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Health Business

Newsletter December 2012

Registrations Standards and Declarations to AHPRA Health practitioners registered under the Health Practitioner Regulation National Law 2009 (the National Law), or seeking registration under the National Law, should ensure that they are familiar with the requirements of the Registration Standards developed by the applicable National Board. The Registration Standards concern the following:

refuse to grant the registration if the applicant does not meet the requirements for registration in a Registration Standard.

• professional indemnity arrangements;

insurance

• Has completed continuing professional development requirements;

• matters about the criminal history of applicants for registration, registered health practitioners and students registered by the Board;

• Has not practised and will not practise without appropriate professional indemnity insurance;

2 NSW Complaints Overview

and also details concerning:

4 Unfair dismissal claims for redundancy sounds warning to business owners

• requirements for continuing professional development for registered health practitioners; • requirements about the English language skills required by an applicant for registration; and • requirements in relation to the nature, extent, period and recency of any previous practice of the profession. The obligations to comply are continuing, that is not just at the time of initial registration but throughout registration. Failure to comply may be evidence of unsatisfactory conduct. All current Registration Standards (together with other applicable Codes and Guidelines) may be found on the relevant National Board website. The National Law states that when making a determination in relation to application for initial registration (or the renewal of registration) the relevant Board must

In an application for renewal of registration, a practitioner must provide a declaration accompanying their application confirming that the registrant: • Does not have an impairment; • Has met any recency of practice requirements;

• Any change in the registrant’s criminal history (convictions, pleas and charges whether in Australia or elsewhere); • The withdrawal or restriction of rights to practise at a hospital or other facility because of the registrant’s conduct, professional performance or health; • The withdrawal of restriction of billing privileges under the Medicare Australia Act 1973 (Cth) because of the registrant’s conduct, professional performance or health; • Any complaint made about the applicant to a registration authority or another entity having functions in relation to the professional services provided by the registrant; and • Any other information required under a Registration Standard. Providing false or misleading information in the statement may be a ground upon which a Board can refuse to renew a practitioner’s

In this edition: 1 Registrations Standards and Declarations to AHPRA 3 Proposed privacy law reforms


T h e Tr e s s C o x H e a l t h B u s i n e s s N e w s l e t t e r registration. In Nursing and Midwifery Board of Australia v FH [2010] QCAT 675, the Board brought proceedings before the relevant tribunal on the grounds that an applicant for re-registration had made a false statement on his application and had failed to disclose a number of charges (and on the grounds of the applicant’s subsequent conviction as a result of the indictable offences the subject of the charges): “The statutory declaration goes to a fundamental issue for registration as a nurse, the applicant’s fitness to hold a position of significant trust. It is a key component of the protective function of registration. The importance of accurate and comprehensive disclosure is reflected in the significant penalty the Tribunal has

imposed on FH”. A false declaration to the National Board may also have criminal implications. A practitioner who makes a false declaration to the Board in their statutory declaration may be found guilty of an offence under the Statutory Declarations Act 1959 (Cth), which is punishable by up to 4 years’ imprisonment. The Registration Standards are relevant in professional conduct proceedings. The National Law provides that a Registration Standard can be admissible in proceedings against a health practitioner as evidence of what constitutes appropriate professional conduct or practice for the health profession. More specifically, Registration Standards can

also constitute behaviour for which health, conduct or performance action may be taken in relation to the following (for example): • failure to undertake the continuing professional development required by an approved registration standard; and • practising without appropriate professional indemnity insurance arrangements in place. Dominique Egan - Partner Sydney Phone: (02) 9228 9261 Dominique_Egan@tresscox.com.au Jennifer O'Grady - Solicitor Brisbane Phone: (07) 3004 3529 Jennifer_O'Grady@tresscox.com.au

