Medical internships – favouring local medical students discriminatory to overseas trained doctors

On 30 June 2016 the ACT Civil and Administrative Tribunal (ACAT) handed down its decision in Wang v Australian Capital Territory [2016] ACAT 71, finding that ACT Hospitals had discriminated against Mr Wang, an overseas trained doctor by following its Intern Policy which favoured local medical students to overseas trained doctors in allocating internship places. In this blog post I examine the reasoning of the tribunal and consider whether the decision will result in less internship places for local medicine students.

Facts

Mr Wang was a neurologist in China before moving to Australia and becoming an Australian citizen. He completed the Australian Medical Council examinations to have his Chinese medical qualification recognised and in 2013 applied for an internship position at Canberra Hospital to qualify for registration as a medical practitioner.

Since 2013 the number of medical graduates applying for internship positions has exceeded the number of internship positions available. To combat this, states and territories entered into a number of intergovernmental agreements on the availability of internships. ACT Hospitals adopted an Internship Policy that prioritised applicants into 8 categories:

1.       Guaranteed first round offer: ANU graduates who do not make applications elsewhere;

2.       Guaranteed first round offer (capped at 5): domestic graduates of NSW universities;

3.       First round offer not guaranteed: graduates of other Australian universities who completed Year 12 in the ACT;

4.       First round offer not guaranteed: ANU graduates not offered a category 1 placement;

5.       First round offer not guaranteed: graduates of other Australian universities;

6.       First round offer not guaranteed: graduates of Australian university campuses outside Australia accredited by the AMC;

7.       First round offer not guaranteed: graduates of New Zealand universities; and

8.       First round offer not guaranteed: international medical graduates.

Under this policy, overseas trained doctors such as Mr Wang, who was an experienced neurologist, would have no real possibility of obtaining an internship in the ACT. In 2013 Canberra Hospital received 463 applications for 96 internship and RMO positions. Seventy eight positions were offered to ANU medical school graduates and 18 positions were offered to domestic graduates. Mr Wang was in category 8 and did not receive an offer. Mr Wang was also unsuccessful for the RMO applications he made in other states and territories. To be registered as an Australian medical practitioner, Mr Wang was required to complete an internship of 47 weeks supervised practice. Unable to secure an internship in Australia, Mr Wang was unable to register as a medical practitioner.

Direct discrimination

A person will racially discriminate against another person if the person treats or proposes to treat the other person unfavourably because the other person has an attribute referred to in section 7 (Section 8(1)(a) of the ACT’s Discrimination Act 1991 (Discrimination Act)). “Race” is an attribute in s.7 and is defined as including ethnicity, national origin and nationality. The intention of ACT Hospital’s Intern Policy is to distinguish between people of Australian national origin and those who are not, a differentiation that exists in the policy despite the fact a person of non-Australian national origin may be an Australian citizen, as is the case for Mr Wang. The concept of “attribute” is extended by s.7(2) of the Discrimination Act to include ‘characteristics’ that people claiming to be the subject of the discrimination ‘generally have’ or ‘are generally presumed to have’. ‘Characteristic’ includes more than just the physical features of a people of national origin and extends to their education. The Intern Policy does not consider the merits of the university or the quality of the degree. For the Intern Policy to distinguish only on the national location of the university is a criteria that operates as a proxy for national origin. As the elements in s.8(1)(a) were satisfied, Senior Member Anforth found that direct racial discrimination had occurred.

Indirect discrimination

After finding that direct discrimination had occurred, Senior Member Anforth considered Mr Wang’s alternative argument, that indirect discrimination had occurred. For indirect discrimination to be established, the criteria in sections 8(1)(b), 8(2) and 8(3) of the Discrimination Act must be satisfied.

Section 8(1)(b) of the Discrimination Act provides a person discriminates indirectly against another person if “the person imposes or proposed to impose a condition or requirement that has, or is likely to have, the effect of disadvantaging people because they have an attribute referred to in section 7”. “Race” is an attribute in s.7. ACAT found that:

·         The relegation of overseas trained doctors to the last category of the Intern Policy amounts to the imposition of a condition on those doctors, including Dr Wang;

·         The relegation to the last category of the Intern Policy disadvantages those doctors, including Dr Wang;

·         For the reasons given above in relation to direct discrimination, to differentiate on the basis of the university from which the overseas trained doctor graduate is to differentiate on the basis of an “attribute” referred to in s.7 of the DA Act.

