Vexatious Notifications: The bane of an honourable profession
AHPRA has defined a vexatious notification as: “One without substance, made with the intent to cause distress, detriment or harassment to a practitioner named in the notification.”
The practice of medicine is treacherous. The risks posed from clinical practice are high in all respects. The more a health practitioner works, from podiatrist to neurosurgeon, the higher their risk. From litigation to insurance issues, audits, complaints , vexatious complaints and notifications, clinical practice can be extremely challenging.
A reporting to an investigative body can be devastating to a doctor just as well as to a physiotherapist or dietician. It can be career destroying, soul crushing and the conduit to successful suicide, psychological breakdown, family breakdowns and many ugly scenarios. Defending oneself is costly, very costly. Costly in money, time, emotional well being and fortitude.
I have been reported twice to AHPRA. The only official reportings I have ever had. Both times were vexatious. Both times I was fortunate enough to defend myself successfully and have the complaints dismissed. Had I relied on my indemnity insurance, I feel I would have been up a creek without an oar.
The first reporting was consequent upon me making public interest disclosures about safety a big State Hospital. This has led to an ongoing protracted and expensive legal saga. I successfully defended myself before Ahpra with what was quite evident a vexatious notification and the sued Gympie Hospital and the Sunshine Coast HHS, Dr Preety George and Dr Terry Hanelt. On the face of the initial reporting however, information was distorted. I served a concerns notice on the notifier and received a response from the Local Hospital and Health Service’s in-house counsel that was what led to the legal proceedings.
Within a very short space of time, the independent Law Firm Corrs Chambers Westgarth made it impossible to pay for legal representation. They employed a form of litigation that can only be described as malignant. The matter continues in that I am still under financial servitude- ie bankruptcy for another 8 months and my opponents are still active as perpetrators of my financial servitude.
I should write a book about surfing bankruptcy for doctors. Was not easy but once you have the hang of it, it has its perks. Having a Chartered Accountants firm, with oncall lawyer, and backup mega lawfirm looking after their interests which amount to your income potential is somewhat empowering and insulating. Understanding the workings of financial instruments and legal entities and employee vs contractor status requires somewhat less than a legal degree, but having one or two helps.
That first AHPRA reporting has now probably earned about $10 000 000 in legal fees, time etc for all the lawyers that have had to read the paperwork, Not because or APHRA but because I had the obesity to sue the perpetrator, My balls up was that she was defended by State legal representatives that were shadey or dodgey for clarification. My direct recall being was that the in house counsel was a bit of a Cruella DeVille . The matter is widely accessible through the law reports. They make me out to be a psychopath of sorts- I assure you I am not- I JUST HATE BULLIES. Please google the outcome of the first case, it will certainly lead onto a second chapter somewhere down the line. When all of the information is looked it, it makes for a compelling “Why Every Doctor Should Do A Law Degree” synopsis.
The second AHPRA reporting I had was as dastardly as the first. I was reported by a RACF Manager for giving my RACF patients the flu-vaccine at the beginning of the covid pandemic
The following is a sanitized version contained in my subsequent concerns notice to the RACF.
“Concerns Notice in terms of section 14(2) of the Defamation Act 2005 QLD
Attention: RACF Board
Re: Reporting to the Office of the Health Ombudsman Qld and AHPRA of me, Dr Navin Naidoo by Japara Staff.
This letter serves as a Concerns Notice and Letter of Demand for action.
On the 16 April 2021, Japara staff made a reporting to the OHO which was subsequently referred to AHPRA.
The reporting by Japara constitutes the Publication of defamatory material and/or imputations about me, and as such are imputations of concern as envisaged by section 14(2) of the Defamation Act. The imputations of concern particularised are as follows:
That I did not have consent to vaccinate these patients and further that I inappropriately documented that I had consent.
Please be informed, the reporting is not only disingenuous and vexatious, but incorrect as well. The reporting had been designed to mislead.
AHPRA has defined a vexatious notification was: “One without substance, made with the intent to cause distress, detriment or harassment to a practitioner named in the notification.”
