider if immediate action is required to protect the public. If the Board takes immediate action you will be given notice to attend before the Board and make submissions. Often you only get 2-3 days’ notice of the hearing. You should immediately provide this letter to Avant. We will assist you by appearing with you at any Board hearing and making submissions on your behalf.

Initial response

• Unless immediate action is required, AHPRA will invite you to provide an initial response to the notification within two to three weeks. You should immediately provide this letter to Avant. We will assist you in drafting your initial response.

Board

assessment

• Upon receipt of your initial response, the Board will make an assessment of the notification within 60 days. When assessing a notification the Board considers if it raises issues of professional misconduct, unprofessional conduct, unsatisfactory professional performance or an impairment.

Outcome of assessment

• No further action.

• The Board makes a decision and you are informed of the action and have the chance to make submissions about the proposed action. We can assist you in making these submissions.

• The Board decides to further investigate the notification and proceeds to refer the matter to investigation and/or refer the matter to a health or performance assessment.

• The Board may require further information before making its decision about the notification. An investigator will seek further information from the complainant, patient records, other practitioners (if relevant), independent expert opinions, data from Medicare and pharmacy records.

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Further response to

identified issues

• The additional information will be provided to you and identified issues will be detailed. You will be asked to provide a further response. We will assist you in providing a response to the further material and identified issues.

• Although the law provides the investigation is to be conducted in a timely way, there are no specific time limits and the investigation process can take 9-12 months (or more in complex cases).

Outcomes • Take no further action.

• Impose a caution (may or may not be identified on public register of practitioners).

• Impose an undertaking (identified on public register of practitioners).

• Reprimand (identified on public register of practitioners).

• Refer to Performance and Professional Standards Panel (PPSP) (an informal hearing). A PPSP consists of at least three members (one lay member and two doctors). The PPSP decision is not public. However the outcome may be published on the public register.

• Health assessment. The Board may arrange an independent health assessment. You will receive a copy of the report unless it is prejudicial to your health. A Board member may then discuss the report with you and decide if any restrictions are to be imposed.

• Performance assessment. This involves one or two practitioners in the same field assessing your clinical skills and providing a report to the Board. On the basis of this report the Board may propose education, mentoring, supervision or other restrictions.

• Refer to a formal hearing in a disciplinary tribunal wand a suspension or cancellation of registration could be imposed. The decision is public and published on the public registrar

The Board gives notice

• If the Board takes action, it must give written notice to your employer of the action as soon as possible after making the decision.

Time to appeal

• You have 28 days to appeal a decision and if required, we will provide you with advice on the merits of such an appeal.


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Board considers referral to panel

Board refers the matter to a panel

Board decides to refer to another entity or take no

further action

A tribunal may decide to take no further action,

caution, reprimand, impose conditions, fine, suspend or

cancel registration

Unsatisfactory performance, unprofessional conduct and/

or impairment?

Board refers matter to tribunal

End

End

End End

End

Board decides to take no further action

Is further information required?

National Board may restrict registration as interim step. It can suspend registration, impose

conditions, accept undertaking or not take action

Board considers taking action

Board consults with local Health Complaints Entity

No

NoNo

No

No

No

Practitioner/student invited to make submission

Yes

Yes

Yes

Yes

Yes

Is immediate action required?

Assess risk and notificationReceive

noti�cation

A panel may decide to take no further action, refer the matter to HCE

or Tribunal, impose conditions; or caution or reprimand (PPSP only); or suspend registration

(Health Panel only)

Board may decide to caution, accept an

undertaking, impose conditions, refer to

another entity, or take no further action

Board proposes action and practitioner/student

invited to make submission

Reproduced with permission from AHPRA6

AHPRA complaints process (national)

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OHO complaints process (QLD)

Complaint accepted

Select relevant action

Assessment

Take immediate action

Local resolution

Conduct an inquiry

Conciliation

Investigation

Referral to another organisation e.g. AHPRA

Referral to the Director of Proceedings

Evaluate and decide action

Take nofurther action

Take nofurther action

Contact received

Reproduced with permission from OHO7

Investigation

Complaint aboutHealth Practitioner

Formal investigation

Resolved during assessment

Refer to another body

Discontinue

Complaint aboutHealth Organisation

Assessment

Refer to the Directorof Public Prosecutions

Make comments

Terminate

Complaint aboutHealth Practitioner

Complaint aboutHealth Organisation

Refer to professional council

No prosecution

Refer to the Director of proceedings

Prohibitionorder/public statement

Complaint proved/not proved

Prosecution

Resolution service

Monitor implementationof recommendations

Makerecommendations

Local resolutionRefer to

professional council

HCCC complaints process (NSW)

Reproduced with permission from HCCC8

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Remember!Take time to prepare your response, as a well-considered submission can be advantageous to the overall outcome.

