Nurses and the Law: 5th edition by Queensland Nurses and Midwives' Union

Nurses and t h e Law 5 th EDITION

Contents

How to use this book

CHAPTER 1:

01 Members rights to representation

02 CH

CHAPTER 2:

The Australian legal system CHAPTER 3:

03 National registration of nurses and midwives

CHAPTER 4:

04 Professional practice issues

3 4

CHAPTER 9:

09 Privacy and the right

CHAPTER 10:

10 Confidentiality

131

matters

143

Information in a hurry

146

CPD

149

Bibliography

150

153

50 78

CHAPTER 6:

CHAPTER 7:

112

07 Your role as a witness

workersâ&#x20AC;&#x2122; compensation

120

CHAPTER 5:

06 Employment issues

CHAPTER 8:

to information

05 Mandatory reporting

08 Being safe at work and

Disclaimer: Every effort has been made to ensure the information in this handbook is accurate for the state of Queensland as at the time of review. The handbook is not intended as a legal textbook and should not be relied upon as legal advice. It is intended as a general guide only. Members of the QNMU who are seeking advice in relation to work or professional issues should contact QNMUâ&#x20AC;&#x2122;s Member Connect on 07 3099 3210 or 1800 177 272 or submit a Member Request for Representation form which can be found in the member section of the QNMU website. If you are a member of the QNMU and your legal matter relates to issues outside of work (e.g. making a Will) then please submit a Legal Plus request form. Contributors: The QNMU would like to thank the following people who contributed to developing this publication: Beth Mohle, Linda Lavarch, Judy Simpson, Luke Forsyth, Jamie Shepherd, James Gilbert, Vonnie Semple, Katie Rowsell, Deidre Morrow, Linda Brady and Melissa Campbell.

NURSES AND THE LAW 5th EDITION 1

Foreword Welcome to the 5th edition of Nurses and the Law. This publication is designed to give you an overview of the Australian legal system as it relates to your work. As a practising nurse or midwife you may be reasonably aware of the laws and professional guidelines that govern what you do in your workplace, but even with that knowledge you may still find yourself in a situation where you may not know what to do or who to contact. This helpful guide gives you information about what to do in those circumstances. It also explains how the law will operate in different situations, which is particularly important if there is the potential for professional misconduct or criminal charges to be laid.

Beth Mohle

In this yearâ&#x20AC;&#x2122;s Nurses and the Law we have added a chapter on confidentiality matters, with special reference to your obligations around social media. We have also expanded Chapter 6 Employment Issues to include more information about freedom of association and adverse action, which refers to your right to be part of a union. Other content has been updated to reflect legislative changes and reforms implemented since the last edition of Nurses and the Law was published in 2014. As always, we have included a CPD reflective exercise at the back of this book to help you meet the CPD hours required as part of your registration. The QNMU is committed to supporting you and your profession, and this book, designed as a free resource exclusive to members like you, is part of that commitment. Whether you work in the public health system, private hospitals, aged care or community health, this handbook is for you. We hope you enjoy Nurses and the Law 5th Edition.

Beth Mohle Sandra Eales Secretary Assistant Secretary

2 NURSES AND THE LAW 5th EDITION

Sandra Eales

How to use this book T

his book is designed to be a practical resource for working nurses and midwives.

It can be used as a go-to guide when you need answers to specific legal queries, or as a professional development tool.

Reference guide Nurses and the Law is set out in an easy chapter-by-chapter fashion to enable you to find what you are looking for fast. While we have taken every effort to ensure the accuracy and currency of the information in this book at the time of going to print, it is important to note that it is a general guide only and should not be relied upon as legal advice.

CPD resource material One of the best uses of this publication is as a resource for professional growth and development. By reading and reflecting on what you have read, you can use this publication to accumulate CPD hours for your AHPRA registration. There are a number of ways you can reflect on your reading and its implications for your professional practice, but if you would like some guidance, turn to our CPD information page on page 149.

If you are a QNMU member and need legal or professional advice about a workplace issue, we strongly urge you to contact QNMUâ&#x20AC;&#x2122;s Member Connect on 07 3099 3210 or 1800 177 273 or submit a Member Request for Representation form at www.qnmu.org.au/rfr

NURSES AND THE LAW 5th EDITION 3

Members rights to representation

General information – legal As part of QNMU membership members are assured of comprehensive industrial, legal and professional representation in relation to work-related matters. These include: ■■ professional matters reported to the Office of the Health Ombudsman (OHO) and referred to Australian Health Practitioner Regulation Agency (AHPRA)/Nursing and Midwifery Board of Australia (NMBA) ■■ WorkCover issues ■■ Coronial Inquests ■■ other inquiries. The QNMU may provide representation where appropriate in the following courts and tribunals: ■■ state and federal industrial relations commissions/courts ■■ Magistrates’ courts in non-criminal matters ■■ those relevant to workers’ compensation matters including Medical Assessment Tribunals, The Workers’ Compensation 4 NURSES AND THE LAW 5th EDITION

Regulatory Authority (Workers’ Compensation Regulator) reviews, Industrial Magistrates Court, Queensland Industrial Relations Commission, Queensland Industrial Court ■■ those convened by OHO/AHPRA/NMBA for competency, conduct and health complaints. ■■ NMBA disciplinary matters in the Queensland Civil and Administrative Tribunal (QCAT) ■■ appeals against decisions of the NMBA to the QCAT ■■ Coronial Inquests—when the member is required to give a statement or is summoned ■■ Queensland Crime and Corruption Commission ■■ Anti-Discrimination Commission Queensland complaints and QIRC for work related complaints of alleged unlawful discrimination after they have been investigated and referred to the QIRC by the Anti-Discrimination Commission Queensland (ADCQ), and the Australian Human Rights Commission

