6 min read

Bad faith peer review in medicine

By: Dr Niro Sivathasan on Jan 21, 2025 4:38:26 PM

AHPRA

The hidden threat that impacts everyone

Peer review has been employed for the last century or so, as the process for quality assurance in professional endeavours.

In essence, it is the determination of professional competence by a committee of local peers.

It is a cornerstone of professional standards in healthcare, particularly medicine, and when correctly implemented, it balances the ethical evolution of healthcare practices (by way of innovative thinking for improvement of standards) with patient safety – the most fundamental tenet in healthcare. In its purest form, healthcare peer review should be a constructive process to evaluate and guide the performance of healthcare practitioners (HCPs). It is analogous in intent to air crash investigations utilising impartial aviation experts, usually senior pilots, to appraise situations from near-misses to major accidents, in order to minimise the risk of repetition.

Damningly, in healthcare, the process has been weaponised by competitors, health boards, health insurers, hospitals, and law firms which specialise in ‘med[ical] neg[ligence]’, into a malevolent iteration widely known as sham peer review –
although arguably better referred to as malicious peer review or bad faith peer review (BFPR), due to the more apt legal implications. BFPR constitutes a transgression against patients, HCPs, and the integrity of healthcare itself, and it may be done for personal or political gain.

The motivations for BFPR whilst virtue-signalling under the guise of protecting patients, are varied but often revolve
around:

Professional jealousy: colleagues may feel threatened by their peers’ successes especially when pecuniary, and may vexatiously initiate BFPR to eliminate financial competition. This is commonly seen where a regulator pays heed to anonymously submitted complaints even in the absence of accompanying evidence.

Retaliation against whistle-blowers: HCPs who expose unethical or unsafe practices within their institutions may face BFPR as a form of retribution.

Administrative convenience: hospital administrators may use BFPR to remove particularly doctors who challenge policies, who do not parrot as they are instructed to by managers and ‘bean counters’ focused on targets, and who resist undue pressures to apply blanket institutional policies preferring, instead, to provide patient-centred care by using logic and expertise, just as consummate professionals ‘must’ do.

Too often, the outcome successfully stifles healthy competition, and dissuades critical thinking and free-thinking, by way of prejudicial processes predicated on the lack of accountability of, and consequence to, the peer(s) providing the malicious review. The tactics frequently employed to discredit and/or silence ‘disruptors’ are characterised by bias, lack of evidence directly related to professional competence, and a lack of natural justice, as follows:

Selective case-review(s) by biased committees and reports which do not reflect reality: the cherry-picking of cases that portray a medical doctor in a negative light despite their broader record of competence, along with adversely massaged reports which sometimes contain abject falsehoods.
Lack of transparency and relevance: including withholding of evidence and internal communications, conflicts-of- interest with reviewers (who have a predisposition to rule against the targeted medical doctor), and the conducting of ‘loaded’ reviews in secrecy.
Violation of due process: which, quite simply, pertains to the denial of a fair opportunity for a medical doctor to
provide an adequate response themselves, present counter-evidence, or publicly cross-examine witnesses.

In my former role as vice president of a health reform group, and in my current roles as a state secretary for AMPS (Australian Medical Professionals’ Society) and medical counsel to leading law firms; I have seen the most egregious violations of fairness and natural justice applied to HCPs, whether medical practitioners (i.e., doctors) or paramedical practitioners (dentists, nurses, and so on), who are subjected to predetermined outcomes in process-manipulating ‘kangaroo courts’. A friend who is a senior physician was the victim of such in a system which simply did not like his opinionated nature, and he was left with the stark choice of either accepting the gradual erosion of his dignity and well-being, or publicly exposing and confronting the issue for what it truly is. He did the latter, and demonstrated the allegations to be unfounded and exposed the administrative hurdles, but this came at great financial and emotional costs
to him.

