Articles and Case Studies

When a Campaign of Complaints Becomes an Abuse of Process

04 Apr 2017

Doctor dejected at the information that he is being handed

At a time when changes to the Code of Conduct for Doctors are being considered by the Medical Board of Australia and AHPRA in an effort to curb vexatious complaints,a recent Victorian case illustrates how courts and tribunals address this issue.

The case

In Sheehan v Kitson,2 the Victorian Civil and Administrative Tribunal heard separate applications by four doctors, each seeking an extended litigation restraint order against the same respondent, Mr Kitson. What was remarkable about each application was the manner in which Mr Kitson pursued each of the doctors over a number of years regarding his health information.

Three of the four doctors had come into contact with Mr Kitson several years earlier when they had been commissioned as experts to provide medico-legal reports in civil proceedings commenced by Mr Kitson. Despite the case having settled at mediation, Mr Kitson engaged in a relentless campaign of barraging each expert with letters demanding they identify those documents taken from his medical records that substantiated their diagnosis of him.

A fourth doctor who had treated Mr Kitson in the past received similar requests. When each of the doctors failed to comply with his stringent demands, Mr Kitson filed a complaint against them with the Health Services Commissioner, alleging they had misused his health information contrary to one or more of the 11 health privacy principles enshrined in the Health Records Act 2001 (Vic). In all, the Commissioner received, and ultimately rejected, over 30 separate complaints from Mr Kitson regarding one or other of the four doctors, each complaint appearing to arise out of the same or very similar facts.

Taking his case to the Tribunal

Not surprisingly, Mr Kitson’s unstinting belief in the merits of his cause did not end when the Commissioner declined to entertain his complaints on the basis that they were misconceived. Using the mechanism available to complainants who remain dissatisfied with the Commissioner’s determination, Mr Kitson compelled the Commissioner to refer the unmeritorious complaints to the Tribunal.

Before the Tribunal, the four doctors concerned obtained leave to bring separate applications against Mr Kitson pursuant to the Vexatious Proceedings Act 2014 (Vic).

In considering the merits of each application, the Tribunal had regard to Mr Kitson’s persistence in issuing a number of almost identical proceedings against each of the doctors that were doomed to failure and amounted to an abuse of process of the Tribunal. It was also noted that the proceedings were conducted in a way so as to harass or annoy the doctors.

Results and discussion

Having satisfied itself that the public interest of maintaining an efficient and effective justice system outweighed Mr Kitson’s right of access to the courts, the Tribunal ordered that Mr Kitson be placed under an extended restraint order in relation to each  of the four doctors and in relation to the issue of proceedings under the Health Records Act 2001. The order remains in force indefinitely.

This case shows how even a complaint that is misconceived or groundless can still cause headache and heartache for the doctors against whom the allegations are made. Most Australian states and territories have similar legislation to Victoria, empowering courts and tribunals to restrain vexatious litigants.

Contact MDA National’s Claims and Advisory Services on 1800 011 255 for advice and support in relation to complaints.

References

  1. See the Statement of the Medical Board of Australia and AHPRA following the release of the Senate Communities Affairs References Committee inquiry into the medical complaints process in Australia report at ahpra.gov.au/News/2016-12-01-medical- complaints-process.aspx
  2. Sheehan v Kitson (Human Rights) [2016] VCAT 1964.
Complaints and Adverse Events, Anaesthesia, Dermatology, Emergency Medicine, General Practice, Intensive Care Medicine, Obstetrics and Gynaecology, Ophthalmology, Pathology, Psychiatry, Radiology, Sports Medicine, Surgery, Physician, Geriatric Medicine, Cardiology, Plastic And Reconstructive Surgery, Radiation Oncology, Paediatrics, Independent Medical Assessor - IME
 

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