Always ask Avant to review your response as you are emotionally involved and an objective opinion can be very valuable.

Familiarise yourself with the website of the appropriate state complaints entity as they can have useful information about the process.

Key messages ▶ Avoid a quick, unconsidered response.

▶ Seek guidance from Avant.

▶ Don’t take things personally.


A dermatologist receives a formal notification from AHPRA about a complaint from a patient upset that they were asked to obtain another referral before the dermatologist would review an ongoing health issue.

The dermatologist responded to the notification quickly in the heat of the moment with a condescending and poorly considered reply. This resulted in the action becoming protracted and caused a significant amount of stress for all involved.

Even when a formal complaint seems to be insignificant to you, it may be very significant to the patient and all matters should be handled in a well-considered, appropriate manner. Avant can assist you to review your response.

Complaint from a complaints entity or regulatory authority


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Chapter 3Privacy complaints Privacy complaint process | Office of the Australian Information Commissioner | Risk management advice

Avant is receiving an increasing number of notifications about privacy complaints. The Australian Privacy Principles (outlined in the Commonwealth Privacy Act 1988) set the expectations for medical practitioners and medical practices in managing private health information and are the rules by which a privacy complaint will be judged.

This chapter outlines how a privacy complaint made under Commonwealth privacy legislation will be dealt with.

The privacy complaint processA patient or other complainant is encouraged to complain directly to the medical practitioner or organisation in the first instance. If you receive a privacy complaint from a patient, you should deal with it as outlined in Chapter 1 of this handbook. Contact Avant if you have any questions or need advice.

New South Wales, ACT, and Victoria have specific legislation dealing with health records. Complaints may be made under Commonwealth privacy legislation or to state-based regulators in those jurisdictions.

The patient does have the option to lodge a more formal complaint to the Office of the Australian Information Commissioner (OAIC).

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Reprintted with permission

Complaint received by OAIC

You are notified about the complaint in writing

If no resolution, formal investigation proceeds

`If no resolution, matter forwarded to Privacy

Commission

Investigation to gather facts and early resolution sought

Conciliation and resolution

Complaints lodged with the OAIC The patient (or other complainant) may lodge a written complaint with the OAIC. The OIAC can investigate privacy complaints from individuals about Australian, ACT and Norfolk Island government agencies, and private sector organisations covered by the Commonwealth Privacy Act.

Generally, the OAIC will not investigate a complaint if it has not been raised with you first, unless the OAIC considers it was not appropriate for the patient to do so. The OAIC may decide on its own initiative to investigate an organisation about a privacy breach without a complaint from anyone.

The OAIC may decide not to investigate a complaint in certain circumstances, including instances when:

▶ the respondent has not had an adequate opportunity to respond to the complaint

▶ the complaint is made 12 months or more after the patient became aware of the privacy breach


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Possible outcomes if privacy complaint is determined by the Commissioner:

▶ The Commissioner may make a determination, which either dismisses or substantiates the complaint.

▶ The Commissioner may enforce an undertaking

- That a specific action be taken

- To refrain from a specific action.

▶ The Commissioner may seek an injunction (court order) directing a person to do a specific thing, or more commonly, not to do a specific thing.

For more serious or repeated offences, the Commissioner can apply to the Federal Court for a monetary penalty (fine) to be paid8.

▶ the OAIC considers it is a matter more appropriately dealt with by another law or body.

If the complaint is investigated, the OAIC may ask you to provide more information, and it is possible the matter will be resolved at this stage.

If the OAIC decides to investigate the complaint, you will receive a notification in writing with a copy of the complaint and any supporting documentation. You should contact Avant before providing a response to the OAIC.