These factors are prima facie sufficient for a finding of indirect discrimination in the DA Act.

Section 8(2) provides that indirect discrimination will not have occurred where the condition or requirement is reasonable in all the circumstances (“reasonableness defence”). The onus is on the respondent to the discrimination claim to establish the condition was reasonable in all the circumstances. The primary motivation for the Intern Policy was to protect the viability of ANU Medical School by providing guarantees to students who enrol that they will obtain an internship position in the ACT on completion of their studies. ACAT accepted that the financial and academic standing of the ANU was a relevant consideration but needed to be weighed against the discriminatory nature of the Intern Policy itself.

Section 8(3) provides that in deciding whether a condition or requirement is reasonable in the circumstances, the matters to be taken into account include:

(a)     the nature and extent of the resultant disadvantage; and

(b)     the feasibility of overcoming or mitigating the disadvantage; and

(c)     whether the disadvantage is disproportionate to the result sought by the person who imposes or proposes to impose the condition or requirement.

Senior Member Anforth identified the main motivations for the policy as maintaining the financial and academic standing of ANU medical school and to comply with ACT hospital’s perception of COAG’s intention. However, notes from COAG and AHMAC meetings did not evidence an intention that overseas trained doctors should be excluded from practice to favour domestic graduates or that graduates from within a state or territory should be favoured over domestic graduates from other states or territories.

There were a number of factors weighing against these including the extremity of the consequences to Mr Wang, the prima facie undesirability of government policies that are intrinsically discriminatory on the basis of race, the fact that COAG minutes did not envisage an outcome that overseas trained doctors be excluded from eligibility to practice, the unfairness given it had been represented to Mr Wang that after he completed his AMC examinations he could be considered for an internship on his merits, and it is possible to have a merit based system to assess internship applicatns. The “reasonableness” defence was not made out, and indirect discrimination was found to have occurred.

What happened to Mr Wang?

ACAT ordered that ACT Hospitals reconsider Mr Wang’s application on its merits for the next round of internships. ACAT also ordered ACT hospitals make the decision:

·         Free from the assumption that ANU graduates would be superior in merit just by reason of the fact that they are recent ANU graduates;

·         Free from the assumption that the undergraduate clinical placements of ANY students is superior clinical experience to Mr Wang’s years of clinical experience, years spent working in aged care in Australia, and additional study undertaken in Australia.

While Mr Wang was awarded $40,000 in compensation, there is no guarantee Mr Wang will be successfully placed into an internship program in the ACT. However, given Mr Wang was a senior medical practitioner in China, he would presumably rank highly in merits against recent medical school graduates. 

Implications for medical interns around Australia

ACT Hospitals are required to rethink their Intern Policy and ensure allocation is based on merit.  When applicants are considered on merit, overseas trained doctors may be offered internships over domestic medical school graduates, with the effect being some domestic medical students may miss out. Other hospitals have similar policies to that used by ACT Hospitals in allocating places for interns.  While there is a chance these policies are also discriminatory and will have to be revised, this conclusion could vary due to the differences in anti-discrimination laws across Australia’s states and territories.   

Not all anti-discrimination legislation contains the extended definition of ‘attribute’ which was essential to ACAT’s decision, though the anti-discrimination legislation in Victoria and NSW does contain the extended definition:

·         Racial Discrimination Act 1975 (Cth) (RD Act)– s.9 does not contain an equivalent of the extended definition of attribute contained in s.7(2) of the ACT Discrimination Act.

·         Equal Opportunity Act 2010 (Vic) (EO Act)– contains an extended definition of attribute.

·         Anti-Discrimination Act 1977 (NSW) (AD Act) - contains an extended definition of attribute

Also note that the DA Act does not contain a “comparative test” for direct discrimination which is found in other but not all jurisdictions. Senior Member Anforth was of the view that Mr Wang’s case would have passed a comparative test regardless.