NSW Complaints Overview Many practitioners are familiar with the complaints process in NSW. However, for those practitioners who are not or are new to the profession, the below provides a very brief overview of the life of a complaint about a medical practitioner in NSW. In NSW, complaints about medical practitioners are dealt with by AHPRA, the Health Care Complaints Commission (HCCC) and the Medical Council of NSW (Medical Council). A complaint may be made to AHPRA, the Medical Council or the HCCC. The majority of complaints will be referred to the HCCC no matter which organisation initially received the complaint. The HCCC is required to assess each complaint made in writing about a health practitioner. When the HCCC initially assesses a complaint, it usually contacts the complainant to clarify any issues and seeks any further details required at that time. The HCCC, in compliance with the Health Practitioner Regulation National Law (“the Act”), then notifies the practitioner who is the subject of a complaint and will usually seek an initial response to the complaint.

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The HCCC may also obtain any relevant health records to assist in the assessment of clinical issues, and may seek advice from internal medical advisers. When the complaint concerns a registered practitioner the HCCC is required to consult with the relevant registration authority. For medical practitioners in NSW the relevant

registration authority is the Medical Council. The assessment of a complaint should be completed within 60 days of receipt. However, according to the HCCC’s annual report for 2011/12, 88.1% of complaints were assessed within this time frame, with the average length of assessment being 43 days [1]. The HCCC is required to inform the practitioner within 14 days of the assessment decision and the reasons for that assessment decision. There are a number of possible outcomes available to the HCCC upon assessment of a complaint. No further action The HCCC may determine to discontinue dealing with a complaint. This could be for a number of reasons, including that the complaint may be better dealt with by some alternative means. In the year 2011/12, 65% of complaints about medical practitioners were assessed as requiring no further action [2]. Conciliation The HCCC may determine that a complaint can be resolved with the assistance of a resolution officer. This is formally known as referring a complaint for conciliation. Participation in assisted resolution or conciliation is voluntary and parties cannot be compelled to participate. Investigation by the HCCC In a relatively small number of complaints, the

HCCC may determine that the complaint requires formal investigation where, if substantiated, the complaint could provide grounds for disciplinary action. In short, the test for establishing unsatisfactory professional conduct is that the practitioner’s conduct is significantly below the reasonable standard expected of a practitioner or an equivalent level of training or experience. In the year 2011/12, only 6% of complaints about medical practitioners were assessed as warranting investigation by the HCCC [3]. The HCCC does not provide copies of the evidence it collects to the medical practitioner and therefore, a practitioner may not see such evidence until it is served during formal disciplinary proceedings. The HCCC’s procedure is usually to summarise the allegations and provide the practitioner with the opportunity to respond to the allegations without seeing or knowing what documentation the HCCC has obtained. At the end of the investigation phase, which may take 12 months or longer to complete, the HCCC may decide to refer the complaint to the Director of Proceedings to determine whether there is sufficient evidence to warrant the taking of disciplinary action before a Professional Standards Committee or a Medical Tribunal. Referral of the Complaint to the Medical Council The HCCC may determine to refer a complaint about a medical practitioner to the Medical


Council to consider taking appropriate action, such as counselling, performance interview or referral directly into the performance program. The Medical Council will usually provide the practitioner with an opportunity to provide a response and an opportunity to address any issues raised by the HCCC which caused the matter to be referred to the Medical Council.

the Medical Council has concerns in relation to the standard of their clinical performance. The program is designed to provide an avenue for education and re-training where inadequacies are identified, while at all times ensuring that the public is properly protected. It is intended to address patterns of practice rather than one off instances, unless the single incident is suggestive of a broader issue.

If a complaint is referred to the performance program, the Medical Council then takes over the carriage of the matter. The performance program is designed to assist practitioners where

Dealing with a complaint can be particularly stressful and time consuming for a medical practitioner. Seeking professional assistance early will usually result in achieving the best

possible result and have the matter resolved as expeditiously as possible. It is essential that a medical practitioner contact his or her MDO upon receipt of any complaint.