OAIC will attempt to resolve the complaint through conciliation between you and the patient. Conciliation is a confidential process that aims to have the parties reach agreement to resolve the complaint. In a successful conciliation, the parties agree to resolve the complaint, and this can include agreeing to:

▶ rectify the situation, such as providing a copy of requested records

▶ change policies and procedures in your practice to prevent the same situation happening again

▶ apologise to the complainant

▶ compensate the complainant for their financial expenses.

If you do not reach agreement at the conciliation, the OAIC may make a decision about the complaint.

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Your complaint will be assessed by OAIC to see if it is something they can investigate

Your complaint is about something they

cannot investigate

Your complaint is about something

OAIC can investigate

OAIC need to conduct preliminary inquiries to see whether they can

investigate your complaint

They decide notto investigate yourcomplaint further

Your complaint will be closed

Appealrights

Determination

Conciliation and resolution

Earlyresolution

Investigation

Reproduced with permission from OAIC9

The OAIC complaint chart gives a general overview of the OAIC’s complaints process


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The OAIC complaint chart gives a general overview of the OAIC’s complaints process

Risk management adviceThere are several key things you can do to avoid privacy-related complaints, in particular:

1. Do not disclose patient information without consent or without lawful authority.

2. Have clear systems in place for the management of computer information security including passwords, electronic file back-ups and firewalls.

3. Educate reception staff about their responsibilities when handling patient information.

4. Exercise extreme caution when using social media.

5. Outline the process that patients can follow to make a privacy complaint.

Remember!Good policies and practices should always be in place, such has having a privacy policy available to patients, either visible in the waiting room of your practice or on your website.

Monitoring and reviewing complaints and feedback should be part of every practice. Information about near misses, adverse events and complaints provides an opportunity to improve the standard of service and care. This is what clinical risk management and quality improvement is all about.

Key messageKnow your responsibilities under the Privacy Act.9

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Chapter 4Support available through the complaints process Support available | A personal story | Looking after yourself | FAQs

All aspects of the complaints process, or when something goes wrong during the patient’s journey, can be stressful for you and other healthcare staff involved. Being aware of the processes and taking a proactive approach can help to minimise the stress for both patients and practitioners alike. Receiving a complaint from a patient can be very confronting and stressful, even if you think the complaint has no merit.

The information obtained and lessons learned from patient feedback and complaints can be used in your practice to ensure an environment of best practice and continuous improvement.

In this chapter, we take a more personal look at the impact a complaint can have on you and your clinical practice.

Member story: Keeping well while facing a medico-legal complaint - a personal story

Dr Varipatis, a GP from NSW, was sued for $350,000 after a judge found that he had been negligent in not referring a morbidly obese patient for gastric band surgery. Here, he explains what self-care measures he employed throughout the ordeal.

The story beginsIt was just a normal day. I was standing at reception and picking up a file when I got served. I opened the envelope and saw it was a Supreme Court document; I was being sued by a patient who I thought I’d looked after quite well for a long time and who I’d gone out of my way to take care of.

Stress symptoms I found that my mind was obsessing on the case 24/7 and it was too easy to let this take over. I started suffering the basic symptoms of anxiety with even occasional moments of panic, and found myself waking up in the middle of the night with the case on my mind. When it became evident that this case wasn’t going away, I decided I needed a strategy to deal with it so it wouldn’t affect my work, family life or health. To achieve this, I needed a plan to manage my cortisol levels as best I could.

A plan of actionI followed my own advice and engaged in the same type of stress management techniques that I would recommend to my patients. The first thing I decided to do was to change my attitude around this case. It


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Dr Emmanuel Varipatis

was self-evident that worrying and obsessing wasn’t going to change anything; so I made a deliberate decision that, as much as I could, I would stop worrying and just take whatever actions were required, as necessary.

Relationships and lifestyleI kept my wife involved and found that being able to ‘share’ the stresses made it easier for both of us. I made sure to keep up a nutritious diet and stuck to the rule of ‘early to bed, and enough sleep’.

Full steam aheadI increased my exercise from two hours to five hours a week with sessions of Pilates, walking and body surfing. I did lots of early morning walking sessions with mates around the headlands, followed by outdoor gym exercising, then body surfing and finally,

breakfast. This combination of social ‘guy time’ plus exercise was probably the best help of all in keeping me sane.

