The ANF Legal Team

ANF HAS YOU COVERED IN THE MOST IMPORTANT WAYS

Last year over 500 ANF members needed a legal referral from the ANF Helpline to the in-house ANF Legal Team. With this number expected to increase by 100 members each year we take a closer look at this vital service provided free to ANF members’.

The free ANF Legal Service

In 2010 nursing and midwifery registration went national with the creation of Australian Health Practitioner Regulation Authority (AHPRA) and within 12 months it became clear to the ANF Council that members in WA were going to need a much more robust legal representation than ever before and so the ANF Council moved away from expensive law firms and created the ANF Legal Service: purpose built to provide free legal representation for ANF members in Western Australia.

Continuous Expansion of Legal Services

Starting with just one lawyer in 2011 the ANF Legal Service has continued to grow and develop to ensure all members have access to the right kind of legal representation when required. Last year there were 500 legal referrals and this number is increasing by 100 referrals each year.

The all-female team currently consists of nine lawyers led by the ANF Director of Legal & Industrial Services Belinda Burke and they assist ANF members with work related legal matters including registration issues with or complaints made to AHPRA, disciplinary investigations, civil litigation, coronial investigations, court proceedings and complex industrial relations matters where legal proceedings may be anticipated or imminent. According to Belinda, it’s crucial that members have access to legal advice and representation, especially as so much of a nurse or midwife’s working life can be exposed to various legal processes. “A member may be confronted with an adverse patient event at any time in their daily working life,” Belinda explains. “Nurses and midwives are also heavily regulated as professionals by AHPRA and are subject to potential complaints to AHPRA and investigations,” Belinda said.

This can be stressful at any time. Throw in a pandemic and the pressure grows tenfold.

Belinda understands the legal process is a foreign one for nurses and midwives.

"As a lawyer, if I go into a hospital as a patient, the hospital environment is a very different one for me, I am unfamiliar with the sounds, equipment, and processes. I keep this in mind and understand that this unfamiliarity is shared by nurses and midwives whenever they step into a court room, or are the subject of a legal proceeding" Belinda said.

Which is why the Legal Service is so important and which is why streamlining the service has been a priority for the ANF.

Belinda recounts her arrival at the ANF in February 2000 when she first commenced work as the ANF Senior Industrial Officer. She says it was a challenge to organise legal assistance for members with lengthy processes in place.

Members would contact the ANF to ask for help, then make an application for legal assistance. This would be referred to a committee of the Council of the ANF. If approved, funding would be allocated for assistance from an external law firm. However, the funding was limited. “There were no guarantees of ongoing funding,” Belinda explains, “and a member may only have sufficient funds allocated for just one component of their legal issues.”

Perhaps one of the biggest issues though, was that there was a lot of red tape involved. “Each stage required internal ANF approval meetings and there were inherent delays.”

This all changed with the creation of the in-house legal team in 2011. It meant that approvals could be made directly from the ANF Helpline where members can be referred immediately for legal assistance and receive timely and relevant legal assistance, prioritised according to the urgency of the situation.

Indeed, it is not uncommon for a member to be facing two or three related but separate legal processes arising from the same incident. They now get a streamlined legal service which ensures seamless and integrated legal solutions to suit the nuances of their particular issues.

Another challenge faced by members was the creation of AHPRA and the introduction of the Health Practitioner Regulation National Law (WA) Act 2010. According to Belinda, the legislation imposes a higher level of accountability on health professionals.

“The legislation created a range of new reporting obligations in relation to relevant events which must be reported to AHPRA, and regarding conduct.”

Jennifer, Belinda and Michelle outside the Central Law Courts where the ANF Legal Team represents members in coronial inquests

“The introduction of this legislation has resulted, in our experience, in an increasing number of matters being investigated by the regulators and of course an increasing requirement for legal advice and representation for members,” Belinda said.

Belinda says that AHPRA processes are generally taking longer than they have done so in the past.

Before AHPRA was created, if a nurse was facing some form of suspension or serious sanction, the case would be relocated to, and dealt with swiftly by, the State Administrative Tribunal, because the Nurses and Midwives Act 2006 required it to referred there within 14 days.

