DEFAMATION: What You Say Matters

By Rebecca Hyde, Workplace Compliance Advisor at ClinLegal. Rebecca holds a Bachelor of Laws and Legal Practice (Hons) and a Bachelor of Behavioural Science (Psychology).

In all healthcare practices, large or small, there will always be differences of opinion, occassional personality clashes and/or people who simply don’t get along. Under pressure, accusation, or disappointment it can be tempting to confide in others about this person. But be warned; making defamatory comments that put a colleague’s professional reputation into question can have far reaching implications. In this article we discuss the law, following the recent court decision of Lucire v Parmegiani & Anor.

Defamation, Professional Conduct and its Implications

Members of the healthcare profession have a duty to uphold professional standards and the reputation of the profession, and fellow colleagues. Making comments that put a colleague’s professional reputation into question may well breach your profression’s conduct rules, potentially lead to a nasty defamation claim, and ultimately lead to professional disqualification. Defamation occurs when a comment about someone is made to a third party – verbally or in writing – that damages that person and/or their professional reputation.

When to Speak?

If you experience difficulties with any colleague, ask yourself questions before proceeding. Is the problem about personality or work ethic issues? If so, might you be partly to blame? Consider approaching the colleague in private to endeavour to settle the problem. (When staff begin ‘ratting’ about someone, don’t get involved and make the story bigger! Most ‘in house’ ratting stops when others ignore it). If the issue is related to your colleague’s professional conduct, it may be necessary to consider whether the actions require further action, or even a mandatory report to the professional body.

When you MUST speak

Your responsibility is to promote and protect the health and well being of the general public. As such, all healthcare professionals are legally mandated to report situations where they have a reasonable knowledge/belief that another practitioner is putting the public at risk. For example, if a doctor or dentist is ignoring hygiene protocols or having a few shots of whisky before lunch, this type of behaviour would require mandatory notification to the appropriate health practitioner Board. The basic rule is that if there is factual evidence driving your need to speak to someone, it’s time to address the person concerned directly and/or officially report them. The appropriate person to do this in any practice is the Principal, or most senior member of staff.

When a mandatory report is required, healthcare practitioners must report. To support mandatory notification, you are protected in this instance from a nasty defamation claim through the defence of Qualified Privilege – but this privilege should not be abused! The recent case of Lucire v Parmegiani & Anor tells us that if a mandatory report is made with any suggestion of malicious intent or carelessnes in spreading incorrect information, the reporter may not be able to use the defence of Qualified Privilege to stop them being sued for defamation.

If a colleague makes a defamation claim against you…

The matter will be heard in a civil court, consideration will be made as to your comments, behaviour, impact on your colleague’s reputation, and the reasons for your comments/report. The court will also consider any possible defence you may have. Defences may include Qualified Privilege (you were mandated to report your colleague), or that the defmatory information is substantially or contextaully true (ie the information is based on factual evidence). If defamation has occurred, and no defence is applicable, you may be liable to pay damages to your colleague/s, or compensate for the damage caused to their reputations.

Considerations for Employers

Most workplace issues can be resolved through effective communication. Tackle the problem by discussing the issue/s with your colleagues, or mediating with a third party. This can be an effective and practical solution, as opposed to making comments to a third party. When an issue arises, consider the situation before speaking to anyone:

  • Identify the issue: Is it caused by personal differences? Competitiveness? This should be resolved between you. If this is not possible, consider mediation through an independent dispute resolution service provider.
  • Assess the issue: Can you resolve it? Is it serious enough to warrant notifying your professional health Board?

This Article is produced by ClinLegal. It is intended to provide general information and guidance in summary form on workplace compliance issues, current at the time of publication. The contents do not constitute legal advice and should not be relied upon as such. Formal legal advice should be sought in particular matters.

To learn more about ClinLegal’s legal, compliance and mediation services, simply contact us at info@clinlegal.com.au or visit www.clinlegal.com.au

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