■■ specially constituted commissions of inquiry, for example the Barrett Adolescent Centre Commission of Inquiry (2015/16). Based on the QNMU’s assessment of your matter, representation may be provided by either a QNMU official (e.g. an Organiser, Servicing Organiser, Servicing Industrial Officer, Industrial Officer or Professional Officer) or by external lawyers from the QNMU panel of lawyers. In some proceedings costs can be awarded. In these proceedings, the QNMU will enter into an agreement with the member so that if a member is successful in recovering costs from the proceedings the QNMU will seek reimbursement from the member for any costs paid by the QNMU on the member’s behalf (up to a maximum of the amount ordered by the court or tribunal). In some proceedings, a costs order may be made against a member. In these circumstances, the member will be solely responsible to pay the costs of the other side.

The QNMU will not seek reimbursement from the member if costs are not recovered in the proceedings. For more details refer to the QNMU Member representation policy on the QNMU website at www.qnmu.org.au/ memberrepresentation Members with work-related matters should contact Member Connect or submit a Member Request for Representation online. Members are reminded that they should contact the QNMU as soon as advice is required. Do not delay in seeking advice. Statements pertaining to issues of a legal nature should not be submitted until you have contacted and/ or received prior advice from the QNMU.

Members with work-related matters should contact Member Connect or submit a Member Request for Representation online.

NURSES AND THE LAW 5th EDITION 5

Members rights to representation

OHO/AHPRA/NMBA matters

WorkCover claims

We know there are few things more distressing in your professional life than to have a complaint made against you to the regulators including, the Nursing and Midwifery Board of Australia (NMBA).

If you have suffered an injury at work, the QNMU can provide you with assistance in applying for workers’ compensation, appealing a Workers’ Compensation Regulator decision to the Queensland Industrial Relations Commission and everything to do with the statutory claims process.

Financial members* of the QNMU have access to immediate and expert legal assistance from lawyers who specialise in professional registration, conduct and discipline law. The QNMU retains the services of lawyers who have expertise in all matters related to the professional registration of nurses and midwives such as: ■■ notifications (complaints) to the OHO / AHPRA/ NMBA ■■ problems with applications for registration, renewal and re-entry ■■ professional misconduct charges, including hearings in the Queensland Civil and Administrative Tribunal (QCAT) ■■ NMBA investigations ■■ appeals to QCAT against NMBA decisions. Simply complete a Member Request for Representation form.

Employment matters The QNMU employs officers with extensive experience representing members in all matters related to their employment. If you need advice and representation in relation to employment matters, such as disciplinary action, termination, discrimination, grievances, wage claims or contract reviews, contact Member Connect or complete an online Member Request for Representation form.

Conditions apply for new members with pre-existing notifications

6 NURSES AND THE LAW 5th EDITION

If you need advice on your workers compensation claim, complete an online Member Request for Representation form. The QNMU will provide legal representation for workers’ compensation appeals subject to receiving legal advice confirming the likely success of such an action or appeal. Assistance for applications for the initial review of a Workers’ Compensation Regulator or other insurer’s decision will be assessed by the QNMU and provided where appropriate. Workers’ Compensation legislation timeframes make it extremely important that you seek advice as soon as possible if you sustain an injury at work. It is also vitally important that if you believe you have suffered a psychological injury at work you seek advice as soon as possible. Psychological injury claims are the most difficult claims to get WorkCover to accept. Early legal advice can mean the difference between your claim being accepted or rejected. Visit www.qnmu.org.au/rfr to access the Member Request for Representation Form.

QNMU LegalPlus free legal service – for your personal and family legal needs QNMU LegalPlus is a benefit of QNMU membership, providing financial QNMU members and their immediate family with access to a free initial consultation and discounted legal services. QNMU LegalPlus provides financial members and immediate family members with: ■■ one free, initial consultation# with a lawyer to provide advice on a legal issue; ■■ a free standard will service; ■■ discounted legal fees should the member retain the firm to represent them if their legal issue cannot be resolved in the initial free consultation^.

QNMU LegalPlus gives financial members access to expert lawyers in the areas of: ■■ personal injury law including: ◆◆ non-work related injury claims ◆◆ motor vehicle claims ◆◆ public and product liability claims ◆◆ medical negligence claims ◆◆ asbestos and dust disease claims ◆◆ disability insurance and superannuation claims (non-work related) ◆◆ acquired/traumatic brain injury ■■ family law, including: ◆◆ separation ◆◆ divorce ◆◆ parenting matters ◆◆ property settlement

# A reading fee may be charged in circumstances where significant amounts of documentation are required to be reviewed prior to the consultation. ^ The QNMU does not pay for matters referred to QNMU Legal Plus firms. All cost and expenses incurred by members who engage a QNMU LegalPlus firm must be met by the member in accordance with the terms of the client agreement between the QNMU LegalPlus and the member.

NURSES AND THE LAW 5th EDITION 7

Members rights to representation

◆◆ mediation

◆◆ estate planning;

◆◆ financial agreements

◆◆ family provision applications

◆◆ same-sex relationships ◆◆ domestic violence ◆◆ surrogacy ◆◆ child support ◆◆ consent orders ◆◆ de facto law ■■ wills and estate matters, including: ◆◆ estate administration – applications for probate, letters of administration, transmission of title applications; ◆◆ advising on and drafting of wills, enduring powers of attorney, powers of attorney, advanced health directives;

8 NURSES AND THE LAW 5th EDITION

■■ criminal law; ■■ property law, including house/unit sales and purchases; ■■ immigration law.

