02 Nov 2023
Landmark outcome supports goal to eliminate racism from Australian healthcare.
An ACT doctor has been prohibited from providing any health service and cannot apply for registration for 12 months after a landmark ruling over discriminatory and offensive behaviour.
The banned doctor, whose name has been supressed by the ACT Civil and Administrative Tribunal, admitted that his conduct towards Ophthalmologist Associate Professor Kris Rallah-Baker, a Yuggera, Warangoo and Wiradjuri man, was culturally unsafe, insulting and offensive.
This outcome is in line with a recent strengthening of the National Law, which means that tribunals and other health regulatory decision makers must consider racist and culturally unsafe practices when deciding matters of professional misconduct.
The Medical Board of Australia referred the now retired ACT doctor to the tribunal over an offensive email sent to A/Prof Rallah-Baker, which included insulting and culturally unsafe comments.
MBA Chair Dr Anne Tonkin said: ‘The tribunal’s ruling is a clear message that racist and culturally unsafe practice and behaviour is unlawful and carries substantive penalties, including disqualification from registration.
‘We acknowledge the impact this has had on A/Prof Kris Rallah-Baker and his family over the past two years and hope this outcome can help in their healing.’
Ahpra CEO Martin Fletcher said: ‘These reforms are underpinned by undisputed evidence that racism in all its forms - systemic, institutional and interpersonal - is harmful.
‘The tribunal’s finding further highlights that racist and discriminatory behaviours will not be tolerated in Australia’s health system.’
The Australian Health Practitioner Regulation Agency’s Aboriginal and Torres Strait Islander Health Strategy Unit (HSU) advocated for the critical legislative reforms to support its transformative work towards eliminating racism in healthcare as a matter of urgency.
HSU National Director Jayde Fuller, a Gomeroi woman, said, ‘this outcome is vindicating for Aboriginal and Torres Strait Islander Peoples whose experiences of racism in healthcare settings, as a consumer or practitioner are minimised or refuted entirely.’
‘With the newly established Aboriginal and Torres Strait Islander National Special Issues Committees as decision-makers on matters, the active recruitment of Aboriginal and Torres Strait Islander staff handling complaints involving us, and a dedicated Indigenous led working group to reform the cultural safety of the complaints processes – we have a clear path forward to tackling racism in healthcare towards our people.'
Co-chairs of the Aboriginal and Torres Strait Islander Health Strategy Group, Birri-Gubba and South Sea Islander woman, A/Prof Carmen Parter and Kuku Yalanji man, Karl Briscoe said,
‘The ruling sends a clear message that racism and discrimination towards fellow professionals will not be tolerated.’
In its October ruling, the Tribunal reprimanded the doctor after finding his behaviour constituted professional misconduct. The Tribunal disqualified the doctor from applying for registration as a health practitioner and prohibited him from providing any health services for 12 months.
Senior Tribunal members found: ‘in the email the respondent displayed discriminatory and offensive behaviour which had a deleterious emotional effect on Dr Rallah-Baker’.
‘The Tribunal finds that the respondent’s comments in an email he forwarded to Dr Rallah-Baker treated Dr Rallah-Baker less favourably than other persons because of his racial background,’ the Tribunal found.
‘The respondent engaged in further misconduct in his interaction with the Australian Health Practitioners’ Regulatory Authority (sic) by making disrespectful, offensive and culturally insensitive comments about Dr Rallah-Baker, whom the respondent did not know and had never met.
'He also made offensive comments about Australians who identify as Indigenous and have mixed Indigenous and non-Indigenous heritage, the members of the Medical Board of Australia and employees of Ahpra. This conduct is unbecoming of a medical practitioner and, in our view, has the potential to bring the medical profession into disrepute.’
The Tribunal decided to suppress the name of the retired doctor after determining that the risk in publishing his name outweighed any public benefit in doing so. A/Prof Rallah-Baker took the unusual step of requesting the tribunal did include his name in its published findings because he said ‘it was important for me that this outcome wasn’t faceless, for people to see they won’t be brought down if they complain about racism, and if they need to reach out, they can.’
‘Racism in the healthcare system contributes to patient harm and premature death,’ A/Prof Rallah-Baker said.
The tribunal’s full decision was published on by the ACT Civil & Administrative Tribunal on 24 October 2023.
Aboriginal and Torres Strait Islander ways of being, knowing and doing guides Ahpra’s Aboriginal and Torres Strait Islander Health and Cultural Safety Strategy 2020-2025 work to eliminate racism in the organisation and healthcare.
The Aboriginal and Torres Strait Islander Health Strategy Unit (HSU) is driving the implementation of the strategy, including embedding cultural safety and the elimination of racism in healthcare into Australian legislation.
This amendment to the National Law includes an objective to build the capacity of the Australian health workforce to provide culturally safe health services to Aboriginal and Torres Strait Islander Peoples and a guiding principle that the registration scheme is to ensure the development of a culturally safe and respectful health workforce that is responsive to Aboriginal and Torres Strait Islander Peoples and their health and contributes to the elimination of racism in the provision of health services.
This legislative amendment is supported by an agreed definition of cultural safety reflected in the codes of conduct for more than 850,000 registered health practitioners. This means that culturally unsafe, racist practice cannot be ignored by regulatory decision makers, including the independent tribunals who decide matters of professional misconduct.
Ahpra CEO Martin Fletcher said Ahpra’s primary role is to protect the public. National Boards set standards that all registered health practitioners must meet.
‘Cultural safety is clinical safety, and required by the National Law,’ Mr Fletcher said.
‘Registered health practitioners are also expected to take steps to educate themselves on cultural safety.
Ms Fuller said National Board Codes of Conduct for the professions condemn discrimination and racism in practice, but these behaviours still exist.
‘Cultural safety enshrined in the national law is added protection for Aboriginal and Torres Strait Islander health consumers and practitioners,’ Ms Fuller said.
‘It ensures that every part of Ahpra and national boards are working within the same principle and towards the same objective, that is to provide culturally safe health services to Aboriginal and Torres Strait Islander Peoples.
‘Ahpra is creating a culturally safe notification process for Aboriginal and Torres Strait Islander Peoples making a complaint. It is finalising Aboriginal and Torres Strait Islander special issues committees to review complaints. We are close to releasing an anti-racism policy.
`The HSU is also developing cultural safety continual professional development (CPD) for all registered health practitioners.
`We are taking a strategic approach to dismantling all forms of racism, systemic, institutional and interpersonal. This includes ownership and accountability by providers, practitioners and regulators to creating safe healthcare.’