In regards to indirect discrimination arguments, the ‘reasonableness’ test appears in various forms in Commonwealth and state anti-discrimination laws:

·         RD Act – ‘reasonableness’ test in s.9(1A)(a) requires the action, requirement or condition first be shown to be ‘not reasonable’ before discriminatory conduct is shown to exist

·         EO Act – test for indirect discrimination contains a test framed in  terms of the actions, requirement or condition being ‘not reasonable’, with the person imposing the requirement bearing the onus of showing that it is ‘reasonable’.

·         AD Act – the act, requirement or condition must be shown to be unreasonable before indirect discrimination is found to exist.

An intern policy should permit a practical and not a merely theoretical chance of selection. In the ACT Hospitals’ Intern Policy the chance of an overseas trained doctor being selected for an internship was merely theoretical and remote. ACAT suggests that a policy that ranks universities based on the quality of the university and courses would be appropriate as well as the merit of the individual applicant. While changes may occur to internship selection practices in the ACT, it is likely other hospitals will wait until their policies are challenged before changing internship selection practices, especially given practice in most states and territories is to favour local applicants prior to considering merit.   

Personal use of work mobile phones – what are the limits? Applicant v NBN Co Limited [2015] FWC 7412

Do you have a work provided phone? Do you use this phone for personal phone calls? If your answers are yes and yes, this blog post is a must read. In Applicant v NBN Co Limited [2015] FWC 7412 (NBN Co Case) an NBN Co employee was dismissed after the employee accumulated $22,630 worth of personal international calls made to numbers in India and failed to co-operate effectively in paying this money back. The employee’s unfair dismissal application failed. Most work places permit “reasonable personal use” of work provided phones and mobile phones - however, policies differ, and you should check the relevant policies at your workplace which will usually indicate whether you can use your phone for personal use and the limits of that personal use.

A.      The NBN Co Case - Facts

An NBN Co employee used his work provided phone to make personal calls to his family in India, incurring international call costs of $22,630 in the period May to September 2004. Over a period of nine months, NBN Co attempted to come to an agreement with the employee about the repayment of the money, holding a number of meetings with the employee and his representative over this time. On 25 June 2015 after the employee continued to refuse to come to an agreement, NBN Co terminated his employment.

B.      Was the employee’s termination an unfair dismissal?

Section 385 of the Fair Work Act 2009 lists the criteria that must be established for an unfair dismissal:

(a)  the person has been dismissed; and

(b)  the dismissal was harsh, unjust or unreasonable; and

(c)  the dismissal was not consistent with the Small Business Fair Dismissal Code; and

(d)  the dismissal was not a case of genuine redundancy.

In considering whether the dismissal was “harsh, unjust or unreasonable”, the FWC must take into account the criteria in s.387:

(a)  whether there was a valid reason for the dismissal related to the person's capacity or conduct (including its effect on the safety and welfare of other employees); and

(b)  whether the person was notified of that reason; and

                (c)  whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person; and

                (d)  any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal; and

                (e)  if the dismissal related to unsatisfactory performance by the person--whether the person had been warned about that unsatisfactory performance before the dismissal; and

                (f)  the degree to which the size of the employer's enterprise would be likely to impact on the procedures followed in effecting the dismissal; and

                (g)  the degree to which the absence of dedicated human resource management specialists or expertise in the enterprise would be likely to impact on the procedures followed in effecting the dismissal; and

                (h)  any other matters that the FWC considers relevant.

 

NBN put forward two reasons which combined constituted a valid reason for dismissal:

1.       The employee’s excessive use of the phone in breach of policies; and

2.       The employee’s refusal to agree to a repayment plan.

Breach of policies

There were two relevant NBN Co policies:

1.       IT Equipment Policy

The IT Equipment Policy gave the employer the right to audit and review phone and data usage and if inappropriate use is identified the policy allows NBN to recover costs from the employee and commence disciplinary action including termination of employment. Accounts where the monthly call charge is greater than $75 are to be investigated under the policy. The employee was aware of this policy.