How do I access QNMU LegalPlus? If you need legal advice from QNMU LegalPlus you should complete the QNMU LegalPlus Referral online from the QNMU website. Visit www.qnmu.org.au/legalplus to access the QNMU LegalPlus Referral Form.

The Australian Legal System W

e all operate and function within the Australian legal system. Every aspect of our daily lives is in some way regulated or touched by the law. This is particularly the case as regulated health care professionals. The information contained in this book aims to give you a brief overview of the more common legal issues that you will confront working as a nurse, midwife or assistant-innursing/personal carer. In the following paragraphs we give a short overview of some of the key components of the system. In particular we will touch on the following: ■■ the sources of law in the Australian legal system ■■ the differences between ‘civil’ and ‘criminal’ law ■■ the courts and tribunals ■■ the differences between federal and state law ■■ the role of lawyers ■■ alternative dispute resolution.

Sources of law Common Law The Australian legal system is based on the English legal system. It has two principal sources of law. The first of these is known as the ‘common law.’ It is the law derived from the traditional law of England as developed by judges in the courts of Australia, England and other countries with similar, ‘common law’ legal systems. The way judges apply the law in courts is that in any given matter they consider any previous decisions of courts, especially higher courts, and decide cases in the same way unless the cases are inconsistent with a higher court decision or wrong at law. The courts, over time, develop legal principles which are applicable to particular legal situations and these principles are meant to be applied consistently from case to case. This is known as the doctrine of precedent. Over many years the courts have decided cases based on all sorts of different facts. Judges will seek to find a previous case with facts as close as possible to the one before NURSES AND THE LAW 5th EDITION 9

The Australian Legal System

Where the facts of the current case don’t fit any of the previous cases that have been decided, the judge will decide the current matter as consistently as possible with the previous cases, and established legal principles, thus continuing to expand the common law.

For example, s.51(xxxv.) of the Constitution allows the Federal Government to make laws for “conciliation and arbitration for the prevention and settlement of industrial disputes extending beyond the limits of any one State”. This power is the foundation for much of Australia’s unique and innovative industrial relation systems.

Statute Law

The states

them to guide them in deciding the case in the same way.

The second principal source of law in the Australian legal system is law made by the federal, state and territory parliaments.

The states are not restricted by a list of powers and can legislate generally in all areas where the federal government does not have a specific constitutional power.

The federal government has the power to legislate in relation to ‘heads’ of power contained in the Australian Constitution, largely in Part V of the Constitution.

The laws made by state parliaments and the Federal Government are called ‘legislation’ or ‘statutory law’ and are made up of Acts of parliament and regulations.

Federal

10 NURSES AND THE LAW 5th EDITION

The differences between federal and state law As you would expect federal laws are made by the federal parliament and state law by the state parliament. The federal parliament was established in 1901 when the Commonwealth of Australia made its first tentative steps away from British rule. It was established to operate within a set of rules which are contained in the Australian Constitution. The constitution sets out what the powers of the federal parliament are and the federal parliament can only make laws within those powers. State governments generally can make laws about anything else.

If the federal government and the state government make a law about the same thing, then the federal law overrules the state law if there is any inconsistency between the two lawsâ&#x20AC;&#x201D;provided the federal law is constitutionally valid.

Parliament law versus common law Law made by parliaments overrides the common law where the common law is inconsistent with the intention of the parliament expressed in legislation. Therefore the courts have to look at what the legislation says, and follow that, before referring to the common law. This is because our legal system, existing as it does in a

NURSES AND THE LAW 5th EDITION 11

The Australian Legal System

democracy, vests the ultimate law-making power in our elected representatives. Before an Act becomes law it must be passed by the parliament. While it is being debated by the parliament it is called a ‘Bill’ and it only becomes an ‘Act’ when it is passed. Once passed, other rules may be made to assist how the Act is used or administered. These are called subordinate legislation and the most common forms are ‘regulations’ and ‘statutory instruments’. The courts also have a role in the interpretation of legislation. Sometimes legislation may have a contentious meaning, or the effect or operation of the legislation may be disputed between contesting parties in a case. The courts, either by making a ‘declaration’ at the request of a person as to how the legislation should be interpreted, or in judgement in a case, will interpret the legislation. The decision constitutes common law. It can be overridden by the parliament enacting legislation.

The differences between civil and criminal law There are two broad branches of the law in our legal system; ‘civil law’ and ‘criminal law’. One helpful way to think of civil law is as a ‘sorting out’ of disagreements between people that they can’t resolve on their own. The disagreements could be about property, for example a dispute over a will, or they could be personal, for example a personal injury claim or unfair dismissal. Criminal law on the other hand is about rules of behaviour and the consequences of breaking those rules (i.e. punishment). 12 NURSES AND THE LAW 5th EDITION

When the courts are considering cases, some different rules apply for criminal and civil cases. For example, in both civil and criminal cases the person taking the case to court (the plaintiff in civil cases, the prosecutor in criminal cases) has the burden of proving the case. This is called the ‘onus of proof’. In criminal matters, the prosecutor can discharge this onus by establishing the facts that support a criminal offence. The standard of proof required in a criminal matter is ‘beyond reasonable doubt’. A good way of explaining this standard is contained in the Supreme and District Court Benchbook which references the direction proposed in Green v The Queen (1971) 126 CLR 28 at 33:

A reasonable doubt is such a doubt as you, the jury, consider to be reasonable on a consideration of the evidence. It is therefore for you, and each of you, to say whether you have a doubt you consider reasonable. If at the end of your deliberations, you, as reasonable persons, have such a doubt about the guilt of the defendant, the charge has not been proved beyond reasonable doubt. However, the standard of proof in civil cases is lower and is generally referred to as the â&#x20AC;&#x2DC;balance of probabilitiesâ&#x20AC;&#x2122; test. The person trying to prove a fact only needs to convince the court that it is more likely than not that the fact is true (see Briginshaw v Briginshaw (1938) 60 CLR 336).