The reason for the above contention is the following:
1) Essential information, known to japara and its employees, was deliberately ignored in the making of this reporting. The reporting was disingenuous and was framed in a way to maximize damage and provoke the cessation of services to Japara by myself and the surgery that has had the care of these patients, some since 2015, and one patient from 2012. Critical information relevant to the reporting seems to have been deliberately left out to magnify the reportings effect and ill imputations to me.
2) The patients involved have all been patients under my care for a minimum of 3 years except DH who has been a patient for almost 3 years.
3) Of all the patients, only 3 can be conserved incapable of consenting to a flu vaccine. All 3 of these patients EPOA’s have previously given explicit consent to do anything necessary for their relative’s well-being, short of CPR/ICU admission/Intubation and artificial ventilation.
4) 6 of the patients vaccinated that day are competent to give consent for a flu vaccine and like all the others, tacitly gave consent and voluntarily exposed their arms for the vaccine once it was discussed with them. Regardless, there has always and still is ongoing consent from each EPOA for continued care of anything considered necessary for the patient’s well-being including the flu vaccine.
5) The patients involved and the dates upon which I became involved in their care is recorded below:
a)
6) All of these patients and/or their EPOAs consented to the use of the Flu Vaccine and a yearly flu vaccine has been part of the expected care of all of these patients from prior to me becoming involved in their care.
7) I have given all these patients the flu vaccine last year and most of them for several years now.
8) In each case, the appointed EPOA’s have given consent to proceed with any treatment considered to be in the best interest of the patient by myself. This consent has previously extended to the flu vaccine as well. This consent would have been given shortly after care of the patient was taken over by me in either a case conference or telephone discussion.
9) Consent for the ongoing care of a RACF patient, including the routine administration of a flu vaccination in a patient that has previously had it, is partly covered by any Advanced Health directive.
10) Every EPOA has re-affirmed their consent for any necessary medical therapy or input that is considered beneficial by the treating physician and general body of physicians, and that the patient has had preciously.
11) Considerations around the day the vaccinations were administered are the following:
a) There is and has been a Global and National pandemic involving the covid 19 virus.
b) There is and has been a National drive for RACFs to deal effectively with CV19 and many other neglected issues which were highlighted in the recent Royal Commission’s findings.
c) There has been a National awareness program put out about the importance of both the influenza vaccine and covid vaccines, especially for vulnerable populations, and the importance of getting these as early as possible. These bulletins, directives and advice were put out to RACF’s from much earlier than 08.04.2021.
d) It is generally considered the RACF’s responsibility to get consent for National vaccine programs and any National program that would require EPOA consent. This extends to all financial consents for payment to the RACF.
e) In the 2 weeks prior to the vaccinations being administered, several enquiries to the RACF staff was made by me as to when the covid vaccination program was to be initiated at the relevant RACF so as to factor in the 2 week period of no other vaccines being able to be administered, especially the flu vaccine because such should ideally be administered as soon as possible once available as per National and Global guidelines.
f) To date, I have still not been informed of this vaccination date. Today being 29.04.2021.
g) The surgery charged with the relevant patient’s care received the State supplied flu vaccinations in the week preceding 08.04.2021.
h) The Covid vaccines were still to be delivered at an unknown future date but was expected even if late.
i) On the morning of 08.04.2021, I had a call with an RN from Japara about a patient. This was before 09:00am and after dealing with the issue at hand, I advised that the Flu vaccines had arrived and that I would attend later in the day to administer such to all the patients under my care.
j) I was told by the RN that this would not be possible as I did not have consent.
k) I was taken aback and asked for an explanation. I was advised that management had declared that all flu vaccine patients needed to have EPOA consent. I advised the RN that I had pre-existing consent, that I had vaccinated the patients concerned last year and that I did not need a new EPOA consent for the flu vaccine. These were all existing patients that had previously been vaccinated for the flu by me, and that all had existing AHD’s and consent from their EPOA’s to do anything needed that was required for the ongoing care of their relatives. I advised the RN that if any of these were new patients and incapable of giving consent themselves, then I would need an EPOA to give consent prior to any administration of medication.