The consequences of BFPR for targeted HCPs may be devastating and long-lasting, and involve the intermingled domains of erosion of professional reputation, adverse impact on employment, economic hardship (both directly and indirectly, e.g., loans), damage to personal relationships, and emotional distress – all of which may lead to professional disillusionment, depression, and suicide. These are areas where Australia, very regrettably, seems to be one of the world’s leaders. However, it is important to remember that facilitating this situation are ‘guns for hire’ who engage in dishonesty to pervert the truth, and in so doing, also facilitate the exponentially flourishing business of medical litigation, regardless of validity. Unfortunately, New South Wales followed by Queensland are at the top of the charts for malpractice
litigation per capita, exceeding California and New York, and partly fuelled by skyrocketing numbers of newly minted lawyers who proceed down the ‘no win, no fee’ path with impecunious clients who are also wanting to make a fast buck.
Interestingly, even established large law firms forego their due to the courts and happily partake in such.

The solutions to combat intentionally bad-faith actions disguised as wholesome, are relatively simple: systemic transparency (for consistent application of standards) and direct accountability (where reviewers must demonstrate clear understanding of the rules of evidence and where mechanisms exist to address suspected biases to prevent conflicts-of-interest, particularly where any reviewer has fiduciary ties or secondary gains – with meaningful repercussions in such circumstances). This should involve:

Clear policies, and training: institutions should have well-defined policies outlining the requirement for evidence-
based peer review, along with training to help prevent abuses.
Independent oversight: external and wholly separate oversight bodies may help to ensure fairness and impartiality, particularly in contentious cases.
Legal Protections: as evidenced by America’s Health Care Quality Improvement Act (HCQIA) of 1986, which was intended to grant immunity for good faith peer reviews; the law has been misused by hospitals to target and silence whistle-blowers and HCPs. Reviewers and so-called investigators who may have questionable motives frequently evade scrutiny in a system designed to safeguard patients and protect colleagues from practitioners who are dangerous or unethical. Therefore, there must be legal protections but also ramifications meted by the judiciary in
cases of BFPR.

The question therefore remains if there is a lack of resolve by regulatory bodies to coherently address these recognised shocking failures.

This wholly unethical manipulation of the peer-review mechanism is a pernicious practice which damages lives and endangers the integrity of medical practice; but, why should everybody know about BFPR? Very simply because the utilisation of BFPR increases costs for all stakeholders – which all of us, at some point in our lives, shall be as consumers of healthcare and/or as tax-payers. Put another way; the implications of BFPR stretch widely beyond the victimised HCP, and patients repeatedly lose, leading to the erosion of public confidence, by way of the following mechanisms:

The removal of conscientious HCPs, who usually are safe and competent, from the workforce reduces access and reduces healthy competition and increases prices.
The accompanying shockwaves discourage dissent amongst HCPs, and it fragments unity amongst HCPs and undermines the trust which is necessary for effective collaboration.
HCPs who remain may be terrified, and in order to prevent fallout affecting their families, they turn a blind eye to
bad things – precisely as we have witnessed during some of the shenanigans this decade.

We saw BFPR used extensively during the Covid period between 2020 and 2023, and it continues to notably be used for financial reasons in specialities such as cosmetic surgery, where ethically questionable doctors have infiltrated regulatory bodies for political subversion. However, BFPR is not merely an administrative failing, and all HCPs have a duty to raise their awareness on this topic and to stand in solidarity with their persecuted colleagues.

Much of healthcare operates as a precarious construct held together by vested interests which create an environment where meritocracy and objectivity often falter. As noted by Lewandowsky et al. (2012) and affirmed by Ng et al. (2016),
a particular predicament in Australia is the misinformation generated by authorities and their delegates, partly in cahoots with certain media outlets. Ng et al. further noted that ‘multiple current laws are already being breached in Australia by
sham peer reviews, including the federal competition laws and international human rights conventions, in addition to various state criminal codes and crimes acts’.

Despite all this, it is my emphatic view that any reasonable person would not stand by or, worse still, propagate processes that are intentionally opaque to distort accountability, particularly by governmental or government-authorised bodies.
Thus, without collective and urgent action, the very foundations of ‘genuine’ health care, which involves the protection of patients whilst simultaneously affording them choice, shall remain compromised. Australia must, therefore, implement
codified, systemic reforms, starting with a national professionalism code as elementary as it sounds, in order to offset the societal trend towards unethical deterioration. Restoring trust in the peer-review process is a moral imperative necessary for the health and sustainability of the medical profession.

Read the article on The Spectator here

6 min read

Bad faith peer review in medicine

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