Courts and tribunals Australia has a hierarchy of courts and tribunals that administer the law. These courts and tribunals generally deal with either civil matters or criminal matters.

Other courts include the Federal Court and the Federal Circuit Court, and in Queensland the Court of Appeal, the Supreme Court, the District Court and the Magistrates Court. Some specialist courts include the Coroners Court, the Queensland Industrial Court, and the Family Court of Australia. In addition to the courts a number of tribunals exist that deal with particular matters. These include the Federal Administrative Appeals Tribunal, and in Queensland, the Queensland Civil and Administrative Tribunal (QCAT), which deals with nursing and midwifery matters such as disciplinary action and appeals of decisions of the Nursing and Midwifery Board of Australia.

Alternative dispute resolution Alternative dispute resolution (ADR) is a term given to a variety of processes utilised for resolving civil matters with the objective of avoiding the expense and time of a full trial.

Some courts and tribunals have become quite specialised while many are split along state and federal lines and deal with state and federal laws respectively.

Many specialist tribunals only determine matters as a last resort where ADR has failed. Many courts also have the capacity to refer matters to an ADR process to see if the matter can be resolved without going to trial.

Courts and tribunals can only deal with matters within the limits of their authority or jurisdiction.

For example, in unfair dismissal matters and discrimination complaints, the first step in the process is to attend a conciliation conference.

If someone involved in a case thinks a court or tribunal has acted outside their jurisdiction, or has made an incorrect decision of some kind, then they can attempt to challenge that decision in a higher court through a judicial review or appeal.

The conciliation conference is a without prejudice, or confidential, meeting between the parties moderated by a conciliator, with the objective of seeing if the parties can resolve the controversy between them without the necessity of trial. Courts frequently order that the parties engage in mediation.

In Australia the highest court is the High Court of Australia. Every other court must follow precedents set by the High Court.

This is also a confidential process, run under the guidance of a trained mediator, which also NURSES AND THE LAW 5th EDITION 13

The Australian Legal System

has the objective of trying to get the parties to resolve their disagreement prior to a formal hearing of the dispute in the Court.

You should always seek advice from the QNMU whenever you are required to participate in a coronial process.

Even in the criminal jurisdiction, ADR processes are frequently being used, for example justice mediations.

Negligence

The role of lawyers Lawyers have two duties. They have a duty to their client and they have a duty to the court. A lawyer’s primary duty is to the court. This is why the Australian legal system relies so heavily on lawyers. The lawyer is expected to have explained to their client their rights and obligations according to law and presented their client’s case comprehensively to the court to assist the court in determining the matter.

Common law principles of negligence underpin most causes of action for personal injury. These types of civil claims are described as torts because they involve a claim for damage suffered because of a breach of a duty of care to someone. Negligence, in a tortious sense, involves an ‘act’ or ‘omission’ that causes harm in circumstances where that harm was reasonably foreseeable if due care was not taken. For a plaintiff to succeed in an action in negligence the requisite standard of proof requires the following elements to be established on the balance of probabilities:

The conduct of lawyers is controlled and regulated by, in Queensland, the Legal Professions Act 2007. Complaints in relation to the conduct of lawyers are made to the Legal Services Commission.

■■ that a duty of care was owed by the health care professional

Negligence and a Health Professional’s Duty of Care

■■ that the breach of duty caused or materially contributed to the damage suffered, that damage being physical, mental or economic loss and

Coronial Inquiries At some point in their working life most nurses and midwives will likely have to provide information in the Coroner’s Court as a result of a coronial inquest into the reportable death of a person under their care. The Coroner will make recommendations based on the information given during the inquest, which may include action taken or not taken by health professionals. There is more information in relation to this and other related topics in Chapter 4 Professional Practice Issues and Chapter 7 Your role as a Witness. 14 NURSES AND THE LAW 5th EDITION

■■ that there was a breach of that duty of care (that is, the health care professional fell below the required standard of care)

■■ that the loss or damage suffered was reasonably foreseeable in the circumstances. Criminal negligence, unlike negligence in a tortious sense, goes beyond a mere matter of compensation to the plaintiff by the defendant, such that the act or omission causing harm shows such a disregard for the life and safety of others so as to amount to a crime against the State and conduct deserving of punishment. Prosecution for criminal negligence or manslaughter requires the Crown to prove its

case to the criminal standard of proof, beyond reasonable doubt.

Factors that may determine the existence of a duty of care include:

Duty of care A duty of care is based on there being a relationship of closeness or proximity between the parties. It is generally accepted that a duty of care will be owed by a health professional to a patient.

■■ whether the defendant knew or ought to have known of a risk and whether the plaintiff had the means to appreciate the existence of the risk to which they were exposed as a result of the defendant’s conduct

Cases decided before the courts over a number of years have established certain relationships that will be recognised as relationships where a duty of care will arise.

■■ where the health professional is able to foresee or know of a risk, and the patient has no such knowledge and is therefore unable to protect themselves.

Some examples of those recognised categories of relationships include doctorpatient, solicitor-client, and school-child.