MeditationI restarted the regular practice of meditation. I find it easier to do if it’s ‘directed’, so would generally use phone apps that allow me to just put on headphones and listen to guided meditation and self-hypnosis sessions.

A set back with health implicationsWhen the judge found against me, the case received nationwide media coverage and I received lots of unwanted publicity. So even though I still felt I was coping well, it was at this point that my blood pressure went up and I had to commence medication for it.

It has proven to be a high-publicity case with unusual longevity; a marathon case that just keeps on going. As life stressors go, this case for me has ended up rating right up there with bad marital or financial stress; and I am certain that I would be ‘a mess’ now if I hadn’t worked out an action plan early on for managing the stress of this case.

A good outcomeThe Court of Appeal ruled in favour of Dr Varipatis, overturning the NSW Supreme Court’s earlier decision. The High Court of Australia has subsequently rejected the patient’s application for special leave to appeal the Court of Appeal’s decision, effectively closing the door to further appeal and bringing this stressful event to conclusion.

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Further proceedingsIf the matter proceeds to a further tribunal or review, or if it may be appealed, we will keep

you advised on any decision to appeal and discuss with you whether or how we can support you through an ongoing process.

Hearing and judgment

Claim settledCompensation

paid

Decision to settle or defend

Defence and hearing preparation

We will guide you through the dispute

resolution process up to the hearing if it proceeds that far, supporting you

through mediations, instructing a barrister if

required.

Review concludes in member’s favour

Adverse findings and/or conditions placed on registration

Complaints entity review processWe will prepare further submissions for

the disciplinary body’s review processes.

Preparation for formal disciplinary hearing

We will guide you through the preparation, and we will assign a

medical advisor and instruct a barrister if required.

Civil claim

No adversefinding

Professional conduct claimCoronial

Inquest and �ndings

Hearing and determination

No inquest required

Statement to coronerWe will assist you to draft a statement for the coroner.


We will guide you through preparation for the

inquest, preparing your representation and

obtaining expert reports if required.

Written response to health complaints entity

We will assist you to prepare your written response.

You contact Medico-legal Advisory Service

Early on we will connect you to our Personal Support

Program to help you manage what can be a very stressful

experience.

Claims manager assignedIf the claim is accepted, your

claims manager will be assigned and will review the

claim.

Conference with member and Avant teamThe meeting will include a claims manager, solicitor,

and medical advisor if required.

We provide advice or ask for further information.

Avant team investigatesWe will arrange legal advice

and expert reports as necessary to determine how to proceed. Depending on the type of claim, the next

steps may vary.

You think you have a claimFor example, you have received a civil claim, professional conduct

complaint or coronial inquiry.

What happens when you need our support?


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Further proceedingsIf the matter proceeds to a further tribunal or review, or if it may be appealed, we will keep

you advised on any decision to appeal and discuss with you whether or how we can support you through an ongoing process.

Hearing and judgment

Claim settledCompensation

paid

Decision to settle or defend


We will guide you through the dispute

resolution process up to the hearing if it proceeds that far, supporting you

through mediations, instructing a barrister if

required.

Review concludes in member’s favour

Adverse findings and/or conditions placed on registration

Complaints entity review processWe will prepare further submissions for

the disciplinary body’s review processes.

Preparation for formal disciplinary hearing

We will guide you through the preparation, and we will assign a

medical advisor and instruct a barrister if required.

Civil claim

No adversefinding

Professional conduct claimCoronial

Inquest and �ndings

Hearing and determination

No inquest required

Statement to coronerWe will assist you to draft a statement for the coroner.


We will guide you through preparation for the

inquest, preparing your representation and

obtaining expert reports if required.

Written response to health complaints entity

We will assist you to prepare your written response.

You contact Medico-legal Advisory Service

Early on we will connect you to our Personal Support

Program to help you manage what can be a very stressful

experience.

Claims manager assignedIf the claim is accepted, your

claims manager will be assigned and will review the

claim.

Conference with member and Avant teamThe meeting will include a claims manager, solicitor,

and medical advisor if required.

We provide advice or ask for further information.

Avant team investigatesWe will arrange legal advice

and expert reports as necessary to determine how to proceed. Depending on the type of claim, the next

steps may vary.

You think you have a claimFor example, you have received a civil claim, professional conduct

complaint or coronial inquiry.


