Problem doctors in disciplinary tribunals : who do protective orders protect? An analysis of Australian tribunal decisions from 2010 - 2013

Publication Type:
Thesis
Issue Date:
2016
Full metadata record
This thesis questions whether the approach to ‘problem’ doctors adopted by medical disciplinary tribunals in Australia undermines a key objective of the Health Practitioner Regulation National Law, namely, the protection of the public. The thesis analyses medical tribunal decisions in Australia from 1 July 2010 to 1 July 2013, with a particular focus on ‘impaired’ doctors. It argues that the concept of the protection of the public has been undermined by protective orders (also known as disciplinary sanctions), which focus on the rehabilitation of problem and impaired doctors in the management of risk, rather than more severe protective orders, such as suspension or deregistration. The tribunal decisions create a rich database for a nuanced examination of the way in which the culture of ‘the therapeutic state’ has permeated disciplinary decision-making in relation to protective orders, under both the old State and Territory laws and the current Health Practitioner Regulation National Law. This culture medicalises professional misconduct that may attract negative moral judgment, and redefines it in terms of illness, in particular, psychiatric illness. The thesis critically assesses how tribunals struggle to distinguish between misconduct as a function of illness or impairment, and other misconduct, and identifies the key role played by psychiatrists in this process. The findings indicate that the most common form of risk management in medical tribunals was the use of protective orders to impose conditions upon a doctor’s registration, such as supervision of a doctor’s practice, psychiatric treatment, drug testing or the use of a chaperone. It is argued that in view of the paucity of research on the rationale and utility of such protective orders, tribunals show too much trust in their effectiveness. The thesis concludes that the pendulum has swung too far towards the rehabilitation of doctors at the cost of protection of the public.
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