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Managing risk: The importance of documentation in AT assessment and prescription
Documentation is an important part of occupational therapy practice across all settings and funders. When prescribing assistive technology (AT), it is essential that clinicians thoroughly document the assessment and clinical reasoning behind their recommendations. By doing so, occupational therapists can proactively minimise the risk of a successful legal challenge being made against their prescription.
OTA’s Karen Brown spoke with Tom Ballantyne, Principal Lawyer, Maurice Blackburn Lawyers and Michelle French, Director and Principal Occupational Therapist, Michelle French & Associates, to discuss defensible documentation in the context of AT. Tom and Michelle shared their insights and practical strategies to support occupational therapists to minimise their risk when it comes to AT assessment and prescription.
Karen: Tom, could you start by telling us a bit about the Australian Consumer Law and how it affects occupational therapists?
Tom: Under the Australian Consumer Law, products and services come with automatic guarantees that they will work and do what you paid for. If a business fails to deliver the guarantees they can be liable for repair, replacement, refund and/or compensation.
Products (such as pieces of AT) must be of acceptable quality and fit for purpose; and services (such as occupational therapy assessments and recommendations) must
Karen Brown, NSW/ACT Divisional Manager, Occupational Therapy Australia Tom Ballantyne,Principal Lawyer, Maurice Blackburn Lawyers Michelle French, Director and Principal Occupational Therapist, Michelle French & Associates
be provided with acceptable care and skill or technical knowledge and taking all necessary steps to avoid loss and damage. They also have to be fit for the purpose or provide the result the client wants the service to achieve.
Karen: A common challenge for occupational therapists is that their prescription may be impacted by a number of factors that are outside of their control. For example, a client may go against the clinician’s advice, or the client may have a degenerative condition that renders a piece of AT no longer fit for purpose by the time it arrives. What could occupational therapists do in circumstances like these?
Tom: The good news is there are exceptions and defences for these kinds of situations. While I can’t speak for specific cases, broadly speaking, an occupational therapist would not be liable if:
• The client was unclear about what result they wanted to achieve or did not say; • A client goes against your advice; • The breach of the guarantee was caused by the advice/actions of someone else; or • The breach of the guarantee was caused by factors beyond human control that occurred after the services were supplied.
This is one of the reasons why it’s so important to keep good records of your assessment and clinical reasoning when you prescribe AT.
Karen: So what exactly can an occupational therapist do to minimise their risk of a successful legal challenge being made against their prescription?
Tom: From a legal perspective, you can minimise risk by conducting and documenting thorough assessments and clinical reasoning which justifies your prescriptions.
According to the AHPRA Shared Code of Conduct, clinicians should keep accurate, up-to-date, factual, objective and legible records that report relevant details of clinical history, clinical findings, investigations and information given to patients.
These should be kept in a form that can be understood by other health practitioners and, importantly, should be made at the time of events or as soon as possible afterwards.
Karen: If a claim did need to be defended what sort of documentation and information is likely to be relevant?
Tom: It’s important to note that anything which contains health information could be relevant to a legal claim. This may include client records, assessment and testing results, emails with suppliers, as well as less formal modes of communication such as texts and messaging services such as WhatsApp.
If a claim needs to be defended, the kind of information in your documentation which is likely to be relevant are things like:
• Details of assessment, including results of any testing; • Discussions with client, including about options; • Client instructions, including about expectations for device; and • Your advice and recommendations, including pros and cons of various options.
Karen: Michelle, could you provide some insights into what should be included in OT documentation from a clinical perspective?
Michelle: Good documentation should be in chronological record, telling the readers who did what and when. It should tell the story of the AT in a clear sequence of events, including conversations, trials and decisions.
Documentation should clearly detail the client’s progress at any point in time, as well as the progress in delivering an AT solution. It should detail the client’s environment and the need for the requested AT, inclusive of any potential risks.
Karen: Can you describe the AT journey further, including what it looks like and how this can be documented?
Michelle: I like to think of AT prescription in three parts. In the beginning, it is the OT’s job to undertake assessments to clearly articulate what is needed and why. Go back to basics and think about the person, their environment and their occupational performance.
In the middle, identify and engage appropriate suppliers. If possible, trial the AT in all known environments and activities and document the outcomes of these trials. Use photos to supplement written documentation.
And finally, allow the time you need to write the AT implication. Make sure you have all the information you need and that you seek assistance and advice when you need it.
Karen: It’s great that you mentioned suppliers as I know this can be a tricky Maurice Blackburn offers OTA members free telephone advice and a free first consultation. For more information, contact Andrew McKenzie, National Relationship Manager:
Phone: (07) 5430 8746 Email: AMcKenzie@mauriceblackburn.com.au Website: www.mauriceblackburn.com.au/partnerships/ota/
space to navigate. Do you have any tips for working effectively with suppliers?
Michelle: I think of AT prescription as a triangulated process which involves the clinician, the supplier or manufacturer, as well as the end user or client. As an AT prescriber, it is essential that you build strong relationships with prescribers and have a mutual understanding of what is needed. Communicate clearly and often: pre-trial, post-trial, during supply and post supply.
Karen: Do you have any final words of wisdom for occupational therapists working in this space?
Michelle: Remember that good documentation is not just about protecting yourself against liability. In many cases, such as in the NDIS, your expert opinion is drawn on to make a funding decision and the quality of your report will influence that decision. Be sure to proofread your AT application as words can make a difference.
And finally, make sure that you have access to the support that you need to support your clients. Professional associations and industry groups such as OTA and the Australian Rehabilitation and Assistive Technology Association (ARATA) are great resources. Build your professional networks and recognise that you can benefit from mentoring at any stage in your career.
Karen: Thank you, Tom and Michelle, for sharing your knowledge and insights with us in relation to the importance of documentation in AT assessment and prescription.
About the authors
Tom Ballantyne Tom Ballantyne is a Principal Lawyer and the head of Maurice Blackburn’s Victorian medical law practice. Tom joined the firm as a trainee lawyer in 2006 and has practiced exclusively in medical negligence since 2007. He is also a member of the Law Institute of Victoria Council and the Australian Lawyers Alliance Victorian committee.
Michelle French Michelle French is a leader in the area of occupational therapy medicolegal practice, having worked both nationally and internationally for over 30 years. She is the Director and Principal Therapist for Michelle French and Associates.
Karen Brown Karen is the Divisional Manager for NSW and the ACT at Occupational Therapy Australia. Karen has over 20 years of experience as an occupational therapist working primarily in public health across acute and rehabilitation hospitals, transition care and in the community in clinical, project and health management roles.
The content of this article is drawn from a Hot Topic presented by Tom Ballantyne and Michelle French in May 2022. For more information about OTA’s Hot Topic series, go to otaus.com.au/cpd-and-events/hot-topic-events