A duty of care arises between a health carer and a person when the health carer has accepted that person as their client/patient.

NURSES AND THE LAW 5th EDITION 15

The Australian Legal System

Duty of care to third parties A duty of care is owed not only to patients but also to other persons whose personal wellbeing and property may be harmed by failure to take reasonable care of a patient. Health carers are encouraged by the law to assist those in urgent need. No health carer has been held liable for acting as a Good Samaritan. In Queensland, by operation of section 16 of the Law Reform Act 1995 (Qld), liability does not attach to a medical practitioner, nurse or other person prescribed under a regulation for any act done or omitted in the course of rendering first aid, medical care or assistance to an injured person in emergency circumstances where the act or omission is done in good faith, without gross negligence, and performed without fee or reward. The Civil Liability Act 2003 (Qld) provides protection from liability at law to those rendering first aid, other aid or other assistance given to persons in distress which includes persons injured or at risk of injury, and persons who are suffering, or apparently suffering, from an illness.

Position of the defendant The law generally does not have regard to the circumstances of the defendant unless the plaintiff has knowledge of the particular circumstances of the defendant. For example, in the case where a nurse is newly registered, the law gives no special dispensation unless the plaintiff has knowledge of the inadequacies and lack of skill of the defendant.

The gravity of the risk The greater the risk, the more care that needs to be taken. 16 NURSES AND THE LAW 5th EDITION

Compliance with policies and procedures and usual practice will generally demonstrate reasonable care. But it will not always provide a defence where common practice is regarded by the court to be inadequate or wrong.

Vicarious liability This is a common law legal principle which basically means that an employer can be liable for the wrongful acts or omissions of its employees. Therefore if an employee wrongfully causes injury or damage whilst performing their work related duties, the victim can sue the employer as well as the employee. It is important that members do not in any circumstances agree to waive in whole or in part their employer’s vicarious liability. Members should also be aware that vicarious liability does not provide vicarious immunity to a nurse or midwife. An employer has a right at common law to seek an indemnity from a negligent employee; that is, an employer can sue an employee to recover damages resulting from the breach of an employee’s contractual obligation to use reasonable care and skill in the performance of their duties (Lister v Romford Ice 1957). It is therefore strongly advised that nurses and midwives have their own insurance, such as the QNMU’s professional indemnity insurance, which is obtained as one of the benefits of membership of the QNMU. If ever you are asked to agree to waive in whole or in part your employer’s vicarious liability, you should always seek advice from the QNMU before you provide a response to your employer.

National registration of nurses and midwives T

he National Registration and Accreditation Scheme commenced on 1 July 2010. The scheme provides nationally consistent legislation regulating the registration and accreditation of 14 health group professions in Australia.

Paramedics are due to be included in the National Registration and Accreditation Scheme in late 2019.

The 14 health professions covered by the National Registration and Accreditation Scheme are: ■■ chiropractors ■■ dentists ■■ doctors ■■ nurses and midwives ■■ optometrists ■■ osteopaths ■■ pharmacists ■■ physiotherapists ■■ podiatrists ■■ psychologists ■■ medical radiation practitioners ■■ occupational therapists. ■■ Aboriginal and Torres Strait Islander health practitioners ■■ Chinese medicine practitioners NURSES AND THE LAW 5th EDITION 17

National registration of nurses and midwives

Health Practitioner Regulation National Law Act 2009 The law governing the National Registration and Accreditation Scheme is the Health Practitioner Regulation National Law Act 2009 (the ‘National Law’). The Act was passed by the Queensland Parliament on 3 November 2009. The National Law provides the statutory framework for the registration and accreditation scheme for the regulated health professions which includes nursing and midwifery. Since the introduction of the Health Ombudsman Act 2013 in Queensland, the National Law reference is to the Health Practitioner Regulation National Law (Queensland).

Structure of the national registration scheme Ministerial Council Under the National Law a ministerial council has been established whose membership is made up of the health ministers of each state and territory and the Commonwealth.

The law governing the National Registration and Accreditation Scheme is the Health Practitioner Regulation National Law Act 2009 (the ‘National Law’). 18 NURSES AND THE LAW 5th EDITION

The Ministerial Council (MINCO) is empowered to give directions to the Australian Health Practitioner Regulation Agency (AHPRA) about the policies to be applied by AHPRA in exercising its functions under the National Law.

Australian Health Practitioner Regulation Agency The Australian Health Practitioner Regulation Agency (AHPRA) was established under the National Law to provide the following functions: 1. provide administrative support to the National Boards 2. develop and administer procedures for the purpose of ensuring the efficient and effective operation of the National Boards, including the Nursing and Midwifery Board of Australia (NMBA) 3. establish procedures for the development of accreditation standards, registration standards and codes and guidelines approved by National Boards for the purpose of ensuring the National Scheme operates in accordance with good regulatory practice 4. negotiate health agreements concerning fees payable by health practitioners, annual budgets of National Boards and the services to be provided by National Boards with each of the National Boards 5. establish and administer procedures for receiving and dealing with applications for registrations 6. notifications against health practitioners in relation to conduct, competency and health 7. keep publicly accessible registers of registered health practitioners for each of the health professions

Pursuant to s.35 of the National Law the functions of the NMBA include:

Essentially, AHPRA is the body which supports, administratively and operationally the NMBA, and its state Boards. 8. keep an up-to-date register of students for each health profession

a. registering nurses and midwives and, if necessary, imposing conditions on the registration of nurses and midwives b. determining the requirements for registration or endorsement of registration as a nurse or midwife, including any arrangements of supervised practice c. developing or approving standards, codes and guidelines for nursing and midwifery (most relevantly, registration standards)

