Medical Board’s draft code lacks clarity and is too prescriptive

12 September 2018 | Avant media

The Medical Board’s consultation on its draft revised guidelines Code of Conduct: Good medical practice – A code of conduct for doctors in Australia (the draft code), concluded last month. The draft code will replace the current Good medical practice: A code of conduct for doctors in Australia dated March 2014. 

While codes are an important tool for setting standards about acceptable conduct, we believe there are many problematic aspects of the draft code. In our submission to the consultation we highlighted these and called upon the Board to address them in the final version of the code.   

Many clauses in the draft code are too wordy and confusing, and it is not clear how they would work in practice. It is as if the draft code seeks to deal with every possible interaction between a doctor and a patient and set guidance about how this is to occur. We believe that the increased length of the code (from 22 to 31 pages) will discourage doctors from referring to it. Doctors are already burdened with excessive regulation and bureaucracy and the draft code does nothing to alleviate this, but appears to add to it.

Of particular concern to us are the following sections of the code.

The provisions on culturally safe and respectful practice which are intended to assist doctors in caring for patients from diverse backgrounds, risk leaving doctors unsure about whether they should challenge cultural practices where they conflict with good medical practice. Doctors should not feel constrained from recommending appropriate treatment to patients from culturally diverse backgrounds.

The section of the draft code on professionalism potentially limits doctors’ speech and may impact on the ability of doctors to comment on issues they believe are important. The proposed revised code requires a doctor who states a view which differs from the profession’s “generally accepted views” to make an acknowledgement of the profession’s view or risk disciplinary action. Determining the profession’s generally accepted view on an issue may be difficult. In addition, the clause as currently drafted does not distinguish between clinical, personal or professional issues. Doctors should be free to express their views without the threat of regulatory action by the Board.

We believe that the parts of the draft code which seek to address discrimination, bullying and sexual harassment in the profession also require review. It is important that the code is clear that discrimination, bullying and harassment are unacceptable, but the obligations imposed on individual doctors within this section exceed existing obligations under current workplace laws.

Additionally, responsibilities on employers and employees for bullying, discrimination and sexual harassment in the workplace are set out in a range of state, territory and federal laws and employer policy. This is a complicated area of the law and disputes are usually adjudicated in specialist tribunals such as the Fair Work Commission or other discrimination tribunals. It is not clear how the code will articulate with other forums that deal with bullying, discrimination and sexual harassment.

We believe that more work is needed by the Board to address these issues in the final version of the code. We are hopeful that the revised code will be a useful guide for practitioners to good medical practice not a hindrance.

More information

Read Avant’s submission to the Medical Board dated 16 August 2018.

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