Understanding decision making -
Investigating complaints
Tony Kofkin
Director of Investigations
Health Care Complaints Commission
Dr Walid Jammal
Medical Practitioner, GP Expert, Medical Advisor(Avant)
Investigating complaints
The Commission must investigate complaints that:

Raise significant issues of public health or safety or
significant questions as to the appropriate care or
treatment of a client by a health service provider.

If substantiated would provide grounds for disciplinary
action against a health practitioner

Appears to be a breach of the Code of Conduct for
unregistered health practitioners that is considered
a risk to the health or safety of the public
Who was referred for
investigation 2013-14?
Investigating complaints
During an investigation evidence is gathered
from a variety of sources that may prove or
disprove the allegations raised in a complaint

Commission has powers to compel information.

External expert’s advice is crucial in determining
whether or not to take disciplinary action.
Investigating complaints
Before finalising an investigation,

Commission presents its findings to the relevant
provider and invites their submission

If the provider is a registered practitioner, the
Commission consults with the relevant professional
council
-> All parties are informed about the outcome of the
investigation
Outcomes of investigations
Outcomes of investigations 2013-14
Role of an expert during
investigation
 Experts are recruited through Colleges and Associations and are
provided with regular training by the Commission
 Experts are matched as closely as possible to the provider who
is subject of the investigation
 Expert is provided with all relevant material and asked to provide
their expert opinion
 When evaluating the evidence, expert refers to what would be a
reasonable standard for practitioners in the same profession with
an equivalent level of training or experience
 There may be different versions of events- it is NOT the expert’s
role to judge the credibility of these versions – different opinions
may be needed for different versions
Role of an expert during
investigation
Expert, based on the facts presented to them,
formulates an opinion by :
 Defining where the reasonable standard of care lies – not
“the gold standard” and not “best practice”
 Deciding whether the practitioner departed from the standard
expected from someone of equivalent level of training or
experience
 Deciding whether the departure from the standard was
significant
 Deciding whether this departure would invite strong criticism
from the profession
Role of an expert during
investigation
 Expert needs to clearly define the reasons for the
opinion, citing reference material and/or experience
 Expert needs to be careful about hindsight bias;
outcome bias; retrospective micromatching
 Distinguish between standard of the records vs standard
of care
 An expert must remain in their level of expertise
Case 1 – Alternative medicine
The complaint
Dr G was a doctor who practised “alternative medicine”. He
believed in the value of manipulation of the spine in order to
correct problems of blood flow to the brain. He developed a
philosophy that most illness can be cured by manipulation of
the cervical spine. For example, a child with pneumonia; a
person with inflamed conjunctiva; a child with autism; a person
with tonsillitis.
-> Doctor was assessed by Medical Council and suspended,
complaint referred to Commission to investigate
Case 1 – Alternative medicine
How the expert adviser approached the case
• the standard of care was clearly defined
• the manipulation embarked upon was in no way indicated; no
evidence at all
• not expected from a GP; no peer would ever agree.
-> significant departure from accepted standards
• Given the multitude of patients, and the strict adherence by Dr
G to such a philosophy
-> strong criticism
Case 1 – Alternative medicine
Decision
 The investigation was referred to the Commission’s Director of
Proceedings to consider prosecution before a Tribunal or
Professional Standards Committee
 Ultimately, Dr G was de-registered by Tribunal for a minimum
period of three years
Case 2 – phone consultations
The complaint
Dr S was engaged to undertake phone consultations for a
sexual health clinic. Dr S prescribed medications which were
off label, which were then purchased from the same company
that engaged Dr S.
The Commission alleged that Dr S failed to:
 physically examine the patient before recommending a
treatment program that lasted for about 18 months at a cost
of almost $4,000
 discuss alternative treatment options
 keep appropriate medical records of the consultation.
Case 2 – Phone Consultations
The main issues for the expert to consider were:
• Whether selling of these medications presented a conflict of
interest
• Off label use of medication
• Informed consent issue. Whether any other choices of
treatment were discussed
• Whether conducting phone consults with new patients is
sufficient and reasonable
• Adequacy of medical records
-> Expert found significant departure in relation to most of the
above points and was strongly critical.
Case 2 – Phone Consultations
Decision
• Investigation was referred to the Director of Proceedings who
determined to prosecute before a Professional Standards
Committee
• Committee found most of complaint proven (except lack of follow
up recommendation) and reprimanded the practitioner
Summary – Decision making
when investigating complaints
 There is a legislated threshold for the Commission to
investigate a complaint (section 23 HCCA 1993)
 Commission has extensive powers to obtain information
 Commission commonly tasks experts to evaluate relevant
evidence
 Provider always has the opportunity to make a submission
 Where required, the Commission consults wit the relevant
professional Council