l) I advised the RN and a CCC later on in the same call, of the content covered in the paragraph above. I also advised that I would attend later in the day to administer the flu vaccines especially since there was not even a prospective date given for the expected covid vaccination program, and if the patients did not get the flu vaccine on that day when I was able to attend and administer such, then there was a possibility that they may not get the flu vaccine for several months.
m) At a certain point I was told that the RACF prohibits me from giving my patients the flu vaccine until all the EPOA’s had given written consent for such. This took place on 08.04.2021, after global, national, and state information programs about the necessity of the flu and covid vaccines for the better part of the year preceding the 08.04.2021, and on the background of the RACF not having obtained this consent timeously, or at all at the time.
n) I was not only taken aback by the nurse’s statement but somewhat upset about the lack of planning and the prohibition threat that was thrown at me.
o) I said the following words that I regret “ admin can kiss my black ass, I am still coming to give my patient’s their vaccines today.”
p) I attended later that day at the RACF from the surgery. All cold chain procedures and formalities were adhered to. Every patient, apart from 1, could understand the need for the flu vaccine and consented on the day tacitly and explicitly. Each of these patients pulled their sleeve up and offered their shoulder for the vaccine. The one patient that was unable to give consent has an ongoing advanced health directive that allows for the flu vaccine. With this patient, there has been lengthy discussions previously with the EPOA and consent for any necessary treatment was given previously more than 2 years ago. This previous consent covered the flu vaccine that I administered to this patient last year.
q) I also advised that if the RACF required any consents they should obtain such prior to me attending several hours later that day. I re-affirmed that I has pre-existing consents from all EPOA’s to do anything needed for the promotion of their relatives health as per previous discussions and that this included the flu vaccine.
r) All enquiries made as to when the covid vaccines would be available and rolled out were fruitless. Enquiries were made through the surgery to the PHC and to several staff of the RACF by me, including to the Home Manager, Clinical Care Coordinators and registered nurses.
s) I was aware that the surgery was to have the first batch of covid 19 vaccines delivered the week after the 08.04.2021 and we had already started preparations for the effective and efficient roll-out. All of the patients at the RACF automatically qualify for the earliest covid vaccine and I made accommodation for the instance that If the covid rollout at the RACF took place within 2 weeks of me administering the flu vaccine, then I would vaccinate all of the RACF patients through the surgery if they were not vaccinated during the rollout. The chance of that happening, ie, the RACF getting the covid vaccine within a 2 week period of the 08.04.2021 looked extremely remote and near impossible at the time. Now, 6 full weeks later, there still is no definite plan for the RACF covid roll-out.
t) Patients that have not been given the flu vaccine in RACF’s may now face a lengthy delay due to the delayed covid 19 vaccine rollout delay. Had I acquiesced to the Japara staff members unorthodox position on the day, my patients would all be in just that position.
12) “Patients with a severe mental health condition, such as schizophrenia, bipolar disorder or dementia, lack the capacity to consent to the treatment of their mental health- in these cases, treatment for unrelated physical conditions still requires consent, which the patient may be able to provide, despite their mental illness.”[1]
13) “Dementia, delirium, depression, psychosis, and drug intoxication, along with other psychiatric syndromes, can affect a person's capacity to provide consent for treatment. Conversely, having any one of these conditions does not per say, indicate a lack of capacity to consent to treatment.”[2]
14) “Evidencing a choice is crucial to the determination of competency because if a person is unable to reach a decision or communicate their preference to their care provider, then they will be held incompetent.”[3]
15) Every patient that was vaccinated by me that day was greeted usual as follows “ Hello ……- it’s me Dr Naidoo- your doctor- and how have you been doing? “After a little chit chat I usually say “ I have come specially to give you your flu shot. Is that OK. Its only a little sting with very rare side effects. The Government is saying we should all be having it as soon as possible. You always have it at this time of the year which is the best time, before the cold weather and colds and flu’s start. Don’t want to be getting the flu if we can stop it now do we?”
