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.
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”.
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
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
Protections for professional bodies
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
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
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
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.
- 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
- 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 firstname.lastname@example.org 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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