Now, there is no such timeframe and AHPRA and the Nursing and Midwifery Board of Australia can take is some cases up to two years to refer a matter to the Tribunal, with a nurse potentially suspended for the entire period while they wait. This, Belinda says, ‘along with the frustratingly long time AHPRA matters generally seem to take to be investigated, has been a retrograde consequence of the new regulatory scheme and a constant battle for the ANF Legal Service.

L-R: Jenny Morris, Jane Lovett, Belinda Burke, Brona McGovern, Donné Oosthuizen

Growing demand leads to streamlined access to services

To ensure the most cost effective service and to stop legal costs blowing out, it was crucial that the ANF legal services were streamlined.

The first step, according to Belinda, is identifying all the relevant work related legal issues that may be confronting the member, keeping in mind that one issue may involve multiple legal processes. “The death of a patient, for example, may potentially involve a request for a statement from or interview with the police, whether they are acting on behalf of the Coroner, or conducting a criminal investigation; a statement for the workplace, a workplace investigation which could be either a disciplinary investigation, or a sentinel event investigation; and even potentially an AHPRA matter.”

As each issue is assessed and categorised, the relevant legal processes can be identified and dealt with accordingly, including any additional legal referrals for that member that may be required to appropriately deal with the matter. In addition, the legal priorities of the member are considered and the legal work sorted and coordinated in a manner that protects their legal interests to protect those of greatest significance for their professional situation.

I am proud of my team, every single lawyer has one thing in mind – the best interests of the member they are assisting.

Belinda Burke

Of course, there are also cost savings for members, with access to the ANF Legal Service covered in member fees. If members were to engage a lawyer privately to assist with either a Coronial Inquest or an AHPRA matter, it would be at their own expense. These matters can be lengthy and engaging a lawyer outside of the ANF Legal Service can quickly add up to ten’s of thousands of dollars.

Importantly, the ANF Legal Service is also the gatekeeper for matters that may fall under the ANF professional indemnity policy. ‘Clearly we assess each issue to determine whether a claim is warranted or whether a matter fits within the policy parameters. Where that is the case, we will initiate the process for a professional indemnity claim’ says Belinda.

A Growing Service

ANF Assistant Secretary Janet Reah says the good news for members is that the ANF Council has put aside funds to employ at least one additional lawyer to the ANF Legal Service each year without increasing membership fees.

“The additional lawyer is necessary because of the growing membership as well as the growing list of problems that are now being dealt with by AHPRA that may have previously been dealt with at the workplace level,” Janet said."

And for the team themselves, they value their work and want to ensure nurses, midwives and carers are legally looked after. Michelle Nguyen is one of the senior lawyers who has been a member of ANF Legal Team for 10 years.

“The most rewarding thing I have found about working with ANF members is being able to provide legal assistance, guidance and support to nurses, midwives and carers who find themselves encountering legal issues that they have never had to deal with before in their career,” she says. “Through my work at the ANF I have become much more appreciative of our members and their work in our community.” The same goes for another 10 year legal team veteran and senior lawyer, Jennifer Lee. “My job has helped me gain a better insight into the challenges that our members face as health professionals and their valuable contribution to our health and safety,” Jennifer says. “What I find most rewarding about working with ANF members is being able to make a positive difference in their lives by advising and representing them on legal issues they are often dealing with for the first time in order to achieve successful outcomes.”

Belinda is also proud to lead a team of professional, competent lawyers whose only focus is looking after the best interests of members. “I am proud of my team, every single lawyer has one thing in mind – the best interests of the member they are assisting” she says.

ANF Assistant Secretary, Janet Reah says she would like to expand the range and extent of legal services the ANF offers to members in the future to include non-work related legal matters. “I feel there is a place for further legal services to members in the future and consider the ANF Legal Service to be in an ideal position to deliver these additional services,” Janet said.

Mark Olson and Belinda Burke outside the Industrial Relations Commission in 2001 reading the outcome of the workload case Belinda ran as Senior Industrial Officer which delivered 400 extra nurses and regulation of nursing workloads for the first time in Western Australia