Scott Chapman - Partner Sydney Phone: (02) 9228 9317 Scott_Chapman@tresscox.com.au Megan Priestley - Associate Sydney Phone: (02) 9228 9272 Megan_Priestley@tresscox.com.au

Proposed privacy law reforms In August 2008 the Australian Law Reform Commission (ALRC) produced a report titled ‘For Your Information: Australian Privacy Law and Practice’ (the Report). The Report included 295 recommendations in response to the request by the Australian Government in 2006 to inquire into the whether the Privacy Act 1988 (Cth) (the Act) and related laws provided an effective framework for the protection of privacy in Australia. The Government proposes to respond to the Report in two stages. The Privacy Amendment (Enhancing Privacy Protection) Bill 2012 (Cth) (the Bill) addresses 197 of the policy recommendations made by the ALRC. In May 2012 the Bill was introduced into the House of Representatives and referred to an inquiry. Reports by the House of Representatives Standing Committee on Social Policy and Legal Affairs (House Committee) and the Senate Legal and Constitutional Affairs Legislation Committee (Senate Committee) were tabled reports in September 2012. At the time of going to print, the Bill was before the Senate. The Bill amends the Privacy Act 1988 and replaces the current privacy principles for the public (Information Privacy Principles) and private (the National Privacy Principles) sectors with a single set of privacy principles: the Australian Privacy Principles (APPs). The Bill also includes amendments which are intended to give effect to a comprehensive credit reporting system; provides for codes of practice under the APPs; clarifies the functions and powers of the Information Commissioner and increases the Commissioner’s authority to resolve complaints, recognises and encourages

the use of external dispute resolutions services, the conduct investigations and promotes compliance with privacy obligations. The Bill makes consequential amendments to 55 Acts. It is expected that there will be further legislation in the future to give effect to more of the ALRC’s recommendations. In terms of the collection, use and disclosure of health information, the APPs do not significantly alter the position as now applies under the NPPs. One addition that has attracted some debate is the inclusion of APP 6.2(d) which stipulates that an APP entity that is an organisation may use or disclose information when a permitted health situation exists. Permitted health situations are defined in the Bill (see clause 16B). Under the APPs the circumstances in which the collection, use and disclosure of health information are permitted are really the same as the current regime. Indeed, it has been suggested in some forums that the change in terminology may create a mistaken belief on the part of some health practitioners that there is now greater scope for the collection, use and disclosure of health information when this is not in fact the case in practise. The permitted health situations are as follows: • Health information may be collected about an individual if: »» The information is necessary to provide a health service to the individual; and »» The collection is required or authorised by or under an Australian law or the information is collected in accordance

with rules established by competent health or medical bodies that deal with obligations of professional confidentiality that bind the organisation; • Health information may be collected, used or disclosed about an individual for research relevant to, or the compilation of statistics relevant to, public health or safety, or the management, finding or monitoring of a health service and that cannot be done by the collection of de-identified data and it is impracticable to obtain consent and collection is required or authorised by or under an Australian law or the information is collected in accordance with rules established by competent health or medical bodies that deal with obligations of professional confidentiality that bind the organisation or under guidelines issued under the Act; • Genetic information may be used or disclosed about an individual if: »» The information was collected in the course of providing a health service to the individual (the first individual); and »» The organisation reasonably believes the use or disclosure to be necessary to lessen or prevent a serious threat to the life, health or safety of another individual who is a genetic relative of the first individual (the second individual); and »» The use or disclosure is made under guidelines approved under the Act; and »» In the case of disclosure, the disclosure is made to the second individual. • Disclosures are expressly permitted to a third person responsible for an individual who is physically or legally incapable of giving consent

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to the disclosure or cannot communicate consent and the disclosure is necessary to

We will keep our readers advised regarding the future progress of the Bill.

provide appropriate care or treatment or is made for compassionate reasons and the disclosure is not contrary to a wish of the individual previously communicated.

Dominique Egan - Partner Sydney Phone: (02) 9228 9261 Dominique_Egan@tresscox.com.au

Unfair dismissal claims for redundancy sounds warning to business owners As the economy continues to challenge businesses, medical practices across Australia are seeking greater labour flexibility. As such the number of redundancies is continuing to increase, bringing with it a rise in unfair dismissal claims. Although a genuine redundancy can be a complete defence to an unfair dismissal claim, a practice employee who is not aware of the overall profitability of their medical practice, or not aware of changes in the practice’s patient base or strategic direction, may see their redundancy as contrived, and therefore unfair.

