Vexing not vexatious: Report finds more risk in not reporting

16 Apr 2018

New independent research commissioned by the Australian Health Practitioner Regulation Agency (AHPRA) takes a first international look at vexatious complaints, finding there is more risk from people not reporting concerns than from making dubious complaints.

It also found that while being on the receiving end of a complaint is tough – the complaint is much more likely to be vexing than vexatious.

AHPRA commissioned the research from the School of Population and Global Health, University of Melbourne to find out the size of the problem of vexatious complaints and identify how they can be better prevented, identified and managed. AHPRA initiated the work in line with its commitment to the Senate Affairs Reference Committee inquiry into the medical complaints process in Australia.

The report found that the number of vexatious complaints dealt with in Australia and internationally is very small, less than one percent, but they have a big effect on everyone involved. The research also confirms that the risk of someone not reporting their concerns is greater than if the complaint turns out to be vexatious.

Most of Australia’s 680,000 registered health practitioners provide great care, but patients also have the right to make a complaint when things don’t go so well.

Commenting on the report’s release, AHPRA CEO Martin Fletcher said it was important to take an international and evidence-based view on vexatious complaints.

‘The Senate committee quite rightly asked the question – is this a big problem in Australia? We also wanted to know the answer to this, given we get more than 10,000 complaints each year and the number keeps rising.

‘We commissioned this research to find out: is there a potential for misuse of our complaints processes for health practitioners? Are vexatious complaints against health practitioners a big problem in Australia?’

So what does the evidence show?

‘When a complaint is made about a health practitioner it is not immediately obvious that it is vexatious. And in the event that it is potentially vexatious, there may still be genuine risk to patients involved. Our primary concern is to protect the public, so even if the intent behind a complaint is vexatious we have to make sure we manage any risk to patients,’ Mr Fletcher said.

Associate Professor Marie Bismark says that being on the receiving end of a complaint is a distressing experience for any health practitioner, and regulators need to have good processes for dealing with unfounded complaints quickly and fairly.

‘Our research found that the term “vexatious” is often loosely used in debate to refer to complaints that may simply have been the result of a miscommunication or a misunderstanding. A truly vexatious complaint is a complaint that is groundless and made with the intent of causing distress or harm to the subject of the complaint,’ Assoc Prof Bismark explains.

While vexatious reports are frequently talked about, Assoc Prof Bismark maintains there is very little hard evidence about how often they occur. The best available evidence suggests that truly vexatious complaints are very rare, and that under-reporting of well-founded concerns is likely a far greater problem.

‘There is a common misconception that a complaint must have been vexatious if it resulted in no regulatory action. However, a decision by a National Board not to take regulatory action does not mean that the complaint was unfounded or made in bad faith. For example, a risk to the public may have been adequately addressed between the time the complaint was made and when the investigation concluded,’ she says.

‘This is not an issue that is unique to healthcare. Around the world, regulators from different sectors are occasionally faced with people who make repeated, unreasonable and fervent complaints or intentionally misuse complaints processes. Our research identified some helpful processes for identifying and responding to this type of complaint in a timely way. Efforts to better prevent and manage vexatious complaints must be carefully designed so they don’t discourage those with legitimate concerns from coming forward,’ she added.

The report will be used to inform best practice for reducing, identifying, and managing vexatious complaints and helps to identify opportunities to work with others to help reduce their frequency and adverse consequences.

‘Managing vexatious complaints is not a one agency problem and others have a significant part to play when they do occur. As usual, prevention is better than cure. We are using the research findings to help improve our processes and protect the public. We are reassuring notifiers that we’re taking their concerns seriously and encouraging practitioners on the receiving end of a complaint to reflect on their practice, so they keep improving their care,’ Mr Fletcher said.

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Page reviewed 16/04/2018