2.       Acceptable Use Guideline

The Guidelines permit reasonable personal use of mobile calling within Australia only.

The employee claimed he was not aware of the Acceptable Use Guideline at the relevant time, being the time he was making the personal international phone calls. While the employee was not provided with a copy of the Guideline at his induction:

·         there was nothing in the induction suggesting unlimited personal international calls was permitted; and

·         the IT Equipment Policy of which the employee was aware stated that use of work provided mobile phones will be monitored and if monthly call costs exceed $75, they will be investigated.

In these circumstances the employee should have taken steps to find out whether he could make personal international calls on the work provided phone and locate the relevant policy. The employee did not ask his manager about call costs or seek out the Guideline.

Deputy President Gooley also noted that NBN Co did not follow their own policies in monitoring phone usage. NBN Co did not review usage for all accounts where usage exceeded $75 as required by the IT Equipment Policy. The employee’s call usage was on average $8,000 - $12,000 per month, far beyond the $75 investigation threshold, yet it took months for the employer to review the account. Even when the issue was identified, the employee was not initially told the full extent of the money he owed. The employee was notified of about $7,500 worth of personal calls in September 2014, but it was not until later that a full investigation found $22,630 was owed and the employee was notified of this revised amount. Had the employee been aware of the matter sooner, he would have stopped making the personal international calls.

Refusal to agree to a repayment plan

Where a debt is owed to an employer and there is a legitimate basis for the debt to be disputed, the mere existence of the debt alone will not be a valid reason for dismissal. However, in this case, Deputy President Gooley held that there was no reasonable basis for the employee to dispute the debt, as the policies were incorporated into his employment contract and he had clearly breached the policies. It was unreasonable for him to refuse to enter into an agreement plan to repay the money, and this was a valid reason for dismissal.

The key to Deputy President Gooley’s decision was that NBN Co had managed the investigative procedure in accordance with procedural fairness, giving the employee several opportunities to come to an agreement for repayment.

NBN Co organised a number of meetings over a period of nine months to try and come to an agreement on a repayment plan. Over this time, the employee changed his stance several times, initially offering to repay the amount, repaying $7,500 and asking not to be required to repay the remainder, and finally retracting his offer to repay the amount. NBN Co sent a warning letter in February 2015 stating that the employee had breached NBN Co policies and that if the outstanding amount of $15,130 was not repaid, NBN Co would consider further disciplinary action including the likely termination of employment. On 11 June 2015, after a number of unsuccessful meetings between the employer and employee, NBN Co issued a show cause letter asking the employee to accept a proposed repayment plan of $200 per fortnight or for the employee to propose an alternative regular repayment, or NBN Co would consider further disciplinary action including termination of employment. A number of further meetings were held. On 25 June 2015 the employee and the employee’s representative attended a meeting where various proposals were discussed, by the employee would not move on his non-negotiable position that the final warning be revoked, and NBN Co terminated the employee’s employment. Section 387 directs attention to whether the applicant was given an opportunity to respond and was notified of reasons for dismissal. All of the steps NBN Co took in providing sufficient opportunities to come to an agreement were important in the refusal to come to a repayment plan being a valid reason for dismissal.

C.      Key points from the NBN Co Case

Employees

1.       You may have to take your own steps to access IT policies relevant to phone usage. Do not assume that you can use a work provided phone for personal use.

2.       One policy may direct your attention to another policy – make sure you seek out the second policy. In the NBN Co Case the employee was aware of the first policy which indicated there were restrictions on personal use of work provided mobile phones. The employee was aware of this first policy and should have sought out the second policy which described in more detail the boundaries of the personal use.

3.       If you are unsure about whether you can use your work phone for personal use or the extent to which you are permitted to use your phone for personal use, make sure you clarify your concerns with your manager prior to using your phone for personal use. In the NBN Co Case Deputy President Gooley stated “the Applicant should have made inquiries of his managers. Without express advice that a work provided phone can be used for both personal and local use and internal calls an employee cannot simply assume that such use is approved”.