9. keep an up-to-date register of approved study programs for each health professional

d. approving accredited programs of study which provide qualifications for registration or endorsement in nursing and midwifery

10. provide advice to the Ministerial Council in relation to the administration of the national scheme.

e. assessing the knowledge and clinical skills of overseas trained applications for registration in nursing and midwifery

AHPRA is required under the National Law to discharge many of these functions in conjunction with the NMBA. Essentially, AHPRA is the body which supports, administratively and operationally the NMBA, and its state Boards.

f. negotiating with AHPRA appropriate fees for nursing and midwifery registration

The Nursing and Midwifery Board of Australia The Nursing and Midwifery Board of Australia (NMBA) was established under the Health Practitioner Regulation (Administrative Arrangements) Act 2009. It is the board for nurses and midwives across Australia. The NMBA replaced the former Queensland Nursing Council (QNC). The NMBA is provided administrative assistance in the discharge of its functions by AHPRA.

g. overseeing the assessment and investigation of matters about nurses and midwives referred to it by AHPRA h. establishing panels to conduct hearings about: i. health and performance and professional standards matters involving nurses and midwives ii. health matters in relation to student nurses and midwives i. refering disciplinary matters to the Queensland Civil and Administrative Tribunal or the Health Ombudsman, j. overseeing the management of nurses and midwives and student nurses and midwives, including monitoring conditions, NURSES AND THE LAW 5th EDITION 19

National registration of nurses and midwives

undertakings and suspensions imposed on the registration of nurses and midwives or students k. keeping an up-to-date national register of students in the health profession l. keeping an up-to-date national register of nurses and midwives in the profession m. at the NMBAâ&#x20AC;&#x2122;s discretion, providing financial or other support for health programs for registered nurses and midwives and student nurses and midwives.

Registration requirements under the national scheme

Section 52 provides that a person is eligible for registration as a nurse or midwife if: a. they hold a qualification approved by the NMBA b. the person has completed any period of supervised practice or any examination or assessment required by a registration standard c. the person is a suitable person to hold general registration d. the person is not disqualified under the National Law or law of another jurisdiction from applying for registration or being registered in nursing and midwifery

Part seven of the National Law deals with the registration of health practitioners. Section 53 of the National Law provides the qualifications for general registration as a nurse or midwife.

e. the person meets the registration standards approved by the NMBA.

In order to be qualified for general registration a person must satisfy the following criteria:

b. provisional registration, generally to be provided in circumstances where an individual is required to complete a period of supervised practice required for general registration

a. The practitioner must hold an approved qualification for the health profession. In this respect the NMBA has published a list of approved qualifications which are available on the NMBA website. b. The person holds a qualification equivalent to one the NMBA considers acceptable as an approved qualification. For example, applicants for registration who have completed a qualification prior to the commencement of National Registration or who have undertaken their nursing and midwifery studies in a foreign jurisdiction would be able to seek to have their qualification approved under this provision. 20 NURSES AND THE LAW 5th EDITION

The National Law also recognises a number of other types of registration including: a. specialist registration

c. limited registration, which may be granted in circumstances for post graduate training or supervised practice, or area of need d. public interest limited registration e. teaching or research f. non-practising registration. Under the national scheme there are two separate registers for nurses and midwives: a register of nurses and a separate register of midwives. On the register of nurses there are two divisions: a. Registered Nurses (division 1) b. Enrolled Nurses (division 2).

f. endorsement for nurse practitioners registration standard g. endorsement for scheduled medicines RNs registration standard h. endorsement for scheduled medicines for midwives registration standard i. registration standard for midwives with scheduled medicines endorsement j. nursing and midwifery endorsement scheduled medicines registered nurses registration standard.

Student registration The registration of students studying to become health practitioners is a new feature introduced by the National Scheme. As of March 2011, all students enrolled in approved nursing or midwifery study programs, and who were not already registered, were included in the National Scheme. The NMBA registers students for the duration of their study or clinical training, or until they are no longer enrolled in an approved program.

Registration standards The NMBA has developed a number of registration standards which were approved by the Ministerial Council and came into effect on 1 July 2010. They are: a. criminal history registration standard b. english language skills registration standard c. professional indemnity insurance registration standard d. continuing professional development (‘CPD’) registration standard e. recency of practice registration standard

All nurses and midwives across Australia are required to meet and comply with the standards relevant to their profession in order to be registered. Standards are often reviewed, but those on the NMBA website are always current. At the time of printing, the endorsement for scheduled medicines RN registration standard was being review by the NMBA. QNMU members can access consultations on the NMBA’s website under ‘News’.

Criminal history registration standard Under Part 7, Division 6 of the National Law the NMBA is required to undertake a criminal history check of all applicants for registration. The powers of the Board in relation to criminal history checking are essentially very similar to the obligations previously placed upon applicants for registration or enrolment with the QNC. The NMBA will obtain a criminal history report from CrimTrac, a state or territory police service or, in relation to international applicants, a foreign jurisdiction. NURSES AND THE LAW 5th EDITION 21

National registration of nurses and midwives

The existence of a criminal history does not automatically mean a person is unsuitable for registration.

has been decriminalised since the health practitioner committed, or allegedly committed, the offence

