JustPaste.it

AHPRA investigator accused of ‘editing’ evidence used to suspend GP under emergency powers

https://www.ausdoc.com.au/news/ahpra-investigator-accused-of-editing-evidence-used-to-suspend-gp-under-emergency-powers/


December 1, 2022 Australian Doctor
AHPRA investigator accused of ‘editing’ evidence used to suspend GP under emergency powers
The changes were subsequently used by both the medical board and tribunal to suspend the doctor, said the Supreme Court judge


A GP has been given the green light to return to practice after a court found an AHPRA investigator had edited evidence used by the Medical Board of Australia to suspend him under emergency powers. The doctor – known under the pseudonym Dr Shah – was originally charged with trespass and assault after a practice receptionist told police he had broken into her home and groped her.

 

The day after the alleged attack, she sent him a text message: “You sexually assaulted me in my car.
“And you broke and entered my premises. Other people are aware of this situation. From this point on, if you are not 100% professional towards me in the workplace, I’ll be filing a police report and having you charged.
“Do not contact me again privately … This is your first and final warning.”

 

Following his arrest, the Medical Board of Australia suspended the GP under emergency powers, deeming him a risk to both patients and the practice staff where he worked. However, six months later, the criminal charges were withdrawn, with the Director of Public Prosecutions saying there was not a reasonable prospect of a conviction amid concerns over the receptionist’s credibility. By then, the SA Civil and Administrative Tribunal was hearing Dr Shah’s appeal against his emergency suspension.

 

With the tribunal yet to reach a decision, his lawyers told the tribunal that the criminal charges had been dropped. However, when the tribunal finally released its decision on whether to lift the suspension in May this year, it decided to uphold the board’s decision.  Stressing that the decision to drop the criminal charges was a “relevant and significant” factor in the context of an immediate-action decision, the tribunal said it still believed the GP posed a serious risk to the public.

 

Pointing to various witness statements provided to an AHPRA investigator, the tribunal found that the “vulnerable” receptionist believed her job could be at stake if she upset the GP, who had occupied a position of power. It went on to describe Dr Shah’s claim that the receptionist had consented to intimate behaviour as “bizarre”, referring to two of the receptionists’ friends who had reported that she had made it clear his attention had not been welcome.

 

If the allegations were proven at a subsequent hearing, his conduct would be “inconsistent” with fitness to practise and would raise “fundamental issues about his character, interpersonal skills and emotional intelligence,” the tribunal said. “Until the allegations are resolved, we do not think it appropriate that any female staff member or colleague should be asked to work with the applicant.”

 

However, the Supreme Court of SA has now found that the tribunal made a series of serious errors in the handling of the case, saying it had largely ignored the reasons for the criminal case against the GP being abandoned, deciding instead there was still a “reasonable evidentiary case” against him.

 

In a twist, the court said one of the police officers in the case — a Detective Thompson — had told an AHPRA investigator shortly after the receptionist made her allegations that her credibility was not reliable. The judge, Justice Malcolm Blue, went on to raise concerns about the decision by the AHPRA investigator to edit the detective’s comments in her file notes before handing them to the medical board, which was tasked with deciding whether to impose the emergency suspension.

 

Justice Blue said the AHPRA investigator had also removed references to claims the receptionist had a criminal background and had been sectioned under the Mental Health Act 2009 (see box for more details).
It later emerged that the receptionist had been detained by police on mental health grounds just days after making a police complaint about the GP.

 

The judge said: “The conduct by [the AHPRA investigator] in editing the file note demonstrated that her ‘evidence’ of her discussions with external parties in the course of the investigation could not be relied upon.”
He stressed the tribunal had made its decision to uphold the GP’s suspension after being informed by the medical board of the edits as well as news that the police were dropping the charges against the GP.
It’s decision was partly based on his alleged inability to “read” other people, which the tribunal argued put patients at risk because he might not be clear if they were consenting to treatment or not.

 

This turned out to be based on the AHPRA investigator’s interview with a former practice manager who had described the GP as an “awkward communicator” who had made staff uncomfortable by mentioning he was an “eligible bachelor” and asking if they had boyfriends.