Employers

1.       When providing mobile phones to employees, the employer should point out the relevant policies that apply and provide employees with access to these policies.

2.       It is important to ensure investigation and usage management practices in policies are complied with. In the NBN Co Case the IT Equipment Policy stated that phone usage will be investigated where call costs exceeded $75 per month. These investigations were not always conducted when the $75 trigger point was met.

3.       Successfully managing an employee who has potentially breached a policy by using their work provided phone for prohibited personal use may take months. An employee must be given an opportunity to respond to allegations and have a support person present at discussions relating to the dismissal. If there are reasonable alternatives to termination, these should be considered. 

4.       Ordinarily the fact an employee has a debt to the employer alone will not be sufficient to justify dismissal, especially where the employee has reasonable grounds to challenge the employee’s finding. Alternatives to dismissal may be available in these situations.

5.       Where an employee makes a formal grievance complaint about the investigative process, ensure the grievance complaint is considered and responded to prior to further action (such as termination of employment) is taken.

Academic dishonesty, fraud and the law – why Sydney Uni medical students who fabricated patients and reports should have received much more than a warning

Introduction

The latest academic dishonesty scandal involves over 70 third-year medical students from the University of Sydney (“University”) who fabricated patients and fabricated reports in the compulsory subject Integrated Population Medicine (“IPM”). The internal academic review process has resulted in these students merely receiving warnings and having to do a substituted assignment. In this post I show why there is a need to crack down on academic dishonesty, particularly for students who are entering professions such as law and medicine where extremely high standards of honesty and conduct are expected from the respective professional bodies.

Details of the academic dishonesty

The compulsory subject IPM requires students to follow a patient with a chronic health condition over a 12 month period, meeting with the patient at least 5 times over the year. The subject is designed to help students with their professional development and awareness of the effects of chronic health conditions.

The academic dishonesty of IPM students included:

1.       Misrepresenting number of meetings with patients  - fabricating additional meetings to meet the required number of meetings;

2.       Forging patient signatures;

3.       Fabricating patients; and

4.       Misrepresenting meetings and reporting on “meetings” and “interactions” with a client after the patient has died from their chronic illness. 

The academic dishonesty was widespread, with the Sydney Morning Herald reporting 70 students from a class of 200 were involved in the dishonesty. The students were in the third year of their postgraduate degrees and would not have been new to the concept of academic dishonesty.

Students are contractually required to abide by University policies

When a student signs their acceptance to a University course, the student is also agreeing to abide by University policies. The policies are incorporated into the coursework contract. Academic dishonesty is therefore dealt with internally in the first instance by the University, as the University is enforcing a contractual agreement that the student will abide by University policies while enrolled in their course. The relevant policy at the University of Sydney is the Academic Dishonesty and Plagiarism in Coursework Policy 2012 (“Policy”). Other universities have very similar policies.

Academic dishonesty is defined in clause 3.1.1 as: “seeking to obtain or obtaining academic advantage (including in the assessment or publication of work) by dishonest or unfair means or knowingly assisting another student to do so”. Fabricating the existence of patients and patient’s signatures clearly comes within this broad definition, as the policy gives examples of academic dishonesty in clause 3.1.2 including “fabrication of data”.

In addition to being aware of the Policy, students are required to submit a statement of compliance with every assignment which states that their work does not breach the policy (clause 4.4.1). Students who knowingly fabricated patients details not only engaged in academic misconduct but also made a false declaration when submitting their assignment.

Academic dishonesty decision making procedure

Step 1: Potential academic dishonesty is identified

Staff tried to contact a patient to thank them for involvement in the IPM program. They were informed the person was in fact dead. The University launched an audit of the IPM subject designed to ensure patients existed and were alive when the task was done. Widespread potential academic misconduct was identified.

Where widespread academic dishonesty is identified, students are often given the opportunity to come forward and declare their dishonesty. All students in the relevant medical cohort were asked to come forward if they believed they had made misrepresentations in their IPM assignment. At this point, if students came forward and were honest about their misconduct, they would be given a substituted assignment but final marks and academic progress would not be compromised. This gives students the chance to develop an understanding of the importance of dishonesty.