In deciding whether a health practitionerâ&#x20AC;&#x2122;s criminal history is relevant to their practice as a nurse or midwife the Board considers the following factors:

g. the health practitionerâ&#x20AC;&#x2122;s behaviour since she or he committed, or allegedly committed, the offence

a. the nature and gravity of the offence or alleged offence and its relevance to health practice b. the period of time since the health practitioner committed, or allegedly committed, the offence c. whether a finding of guilt or conviction was recorded for the offence or a charge for the offence is still pending d. the sentence imposed for the offence e. the ages of the health practitioner and of any victim at the time the health practitioner committed, or allegedly committed, the offence f. whether or not the conduct that constituted the offence or to which the charge relates

h. the likelihood of future threat to a patient of the health practitioner i. any information given by the health practitioner j. any other matter the NMBA considers relevant. Criminal history under the National Law includes: 1. every conviction of a person for an offence and every plea of guilty or finding of guilt by the person for an offence 2. every charge made against the person for an offence. Under the National Law the Criminal Law (Rehabilitation of Offenders) Act in Queensland does not apply. You are likely to be required to disclose a matter to the NMBA even if no conviction was recorded. At the time of renewing their registration nurses and midwives are also required to advise the NMBA of any criminal history that they have not previously disclosed, or which occurred in the preceding registration year. This does not include minor traffic or parking infringements where you pay the fine and the matter is resolved. However if you are charged with a driving offence that requires an appearance in court, contact QNMU immediately for advice on whether it needs to be disclosed.

22 NURSES AND THE LAW 5th EDITION

However the standard has been reviewed by the NMBA and now requires:

The existence of a criminal history does not automatically mean a person is unsuitable for registration. If you have a criminal history when you apply for registration, or during the course of a registration year or if you are required pursuant to s.130 of the National Law to disclose a ‘relevant event’ (a charge against you, or a guilty plea or finding—see further information in Chapter 5: Mandatory Reporting) you should contact the QNMU for assistance with disclosing such matters to the Board. Failure to disclose a relevant event can result in the NMBA taking disciplinary action against you. The NMBA may also conduct audits from time to time of registered practitioners which will usually include a criminal history check.

English language skills registration standard The NMBA’s English language skills registration standard was a source of significant controversy upon the introduction of the National Scheme and made it quite difficult for some nurses and midwives to meet the standard.

“An applicant for registration as a registered nurse and/or a registered midwife who has provided evidence of completion of five (5) years*(fulltime equivalent) of education taught and assessed in English, in any of the recognised countries listed in this registration standard, is considered to have demonstrated English language proficiency and has met the requirements of this standard.” In respect of the type of education required by the standard the new English Standard provides: “The completion of five (5) years (fulltime equivalent) education taught and assessed in English means five (5) years full-time equivalent of either: ■■ tertiary and secondary; or ■■ tertiary and vocational; or ■■ combined tertiary, secondary and vocational education” In the absence of being able to demonstrate five (5) years fulltime education taught and assessed in English, applicants must undertake a NMBA approved test of English proficiency. Currently the NMBA approved tests are: a. the International English Language Testing System (IELTS) Examination Academic Module with a minimum score of seven in each of the four bands; listening, reading, writing and speaking, or b. completing with grades of A or B each of the four components of the Occupational English Language Test (OET). NURSES AND THE LAW 5th EDITION 23

National registration of nurses and midwives

The National Board recognises the following countries where the applicant was taught and assessed in English at either vocational and tertiary or combined secondary, vocational and/or tertiary education levels: ■■ ■■ ■■ ■■ ■■ ■■ ■■

Australia Canada New Zealand Republic of Ireland South Africa United Kingdom United State of America

This registration standard does not provide the NMBA any scope whatsoever to consider other evidence which may indicate that an applicant for registration has suitable English language skills to practise in the profession. The QNMU believes that nurses and midwives must have sufficient English language skills to safely practise in the profession. However, the QNMU believes that, for many reasons, the reliance solely on examinations aimed to assess the academic ability of students applying for study at tertiary institutions in Australia, which completely ignores any evidence of vocational English language skills, will ultimately disadvantage nurses and contribute further to the nursing and midwifery skill shortage in Australia. The English language standard has caused immense hardship to many nurses and midwives applying for registration since the commencement of the national registration scheme. Many nurses and midwives, who undertook their secondary education and nursing or midwifery education in English, have been unable to obtain registration because of this standard. 24 NURSES AND THE LAW 5th EDITION

Unfortunately this hardship has not been remedied by the new standard. Despite the exemption in the English Standard which states that “the Board reserves the right to consider and/or grant an exemption … where there is compelling evidence demonstrating English language proficiency equivalent to the standard”, the NMBA has inexplicably constrained this exemption to groups of applicants, removing its ability to determine applications on their merit, on a case by case basis. The QNMU can arrange advice or assistance for financial members with applications for registration who may have difficulty complying with the English Standard.

Professional indemnity insurance arrangements registration standard Perhaps the most significant change in the registration requirements for nurses and midwives brought about by the National Scheme is the National Law’s requirement that nurses and midwives have in place ‘appropriate professional indemnity insurance arrangements’ as a requirement of practice. Section 129 of the National Law provides that a nurse or midwife must not practise in the profession unless they have ‘appropriate professional indemnity insurance arrangements’ in force in relation to their practice. A failure to hold these arrangements, although not an offence, could constitute grounds for the NMBA taking action against a nurse or midwife. Nurses and midwives are also required to declare on their annual renewals that they held ‘appropriate professional indemnity insurance arrangements’ in the preceding registration year.