16) Every one of my patients except one (JW 87 Female) verbalised their consent to proceed and most held up their sleeve or advanced their arm/shoulder to allow the vaccination. 6 of these patients are fully competent to make a decision on the flu vaccine for themselves. The 2 remaining patients have been patients of mine for some time and have ongoing Advanced Health Directives and permission from their EPOAs to do whatever is considered best practice and for their relative’s benefit.
17) Through the years I have had numerous meetings, teleconferences, telephone discussions, face to face surgery consultations and formal RACF case conferences with an EPOA for Health, or substitute decision maker for every RACF patient that I have taken care of. One of the fundamental reasons for these correspondences and interactions if to obtain consent for taking on their relative/spouse/friend/ward as a patient and to provide whatever medical services, treatments and referrals that are needed and considered best practice by the RACGP college and compliant with all legislation. Due to the very real occurrences of disturbed behaviour in this group of patients, the most important part of the initial consent to treat by an EPOA or substitute decision maker, covers an in-depth discussion on the management of altered and deranged behaviour that may require physical and chemical restraints being necessary. It is only ever appropriate to use such means of subduing a patient if the patient is a danger to themselves or others. Having a discussion about all the various options of treatment in these cases including forced physical restraining and injectable sedative and tranquilizer agents and when they are considered is usually covered by me by saying “we only ever use needles on patients for vaccinations like the tetanus needle and pneumonia vaccination, but also some medications like insulin and some blood thinners. We usually do blood test routinely every 6 months or if there is a medical problem needing serial blood test which is also a small needle but not really very bad. Usually if the patient needs hospitalization this will involve serial blood tests and intravenous catheters and sometimes even more invasive and painful procedures. If we have to use a needle to sedate a patient it will only be after there has been a failed de-escalation by the nursing staff and if there was a risk to either the patient themselves or anybody else. I am available on my phone usually all working hours and most afterhours, so the home can usually reach me at any time for either advice or to request an urgent review of any patient. The reason we need your consent now is to ensure that no treatment is delayed due to not having consent for such. Without consent it would be impossible for me to continue to manage your relative as that would be illegal. ”
18) Because these aberrations in behaviour usually happen at inconvenient times, it is prudent and common practice to get ongoing consent from the EPOA to manage any condition or eventuality according to best practice and in the best interests of the patient. This has been the ongoing and established practice with each patient that I vaccinated at Japara Gympie Views on 08.04.2021.
19) Communication received from one of the EPOA’s in response to a request for a supporting email to be forwarded to AHPRA, strongly supports the contention that the reporting was secondary to malicious intent from Japara staff and that Japara staff misrepresented information and lied to the OMO Office and by proxy to AHPRA. The staff members are registered nurses in executive positions in Japara.
20) I hereby request a meeting with one or more of Calvary/Japara Board Members, preferably a doctor, to discuss this matter further.
21) I have recently turned down the care of a new patient at the Japara Gympie RACF due to the above issues and to mitigate against risk. There is a patient John Hall soon to be admitted to Japara Gympie from another RACF- he is well know to me, and his wife has asked that I see him at the Japara Gympie facility. This matter needs to be addressed as a matter of urgency. I have 10 patients at the facility. If this matter is not resolved, please be advised that I will be forced to withdraw my services to the institution and report the matter further.”
[1] https://www.nhs.uk/conditions/consent-to-treatment/
It took me almost a year to serve that concerns notice. It its anything like the first one, I have a decade or more of battles ahead. This time there are 9 patients involved. It would cost an absolute fortune to fight this is court. Every solicitor and barrister would have to read all of the records, and so would any expert witnesses. The fact that there are 9 patients involved multiplies the cost of an envisaged matter enormously. Even the RACF’s insurers will balk at the immediate costs of a discussion following my concerns notice let alone a protracted legal issue,
Having a potential claim against a large insured defendant is always beneficial when you have an Auditor trustee and Law Firm having a potential windfall. Again one for the lessons in bankruptcy for doctors.
My Current Positions
GP Gympie
Emergency Medicine Consultant Bundaberg ED
Consultant M-Powered Medical Monitoring
Advocate South Africa
Medicolegal Advisor Global
Director Diamond Lakes Mine
Director Bloodless Diamonds Africa
www.navinnaidoo.com