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Key messagesTo optimise your wellness if faced with a complaint from a patient, focus on the following five areas:

1. Accept the unpredictability of the legal environment.

2. Exercise control where you can and make adjustments i.e. to your workload.

3. Get to grips with what it all means – spend some time reflecting.

4. Focus on coping strategies that enhance wellbeing.

5. Seek support – see your own GP as soon as possible if you have any symptoms indicating that you may be suffering from stress.

For confidential counselling, contact Avant’s Personal Support Service or the Doctors’ Health Advisory Service in your state or territory.

Remember!For advice on managing an adverse event, contact Avant’s Medico-legal Advisory Service.

For advice on how to look after yourself, see Avant’s Health and Wellbeing site.

Looking after yourselfFacing a complaint, litigation or a disciplinary hearing can be one of the most stressful events you may face and it carries both professional and personal impacts. One US study found nearly 40% of practitioners who had been sued experienced serious depression after the event, and in another study, doctors negotiating the medico-legal process were found to be more prone to the onset of physical illness, such as myocardial infarction or the exacerbation of an existing illness10.

In the face of a complaint, it is difficult not to become defensive. The temptation is to deny the issue, to blame the patient for being difficult, non-compliant or hostile. However, it does not help resolve the situation by fighting back or ignoring the problem. Ignoring the problem or handling it poorly may only create more stress.

If you made a mistake or are involved with an adverse event involving a patient, you may also struggle with feelings (appropriate or inappropriate) of guilt or incompetence, which may affect your ability to effectively communicate with the patient. These feelings need to be recognised as they may impact on your clinical care of that patient and other patients.

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Frequently asked questionsWhat if the complaint is trivial or vexatious?Some complaints are trivial or vexatious however, it is important to remember that a complaint that may seem trivial to you may have a great deal of importance to the patient. Each complaint should be given time and consideration to seek a resolution.

If you are concerned the complaint is vexatious in nature, it should still be treated in the same way as any other complaint. You should seek advice from Avant at the earliest opportunity to effectively manage the situation. It is our experience that vexatious complainants often raise multiple issues and their complaints are often the most difficult to resolve. The involvement of an objective representative from Avant as part of the complaint resolution process can often diffuse any frustrations, which arise for both parties as a result of, or during, the complaint resolution process.

Should a copy of the complaint be kept in the patient record?An annotated copy of the patient’s original written complaint, which is free from handwritten comment, should be retained in a complaints folder, separate to patient medical records. The final response, to the patient, should also be kept in this folder.

A complaints register should be retained by the practice manager or practice principal. This is a table or spreadsheet with the date of the issue, date complaint received, date response provided and action taken.

What if the complaint is something out of my control?The patient does not usually care who is to blame. What the patient is often seeking is information and resolution of their concerns. It is much more important for them to resolve the complaint than to lay blame, so always approach the situation showing a degree of empathy for what has happened and seek to resolve it.

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An example of this type of situation is an operation held up due to theatre delays which were out of the surgeon’s control.

What are the possible consequences of a poorly managed complaint?Effective handling of patient complaints can be key to the success of a practice. It is also important for your professional reputation. Patients are more likely to share a negative experience than a positive one.

It is important to view the complaint from the patient’s position. Most people don’t enjoy making a complaint so they are likely to have high levels of emotion such as fear or anger. If the complaint is managed poorly, they may respond in an exaggerated way as a result of their frustration – be aware that this may unfold within social media. Once comments are posted on social media, it can be very difficult to retract these or have them removed even once the situation has been resolved.

Poor complaint management can lead to:

▶ breakdown of the doctor-patient relationship

▶ poor health outcomes for the patient

▶ damaged reputation

▶ loss of income

▶ escalation of the complaint to a more formal process.

We recommend having an established process in place to deal with complaints, which all staff are aware of, in order to reduce the chances of a mishandled complaint.

What is professional misconduct, unprofessional conduct and unsatisfactory professional performance?When health practitioner regulators (such as AHPRA, HCCC, OHO) receive complaints, they need to consider whether the complaint suggests the practitioner has engaged in unsatisfactory professional performance, unprofessional conduct or professional misconduct.

Professional misconduct is substantially below the standard reasonably expected, more than one instance of unprofessional conduct when considered together that is below the standard reasonably expected and conduct (whether in connection with the doctor’s practice or not) that is inconsistent with the doctor being a fit and proper person.