Step 2: Preliminary view of academic misconduct is made

Each Faculty has a “Nominated Academic” who makes a preliminary determination of the student’s conduct. If the Nominated Academic forms the view that the allegations if proven would constitute academic misconduct, the case is progressed with the student being notified and invited to interview (Policy clause 5.3.4).

Step 3: Students are informed of the allegations

A key concept of procedural fairness is that the person under investigation is given a fair opportunity to respond to the allegations. Procedural fairness is taken very seriously by universities. If a student appeals the decision and takes the University through the judicial system, procedural fairness will be examined and a sound decision could be overturn on a small procedural irregularity.

Procedural fairness is covered in clause 5.2.1 of the Policy and includes the standard principles of administrative law procedural fairness. Students must be:

·         Given detailed information about the allegations against them;

·         Given sufficient time to respond to the allegations;

·         Informed of their rights under the Policy and the investigation procedure;

·         Advised they can bring a support person to meetings;

·         Advised the decision will be made impartially and without bias; and

·         Advised the investigation process will happen in a timely manner.

Step 4: Student is invited to an interview

The student will be notified of their interview time and place, the people who will be present at the interview and that they can bring a support person (Policy, clause 5.3.4).

Step 5: Final determination is made on academic misconduct

After the interview, the Nominated Academic considers all material available including material provided by the student at the interview to make a determination on whether academic misconduct occurred.

There are four determinations available under clause 5.4.2 of the Policy:

1.       No impropriety;

2.       Negligent plagiarism;

3.       Dishonest plagiarism; and

4.       Some other form of academic misconduct.

If academic conduct is found to exist but it is not serious enough to constitute “student misconduct”:

·         The student will receive an official warning and advised of the consequences of any subsequent breaches;

·         The student will be referred to student services for relevant assistance; and

·         May be required to redo the assignment, resubmit another assignment OR receive a fail grade for the assignment or subject (Policy 5.8.3).

Step 6: Preliminary determination is made on student misconduct

If academic misconduct is found to exist, the Nominated Academic will make a preliminary determination on whether the facts also support a determination of student misconduct. Serious academic misconduct can constitute student misconduct. The Nominated Academic will consider:

·         the extent of the conduct when measured against the student’s original contribution to the work;

·         the capacity of the conduct adversely to affect the student’s peers and or teachers;

·         the capacity of the conduct adversely to impact on the actual or perceived academic standards of the University; and

·         whether the student has previously received a written warning.

Step 7: Final determination on student misconduct

The Nominated Academic will refer the matter to the Registrar who will refer the matter to the Vice-Chancellor. The Vice-Chancellor will then direct the Registrar to conduct an investigation or direct the matter back to the relevant Faculty (Policy, clauses 5.7.3, 5.7.4 and 5.7.5).

Outcome of the internal academic dishonesty process

Some IPM students were determined to have breached the Policy and have engaged in academic misconduct. The process stopped at Step 5 above, as the conduct was not considered serious enough to constitute “student misconduct”.  Students received a warning and were required to redo the relevant assignment. No major breaches of the Policy that would constitute “serious misconduct” were identified.

Are there any “defences” to academic dishonesty?

In short, no. The Policy does not allow for any defences. The media reported IPM students complained of being under significant pressure. Being under pressure is not a legitimate excuse. Do medical students think that a qualified doctor is not under any pressure? Medicine is a highly stressful profession and students need to be able to cope with this pressure without resorting to dishonesty. Dishonesty is not acceptable as a medical professional and it should not be acceptable for medical students. The media has also reported IPM students have complained the IPM unit was flawed in that it was meaningless and useless. This is not an excuse for academic dishonesty. If your patient dies half way through the year, you should inform the course coordinator, not fabricate meetings, responses and signatures.

Can decisions be appealed?