 

But the judge said the information from this interview was hearsay.

 

The tribunal had no way of knowing if the AHPRA investigator’s file note was a “comprehensive, balanced or accurate note”, he said, especially given the practice manager did not witness the conversations. “It is not even apparent from the [AHPRA] file note whether the person who informed [the former practice manager] of the conduct themselves was conveying hearsay statements by others,” he added. “The ‘evidence’ by [the AHPRA investigator] was not first-hand evidence, and it may not even have been second-hand hearsay evidence.”

 

Regardless, the doctor’s discussions about “romantic possibilities” with staff were “low on a scale of seriousness” and could not justify a finding that he posed a risk to patient safety, Justice Blue added. “They had nothing to do with medical treatment and could not comprise any basis to suspect that [the GP] lacked an ability to judge whether a patient is consenting to medical treatment,” he wrote. “[The GP] had, as at 2020, practised as a doctor for 25 years.


“There was no suggestion at any point over that entire period that he lacked an ability to judge whether a patient is consenting to medical treatment or more generally that there were any concerns whatsoever about his medical skills and abilities.  “On the contrary, the numerous references that were produced to the tribunal attested fulsomely to his medical skills and abilities,” Justice Blue said. “Four different medical practices in SA were willing to engage [him] as a GP in the knowledge of the allegations.”


Justice Blue concluded that adding conditions to the GP’s practice — such as preventing him from having social contact with staff without a third party present — would satisfy the public interest pending a formal hearing of his case. “There are no reasonable grounds to believe that suspension is necessary in the public interest,” he wrote.


Before and after? The AHPRA investigator’s file edits

 

In February 2021, shortly after the receptionist made the allegations to police about the GP, an AHPRA investigator spoke with the police officer who had interviewed a friend of the receptionist, called Brett, about what had happened. On 18 February, the AHPRA investigator wrote up the following file note:
“Brett said that [the receptionist] has mental illness and “is not quite right in the head” but that she is legitimately petrified because she is worried about her job, so she is nice to him.

 

“Her concern was who was going to believe a mentally ill, low-income-earning woman with criminal history — drink driving and assault police (throwing toilet water in the cells at police when being detained previously under Mental Health Act).

 

According to the Supreme Court judge, all the words in bold, including references to the receptionist’s alleged criminal history and mental health issues, were removed in the edited version of the note. The edited version, which was sent to the medical board, read:
“Brett said that [the receptionist] has mental illness but that she is legitimately petrified because she is worried about her job, so she is nice to him. Her concern was who was going to believe a low-income-earning receptionist over a doctor. She was also worried about her employment.”

 

Another of the investigator’s original notes, also made on 18 February, read:
“[The police investigator] states that he is inclined to believe Brett. It didn’t sound like he was just trying to back [the complainant] up.  “However, her credibility as a victim is not reliable, but he thinks he can charge [the GP] with indecent assault based on the corroboration by Brett and maybe Emma [another friend] … when he can speak with her.“

 

But again, the text was edited. According to the Supreme Court, the words in bold relating to the receptionist’s credibility were removed when the edited file note was handed to the medical board tasked with making the decision to suspend the GP.

 

The file note read instead:
“[The police investigator] states that he is inclined to believe Brett. It didn’t sound like he was just trying to back [the complainant] up.” The Supreme Court judge said no explanation was given to the tribunal for the editing of the original in the version provided to the medical board or the tribunal. He added: “That editing was a very serious matter that impacted directly on the reliability of [the AHPRA investigator’s] evidence. “She must have known that the board would rely on her file note in making a decision whether to take immediate action.
“She should have known that the board would expect her to provide to it a balanced account of her conversation with [the police detective] and not to edit out matters that weighed against the taking of immediate action or weighed in favour of Dr Shah.”

 

“The [detective’s] statements to [her], as outlined in the original 18 February 2021 file note, that the complainant’s ‘credibility as a victim is not reliable’, that the complainant had been detained previously under the Mental Health Act 2009 (SA) and that the complainant had a criminal history, including assaulting police, were clearly matters that weighed in favour of the GP. “The position is exacerbated by the fact that no explanation was proffered to the tribunal for the editing.”