Case against regulator for publishing “defamatory” condition

May 24, 2018

A health practitioner’s unsuccessful defamation claim against the regulator for publishing a condition he described as “provocative and insensitive,” gives doctors an insight into what constitutes defamation.

The case, which involved AHPRA and the Pharmacy Board of Australia, is a noteworthy example of the difficulty of succeeding in a defamation case, particularly against a regulator, where it is in the public interest to publish information. 

Provocative and insensitive

In an earlier court proceeding, a pharmacist was found to have failed to keep an up-to-date register for the prescribing of Schedule 8 drugs (Oxynorm capsules and Durogesic patches) and failed to have kept such drugs secure after the Department of Health audited his premises.

Consequently, the department revoked his authority to manufacture, possess, sell or supply Schedule 8 medications.  The Board imposed conditions on his registration including that he was “prohibited from taking or self-administering Schedule 8 drugs, save for those that may be legally prescribed for him”.

The conditions were recorded in the national register and published on AHPRA’s website.

The pharmacist raised concerns about this condition in a letter to AHPRA stating it was “provocative and insensitive” and a “defamatory and callous characterisation of [his] personality” as it suggested he self-administered Schedule 8 drugs, which was not a claim raised in the audit or earlier proceedings.

Soon after, he pursued legal action in the Federal Court claiming (among other things) defamation against AHPRA and the Board, and seeking damages for loss of reputation and future earnings from not being able to conduct a pharmacy business or obtain employment. 

The court’s ruling

The pharmacist alleged that the condition implied he had a propensity to, or had, self-administered Schedule 8 drugs without a prescription. Additionally, the condition suggested he had an addiction to such drugs or was “unfit” to be able to dispense such drugs for these reasons. AHPRA and the Board accepted that the pharmacist had never self-administered or in any way abused Schedule 8 drugs.

The judge noted the majority of pharmacists don’t have conditions associated with their registrations and found that the ‘ordinary reasonable reader’ would infer from the condition that the pharmacist had engaged in the conduct implied by the wording of the condition. The court agreed these inferences would potentially lead to members of the public holding him in lower esteem, so the condition was therefore defamatory.

Protections for professional bodies

Although the judge concluded that the condition was defamatory, AHPRA and the Pharmacy Board of Australia were able to rely on defences under the law to avoid liability.

The Board was able to prove the defence of absolute privilege applied. This defence protects against defamation when statements are made in the course of judicial and quasi-judicial proceedings, or in published documents incidental to proceedings. The defence was successful in this case as the Board  published the condition in the course of disciplinary proceedings.

AHPRA and the Board were able to rely on another defence under the state’s Defamation Act that the condition was published in a public document (the national register). The defence protects the public interest in the provision of information and can only be defeated if it can be shown that the information was not published honestly for the information of the public or advancement of education. The judge found the pharmacist had failed to demonstrate this was in fact the case, and dismissed the proceedings.

Defamation

The law in this area is complex. If you are concerned about potentially defamatory statements made about you, it is advisable to obtain prompt advice from a defamation lawyer as time limits apply to bringing a defamation action.

A word of warning: successful defamation actions are rare. In our experience, defamation suits are costly and attract significant media attention. This can result in the defamatory comments being republished, potentially damaging the doctor’s reputation further and exacerbating the significant impact that legal proceedings can have on parties.

Key takeaways


  • Defamation is the publication of material that causes harm to a person’s reputation. Publication includes writing, posts on social media, in speech or even photography.
  • Defamation actions can be difficult to prove and costly.
  • Professional bodies such as AHPRA are protected from defamation claims in certain circumstances under the law to allow them to execute their functions.

If you have been defamed by your patient or anyone who is not a healthcare professional, Avant can help you pursue a case of defamation against them. Under Avant’s Practitioner Indemnity Insurance Policy,* members are covered for up to $150,000 for legal costs to pursue the matter, subject to a $20,000 deductible.

Your policy* also covers you in defending against complaints made to, or by, the regulator.

If you believe you have been the subject of a defamatory statement in the course of providing healthcare and are considering legal action, you can email us at nca@avant.org.au or call our Medico-legal Advisory Service (MLAS) on 1800 128 268 for expert advice, 24/7 in emergencies.

*IMPORTANT: Professional indemnity insurance products are issued by Avant Insurance Limited, ABN 82 003 707 471, AFSL 238 765. The information provided here is general advice only. You should consider the appropriateness of the advice having regard to your own objectives, financial situation and needs before deciding to purchase or continuing to hold a policy with us. For full details including the terms, conditions and exclusions that apply, please read and consider the policy wording and PDS, which is available at www.avant.org.au or by contacting us on 1800 128 268.

 

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