Another principle of procedural fairness is that decisions made against an individual should be able to be appealed. Students have a few appeal options:

1.       Make formal application to the Faculty – for academic misconduct determinations;

2.       Appeal to the Student Appeals Body (see the University of Sydney (Student Appeals against Academic Decisions) Rule 2006 (as amended) – for academic misconduct determinations;

3.       Appeal to the Student Disciplinary Appeals Committee, a body created by s78 of the University of Sydney By-Law 1999 (NSW), which is made up of a current or former judge, a Fellow, and a lawyer with at least 5 years post-admission experience – for serious student misconduct determinations;

4.       Make a complaint to the NSW Ombudsman;

5.       Commence legal proceedings in the Supreme Court. This is a difficult option in practice as you will need a cause of action and be able to establish damages. A student is likely to struggle with breach of contract arguments, as it is the student who contracted to abide by university policies upon enrolling. Procedural fairness arguments are unlikely to be successful, as universities are very careful to follow the procedural fairness steps provided for in policies.

Academic dishonesty and criminal law

The medical students who engaged in academic misconduct such as forging signatures and creating patient details are also potentially liable under the NSW criminal justice system. The Crimes Act 1900 (NSW) lists a number of offences that could apply to the student’s academic misconduct including fraud, identity offences and forgery. However, many of these statutory offences have an additional element that the fraud or forgery occur to obtain a financial or property benefit, which would rule out certain offences from applying to academic dishonesty conduct. There may be some common law criminal offences that apply where the additional element to fraud and forgery is not required. Even if there were clear cut criminal offences that would apply to forging signatures in the academic context, police and enforcement agencies are likely to view academic misconduct as a contractual matter between the University and students and not intervene.

What about the students who have graduated and are working?

Three of the students involved in the academic misconduct have now graduated and are working as medical professionals. Having “got away” with dishonest conduct while at University, these medical professionals may struggle with coping appropriately with the pressures of the profession, including abiding by the Australian Medical Association’s Code of Conduct. The Code of Conduct is an ethical guide for practitioners, but has been used by courts to determine the scope of a doctor’s duties to clients. In particular, students who disengaged from the IPM subject which aims to teach students about the difficulties chronically ill patients face may struggle with the “Dying Patient” clauses in the Code of Conduct:

“1.4 The Dying Patient

1. Remember the obligation to preserve life, but, where death is deemed to be imminent and where curative or life-prolonging treatment appears to be futile, try to ensure that death occurs with dignity and comfort.
2. Respect the patient's autonomy regarding the management of their medical condition including the refusal of treatment.
3. Respect the right of a severely and terminally ill patient to receive treatment for pain and suffering, even when such therapy may shorten a patient's life.
4. Recognise the need for physical, psychological, emotional, and spiritual support for the patient, the family and other carers not only during the life of the patient, but also after their death.”

Generally speaking dishonest conduct is unethical conduct. Principle 2.1 of the Code of Conduct actually requires medical professionals to report unethical conduct for Peer Review. Academic dishonesty by medical students should be taken seriously, as further down the career path, the doctor and patient are potentially at risk by the fact dishonesty was not appropriately reprimanded at University.

Why was a cautious approach taken?

The outcome for the IPM medical students who engaged in academic dishonesty was that students received a warning and had to redo the assignment. To me, this seems inadequate for the nature of the conduct as reported in the media which included forging patient signatures and reporting about consultations and patients that did not take place. The inadequacy of the academic dishonesty outcome is even more pronounced when you consider the increasingly widespread prevalence of academic dishonesty and the need to deter students.

The main reason a cautious approach is taken by universities is image control. Having academic dishonesty in the media is terrible press. Sydney Medical School has a reputation as being one of the best medical schools in Australia, and such widespread academic misconduct is incredibly damaging. By merely providing students with a warning and a new assignment rather than escalating the conduct to “student misconduct”, where students would appeal and may extend adverse media attention, the University is saving face. There is a real gap between society’s ethical expectations that doctors will act honestly and with integrity and the way medical students are treated when they display obvious signs of dishonesty and misconduct.

While academic dishonesty continues to be treated as a private matter between universities and their students, one of the only ways for universities to deter academic misconduct is to actually use the policy mechanisms they have in place. This will involve escalating serious matters to “student misconduct”. Deterring students from academic dishonesty and teaching students basic concepts of honesty should be valued ahead of any adverse PR consequences.