Note: Article originally published in the Australian Doctor. Anyone wanting to comment on this article can send an email to editor@adg.com.au
AHPRA has pledged to review its handling of a case where a GP was suspended after one of its investigators "edited" evidence relied on during his immediate action hearing before the Medical Board of Australia.
But the watchdog is backing the officer involved saying it was an 'isolated incident', that she had acted with the right intentions and that it stood by her integrity.
As reported by Australian Doctor, last week a Supreme Court judge overturned the emergency ban imposed on the doctor – known under the pseudonym Dr Shah – saying the evidence used against him had been unreliable.
He had originally been brought before the board early last year, shortly after his practice receptionist alleged he had broken into her house and groped her.
It later emerged that an edited version of the AHPRA investigator's file notes given to the board had excluded key information, including that a police officer had told her that the receptionist's "credibility as a victim is not reliable".
Also missing were comments from the receptionist's friend, again provided to the investigator by the police officer, alleging that the receptionist had a criminal history that included assaulting police (box see below for details).
In a statement to Australian Doctor, AHPRA stressed that its lawyers had told the tribunal of the edits before a tribunal subsequently upheld Dr Shah's emergency suspension.
It added: "We believe that the incident reported ... is an isolated one.
"We brought the issue to the attention of the South Australian tribunal who initially considered an appeal of the board's decision to suspend the medical practitioner.
"The tribunal made a decision to uphold the board's decision to suspend, notwithstanding the edits which had been made to the file note."
It added: "The decision to edit the file note was made with proper intentions to ensure factual material only was put before the board.
"This was made by an officer who was new to our organisation.
"We stand by our officer's integrity and have counselled the individual investigator in relation to the decision to edit a file note when preparing advice to the board.
"[We will] review other investigations undertaken by that officer where file notes have been used as a means of recording evidence."
It also said it would review guidance given to staff about the use of file notes and remind its officers of the "need to ensure material to be considered by a national board is complete"
Dr Shah's emergency suspension was thrown out by the South Australian Supreme Court in a 78-page ruling published last week.
Justice Malcolm Blue had said that the conduct by the AHPRA investigator in editing the file notes had demonstrated that her "evidence" of her discussions with external parties in the course of the investigation "could not be relied upon".
"She must have known that the board would rely on her file note in making a decision whether to take immediate action," he wrote.
"She should have known that the board would expect her to provide to it a balanced account of her conversation with [the investigating police officer] and not to edit out matters that weighed against the taking of immediate action or weighed in favour of Dr Shah."
In his ruling, Justice Blue also said the tribunal's decision that the GP still posed a risk to patients and staff was based on hearsay evidence in the AHPRA investigator's file notes resulting from her interview with a former practice manager.
The practice manager had described Dr Shah as an "awkward communicator" based on comments Dr Shah had allegedly made that had made staff uncomfortable.
This included comments that he was an eligible bachelor and that he had asked staff if they had boyfriends, the practice manager said.
The judge said that as a result of this information the tribunal decided he could not "read" people and was therefore incapable of knowing if patients were consenting to treatment or not.
But he said the tribunal had erred, referring to the fact that the practice manager had not witnessed the conversations she referred to.
"It is not even apparent from the [AHPRA investigator's] file note whether the person who informed [the former practice manager] of the conduct themselves was conveying hearsay statements by others," Justice Blue added.
"The 'evidence' by [the AHPRA investigator] was not first-hand evidence, and it may not even have been second-hand hearsay evidence."
The judge went on to rule that the tribunal failed to balance public interest considerations in suspending Dr Shah – including considerations of fairness, proportionality and public understanding of the difference between allegations and proven guilt.
It also failed to understand that immediate action should only be taken where necessary.
He noted that the tribunal had rejected Dr Shah's offer to work under a string of practice conditions, including ones that were designed to ensure oversight of his contact with female practice staff as well as gender-based restrictions in respect of his patients.
The GP still faces a formal tribunal hearing to determine if he has a case to answer in terms of the receptionist's allegations.
Before and after? The AHPRA investigator's file edits
In February 2021, shortly after the receptionist made the allegations to police about the GP, an AHPRA investigator spoke with the police officer who had interviewed a friend of the receptionist, called Brett, about what had happened.
On 18 February, the AHPRA investigator wrote up the following file note:
"Brett said that [the receptionist] has mental illness and "is not quite right in the head" but that she is legitimately petrified because she is worried about her job, so she is nice to him.
"Her concern was who was going to believe a mentally ill, low-income-earning woman with criminal history — drink driving and assault police (throwing toilet water in the cells at police when being detained previously under Mental Health Act).
According to the Supreme Court judge, all the words in bold, including references to the receptionist's alleged criminal history and mental health issues, were removed in the edited version of the note.
The edited version, which was sent to the medical board, read:
"Brett said that [the receptionist] has mental illness but that she is legitimately petrified because she is worried about her job, so she is nice to him. Her concern was who was going to believe a low-income-earning receptionist over a doctor. She was also worried about her employment."
Another of the investigator's original notes, also made on 18 February, read:
"[The police investigator] states that he is inclined to believe Brett. It didn't sound like he was just trying to back [the complainant] up.
"However, her credibility as a victim is not reliable, but he thinks he can charge [the GP] with indecent assault based on the corroboration by Brett and maybe Emma [another friend] ... when he can speak with her."
But again, the text was edited.
According to the Supreme Court, the words in bold relating to the receptionist's credibility were removed when the edited file note was handed to the medical board tasked with making the decision to suspend the GP.
The file note read instead:
"[The police investigator] states that he is inclined to believe Brett. It didn't sound like he was just trying to back [the complainant] up."
The Supreme Court judge said no explanation was given to the tribunal for the editing of the original in the version provided to the medical board or the tribunal.
He added: "That editing was a very serious matter that impacted directly on the reliability of [the AHPRA investigator's] evidence.
"She must have known that the board would rely on her file note in making a decision whether to take immediate action.
"She should have known that the board would expect her to provide to it a balanced account of her conversation with [the police detective] and not to edit out matters that weighed against the taking of immediate action or weighed in favour of Dr Shah."
"The [detective's] statements to [her], as outlined in the original 18 February 2021 file note, that the complainant's 'credibility as a victim is not reliable', that the complainant had been detained previously under the Mental Health Act 2009 (SA) and that the complainant had a criminal history, including assaulting police, were clearly matters that weighed in favour of the GP.
"The position is exacerbated by the fact that no explanation was proffered to the tribunal for the editing."