Unprofessional conduct is conduct of a lesser standard than that which might reasonably be expected of a doctor by the public or the doctor’s peers.

Unsatisfactory professional performance is when the doctor’s knowledge, skill or judgment are below the standard that is reasonably to be expected.

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References1 Bismark, M et al., Identification of doctors at risk of recurrent complaints: a national study of healthcare complaints in Australia. BMJ Qual Saf 2013;22(10):879–880 Available from: http://qualitysafety.bmj.com/content/early/2013/02/22/bmjqs-2012-001691.full

2 Fong, J. Longnecker, N. Doctor-Patient Communication: A review. Ochsner J 2010;10(1):38–43.

3 Royal Australian College of General Practitioners, Standards for general practice, 4th ed. Available from: http://www.racgp.org.au/your-practice/standards/standards4thedition/

4 Gautam, M. Coping with Complaints Medical Post 2014; August 24, p.22.

5 Biskmark, M. (2014) mandatory reports of concern about health performance and conduct of health practitioners. Medical Journal of Australia 201(7): 399-403

6 Australian Health Practitioner Regulation Agency. Complaints and feedback. Available from: http://www.ahpra.gov.au/about-ahpra/complaints.aspx

7 OHO complaints process http://www.oho.qld.gov.au/health-service-providers/what-happens-when-the-oho-receives-a-complaint/

8 HCCC. Responding to a complaint directly. Available from: http://www.hccc.nsw.gov.au/Information/Information-For-Health-Providers/Responding-to-a-Complaint---Full-document/default.aspx or http://www.hqcc.qld.gov.au/Complaints/Pages/Tips-for-providers.aspx

9 Office of the Australian Information Commissioner privacy resources can be found at:

Privacy guides available from:

http://www.oaic.gov.au/privacy/privacy-resources/privacy-guides/

Privacy fact sheets from:

http://www.oaic.gov.au/privacy/privacy-resources/privacy-fact-sheets/

10 Nash, L et al. Curtis, B., Walton, M., Willcock, S. and Tennant, C. The response of doctors to a formal complaint. Australasian Psychiatry 2006;14(3):246–250.


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SupportAt Avant we have supported many of our members through stressful and the time-consuming complaint processes. We are aware of the toll it may take on our members, both personally and professionally.

Our support includes:

Call 1800 128 268

Visit avant.org.au/mlas

Email [email protected]

Fax 1800 228 268

Visit avant.org.au/health-and-wellbeing

Visit avant.org.au/avantlearningcentre

Avant Health and Wellbeing website:

Avant Learning Centre:

Avant Medico-legal Advisory Service:

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Avant Learning Centre provides market-leading education resources for the medical profession.

Avant members, log on to avant.org.au/avantlearningcentre/handbooks where you may be eligible for CPD/CME points for reading this handbook and completing the associated questions.

If you are reading this online and would like a hard copy, please email [email protected] with your member ID and postal address.

New South Wales

Level 28, HSBC Centre, 580 George StreetSydney NSW 2000PO Box 746 Queen Victoria Building NSW 1230Telephone 02 9260 9000 Fax 02 9261 2921

Queensland

Level 11, 100 Wickham StreetFortitude Valley QLD 4006GPO Box 5252 Brisbane QLD 4001Telephone 07 3309 6800 Fax 07 3309 6850

South Australia

Level 1, 195 Melbourne StreetNorth Adelaide SA 5006GPO Box 1263 Adelaide SA 5001Telephone 08 7071 9800 Fax 08 7071 5250

Tasmania

Suite 4, 147 Davey StreetHobart TAS 7000PO Box 895 Hobart TAS 7001Telephone 03 6223 5400 Fax 1800 228 268

Victoria

Level 2, 543 Bridge RoadRichmond VIC 3121PO Box 1019 Richmond North VIC 3121Telephone 03 9026 5900 Fax 03 8673 5015

Western Australia

Level 1, 91 Havelock StreetWest Perth WA 6005PO Box 950 West Perth WA 6872Telephone 08 6189 5700 Fax 08 6189 5713

1800 128 268 avant.org.au

3817 09/16 (0591)

WHEN PATIENTS COMPLAIN - Avant

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