A case study in unfair treatment

He was the golden boy of the Australian alternative medicine industry, a brilliant doctor with an internationally best-selling health book, his own radio show and a booming practice with a nine-month waiting list. He attracted patients from across the country, as well as from the US, Britain and Asia. He appeared regularly on TV and in newspapers and magazines, spreading his word. Then a seriously mentally ill woman walked into John Harrison's Sydney surgery and, within a year, had completely destroyed his life. Although she'd previously accused three psychiatrists of having raped her, had threatened to burn down another practitioner's rooms and had been stalking Harrison's family, a complaint by her started a process that ended in him being struck off the medical register for life.

His glittering career was over, his stressed wife miscarried the child they were expecting, they lost their home and many of their friends, and he was made bankrupt after being sued in the Supreme Court of NSW for damages.

But today serious doubts are surfacing about the validity of his conviction and, as a result, the spotlight is turning increasingly fiercely on the efficacy of healthcare complaints processes nationwide, particularly in the light of Jayant Patel's reign at Bundaberg Hospital, during which he was linked to more than 80 deaths.

Yet it's in NSW that the chorus of dissatisfaction with the system is the loudest. After three inquiries, the bungled investigation into 19 deaths at Camden and Campbelltown hospitals, and representations to politicians over Harrison's case, the NSW Health Care Complaints Commission and the NSW Medical Tribunal are being widely condemned. "It's a star chamber, set up for politicians to avoid their responsibilities," rages Michael Gliksman of the Australian Medical Association's medical practice committee. "It reminds one of the Salem witch trials."

Says Brad Frankum, director of medicine at Macarthur and conjoint associate professor at the University of NSW: "It is difficult to trust [the HCCC] to perform a fair, thorough and reasonable investigation of any doctors."

While everyone agrees it is important to have a strong complaints process to protect patients against bad doctors, the problems with the NSW system are that it - alone among the states - follows a prosecutorial agenda against doctors. Everywhere else in Australia, there are varying levels of attempts to adjudicate and mediate between a doctor and a complainant before it is taken any further. The NSW system is historically a hangover from the Chelmsford deep-sleep scandal linked to 231 deaths 25 years ago, with politicians determined to establish a system that could prevent such evil happening again. As a result, the HCCC investigates complaints, appoints the peer reviewers and expert witnesses, then prosecutes them in the Medical Tribunal where, startlingly, there are no rules of evidence and doctors are required to prove their innocence rather than have a plaintiff prove their guilt. And in a surgery where there's only one doctor and one patient in the room, making it one person's word against the other's, that's almost impossible.

"They investigate, they prosecute and they appoint people as part of the judging panel," says Ann Daniel, the former head of the school of sociology at the University of NSW. "In terms of legal justice it's quite a bastard of a system."

Gliksman agrees. "Doctors are guilty unless they can prove their innocence, which is very difficult to do in a system where there's bias in the investigation and there's no procedural fairness in that there are no rules of evidence. With hearsay admitted as evidence, they can accept the meanderings of a clairvoyant or pick over chicken entrails if they want. There can also be selective gathering of documents, selective presentation of documents and biased selection of peer reviewers. The bias is demonstrable."

Harrison's case is, sadly, perhaps the perfect example. The female patient complaining against him was described by her psychiatrist at the tribunal as suffering borderline personality disorder, a serious psychiatric condition that in men can produce psychopaths. As her evidence constantly shifted, the psychiatrist was asked if sufferers from her condition could be considered reliable. "They are reliable about the unreliability," came the response. None of the many well-documented threats made against Harrison, including letters and taped phone calls in which she'd said she was going to get him and wanted "to hurt you in a big way" were admitted as evidence. Harrison hadn't believed she would be taken seriously, but her case was bolstered by the complaints of two other women, one of whom he had not seen for eight years and the other he had not seen for five years.

Both had even been back to him for treatment after the incidents they were alleging had happened. One woman's evidence was dismissed as she confessed she had made sexual overtures towards the doctor, which he had rebuffed; the complaint of the other woman was upheld. In the tightly controlled hearing, there was little room to explore the curious way the two women had suddenly come forward from the past to complain about Harrison shortly after the first complaint was lodged. Those two women have since admitted, however, that they were persuaded to complain by the sick woman and her helper at the HCCC. Both say they would never have complained otherwise. They supported the original complaint after they were contacted and told that Harrison had molested a number of women and it was their public duty to speak out against him on those women's behalf. The HCCC later confirmed that there never were any other women. "For some reason I think I was told there were 17 people who'd made a complaint about him, which was a lot," says one of the women. "I think I was too tranced out, spaced out, to even know what I was doing."

And the other one tells a remarkably similar story. "I talked to X on the phone and she said there'd be about 16 people, but no one has come forward and we need them to come forward so that something can be done about [Harrison]," she says. "That's when I got into my, 'Oh my god, this man is harming people, I can't let this happen', so I got into my, 'let's save the world' mode. That's how I got suckered into it [complaining]." She admits to having a two-hour telephone conversation with the first woman before agreeing to complain. She now says she bitterly regrets it.

Many experts say the only way such a system is allowed to continue is because most people would never believe it exists. "Such a dysfunctional system serves neither the doctors nor protects the public, but I think politically it's protected by the fact that people don't believe such a thing would ever exist in Australia today," Gliksman says. "Such a system makes it inevitable that innocent people will be found guilty." Judge Patricia Staunton has also said in the past: "They trample all the principles of natural justice and procedural fairness."

Of course, while no one can say with absolute certainty that Harrison is innocent, since none of us can know what happened in his surgery, no one is well-served by a system that can't properly distinguish between good and bad doctors and, indeed, between good and bad patients. And when Australia is facing a looming shortage of doctors, and studies have found 30 per cent to 40 per cent of doctors say they wouldn't choose the profession if they had their time again because of worries over complaints, everyone agrees it's important to have the best - and most demonstrably fair - complaints investigation and resolution system possible.

Psychiatrist Yolande Lucire, a high-profile and long-time critic of the system, is adamant it needs to be changed. "My colleagues who have had experience of the complaints process at any level would attest that it is indeed the case that an accused doctor has less legal protection than a recidivist criminal," she says.

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