For example, one aspect of current legislation many employers overlook is the compulsory obligation of employers to consider whether an otherwise redundant employee could be offered an alternative role within a business. The obligation is company-wide, not just in the subsidiary which employs the worker. This can be a positive step to avoid any issues arising from disgruntled employees. Below are some practical tips for Doctors and Practice Managers when dealing with dismissals and redundancies:

There has been a consistent increase in the number of unfair dismissal claims over the past 3 years. The number continues to rise and can be costly and time consuming for Practice Principals who may not have done anything wrong, strictly speaking.

• Undertake consultation with employee groups once redundancy becomes likely

Despite the limitations of unfair dismissal claims under the Fair Work Act, such as small business exemptions and the threat of costs awards in unreasonable claims, medical practices should be vigilant in guarding against unfair dismissal claims by implementing stringent workplace procedures.

• If selecting one employee over another, as opposed to redundancy of a whole group or division, consider the strengths and weaknesses of each impartially

It is important that those in the medical sector are aware of ways that they can implement fair dismissal in the first instance and prevent legal action.

• Check industrial agreements for industry specific obligations • If appropriate, avoid redundancies by offering alternative employment within the business

• Ensure correct notice and redundancy pay are offered

Rachel Drew - Partner Brisbane Phone: (07) 3004 3527 Rachel_Drew@tresscox.com.au

Health Team Contacts Scott Chapman Partner, Sydney Phone +61 2 9228 9317 Scott_Chapman@tresscox.com.au Dominique Egan Partner, Sydney Phone +61 2 9228 9261 Dominique_Egan@tresscox.com.au Don Munro Partner, Sydney Phone +61 2 9228 9219 Don_Munro@tresscox.com.au John Petts Partner, Melbourne Phone +61 3 9602 9432 John_Petts@tresscox.com.au Lara Larking Partner, Melbourne Phone +61 3 9602 9706 Lara_Larking@tresscox.com.au Katharine Philp Partner, Brisbane Phone +61 7 3004 3536 Katharine_Philp@tresscox.com.au

www.tresscox.com.au Sydney Level 20 135 King Street Sydney NSW 2000 Phone +61 2 9228 9200 Fax +61 2 9228 9299 Melbourne Level 9 469 La Trobe Street Melbourne VIC 3000 Phone +61 3 9602 9444 Fax +61 3 9642 0382 Brisbane Level 4 40 Creek Street Brisbane QLD 4000 Phone +61 7 3004 3500 Fax +61 7 3004 3599 Canberra Level 1 88-96 Bunda Street Canberra ACT 2601 Phone +61 2 6156 4332 Fax +61 2 9228 9299

twitter.com/TressCox This newsletter has been prepared for the general information of clients and contacts of TressCox. While it deals with and comments on the law in specific areas it is not intended to provide legal advice. Readers should seek professional advice about their particular circumstances prior to acting on anything contained in this publication. Global Affiliations - ALFA International

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[1] Health Care Complaints Commission Annual Report 2012, page 7 [2] Medical Council of New South Wales Annual Report 2012, page 11 [3] Medical Council of New South Wales Annual Report 2012, page 11

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In order to provide legal services around the globe, TressCox maintains strong international affiliations with other law firms through our membership of ALFA International. Founded in the USA in 1980, ALFA International is the premier association of law firms in the world and is currently comprised of 140 independent member firms throughout North America, Latin America, Asia / Australasia, Africa and Europe. There is only one ALFA International member firm in each major jurisdiction in Australia, with TressCox being the member firm for New South Wales and Queensland. ALFA International’s basic objective, through its member firms, is to improve the quality and efficiency of legal services and to provide those services to clients at a reasonable cost.


Tresscox Health Business Newsletter - December 2012