A nurse or midwife can be registered with the NMBA without appropriate professional indemnity insurance arrangements in place provided they do not practise until they satisfy the NMBAâ&#x20AC;&#x2122;s professional indemnity insurance arrangements registration standard. The registration standard applies to registered and enrolled nurses, registered nurses endorsed as nurse practitioners, registered midwives, and registered midwives endorsed as midwife practitioners. The registration standard does not apply to students of nursing and midwifery, nurses and midwives who have non-practising registration, and registered midwives who are exempt from the registration standard under the National Law. Exempt registered midwives Section 284 of the National Law provides that midwives practising private midwifery will be exempt from the requirement to hold appropriate professional indemnity insurance arrangements during a transition period. Private practice midwifery is defined in the National Law as practising the midwifery profession in the course of attending a home birth, without appropriate professional indemnity insurance arrangements in force and when you are not employed by another entity. Therefore, this exemption does not apply to midwives employed by a hospital or other health service provider. The midwife must obtain the informed consent (meaning written consent) that the woman (to birth) is aware that the midwife does not have appropriate professional indemnity insurance arrangements in place and any other information which may be required by the NMBA.

The midwife is also required to comply with any requirements set out in a code or guideline approved by the NMBA in relation to midwives practising private midwifery. Other important information Like the English standard, there has been significant controversy surrounding the professional indemnity insurance registration standard. The QNMU argued, prior to the commencement of the National Scheme, that it made a number of assertions that were wrong at law and were liable to lead nurses and midwives into unwittingly breaching s.129 of the National Law. As a consequence of this controversy, the NMBA released a new professional indemnity insurance registration standard which commenced on 10 January 2012. The new PII Standard is significantly different to the one introduced at the commencement of national registration.

...a nurse or midwife must not practise in the profession unless they have â&#x20AC;&#x2DC;appropriate professional indemnity insurance arrangementsâ&#x20AC;&#x2122; in force in relation to their practice. NURSES AND THE LAW 5th EDITION 25

National registration of nurses and midwives

How do I meet the NMBA’s PII standard? You must not practise unless you are covered by appropriate PII arrangements which cover your full scope of practice (s.129 National Law). PII requirements will differ depending on the type of practice in which you engage and according to the particular level of risk that attaches to such practice. Your PII must cover you for: a. civil liability for loss arising from any negligent act, error or omission b. appropriate retroactive cover for matters arising from prior practice The following section addresses questions frequently asked by nurses and midwives about their obligations to:

c. automatic reinstatement and

1. have professional indemnity insurance

The PII standard states that it is your responsibility to understand the nature of the insurance cover under which you practice. It is not acceptable to simply rely on the assurances of others — such as your employer — that you are covered.

2. meet the PII Standard, and 3. comply with the Health Practitioner Regulation National Law Act 2009 (National Law).

d. run-off cover for when you cease practice.

On your application for renewal, you are required to confirm to the NMBA that you are covered by appropriate PII. If you are unable to confirm this, you will not be able to practise until you have appropriate PII in place. 26 NURSES AND THE LAW 5th EDITION

AHPRA may audit your compliance with this PII Standard. Failure to be truthful on your renewal form will make you liable not only for disciplinary action by the NMBA, but also criminal charges for swearing a false declaration. If you practise without appropriate PII insurance, you will have breached the National Law, making yourself liable for disciplinary action by the NMBA. This may result in the NMBA cancelling your registration. The QNMU’s PII provided as a benefit of membership to financial QNMU members meets the requirements of the NMBA’s PII Standard. My employer tells me I am completely covered by their insurance. Is this correct? The NMBA’s PII standard squarely places the responsibility for compliance with the PII standard upon you. It is not enough to rely upon the assurances of others that you meet the standard. You must ensure that the PII that you declare to the NMBA covers your full scope of practice. If you are a QNMU member you are fully covered, but if you have colleagues who rely upon your employer for PII cover, please advise them that they need to check the employer’s insurance policy to ensure that it covers their practice for civil liability, negligent acts or omissions, retroactive cover, automatic reinstatement and runoff cover. If their employer’s policy does not cover all of the above, they will not meet the PII standard and will be liable for disciplinary action by the NMBA.

If I am a nurse operating as an independent contractor or sub-contractor, will the QNMU PII cover me? Yes. The QNMU PII obtained as a benefit of membership will cover you when practicing as an independent contractor or subcontractor with your own ABN in your own name only. Any work carried out in a trading name — registered or unregistered, company, trust or foundation, partnership, joint venture or any other business name or entity is excluded under the QNMU PII policy. What does the QNMU’s PII do for me? The QNMU’s PII is a guarantee to members that they are complying with the PII standard. QNMU PII covers the full scope of practice of all registered nurses and employed midwives practising in Queensland. It contains retroactive cover and run-off cover, and it has extensions of coverage for public liability and product liability claims. The QNMU’s PII is perhaps the best product available to nurses and employed midwives in Australia. If you are a QNMU member, you have QNMU comprehensive insurance and you meet the PII standard. The QNMU strongly advises nurses and midwives to hold their own professional indemnity insurance policy obtained as a benefit of QNMU membership. It is the easiest and cheapest way of obtaining comprehensive PII that meets the PII standard.

NURSES AND THE LAW 5th EDITION 27

National registration of nurses and midwives

Insurance issues for midwives The NMBA has published the Guidelines for Professional Indemnity Insurance Arrangements for Midwives. Aside from setting out the insurance requirements for midwives generally, this sets out the requirements for obtaining an exemption under s.284 of the National Law. As stated earlier, private practice midwives engaged in home birthing are currently exempt from the professional indemnity registration standard for that aspect of the care. The exemption under s.284 of the National Law does not apply to independent midwives in private practice who do not engage in home birthing. One professional indemnity insurance scheme available to independent midwives is subsidised by the federal government and offered by Medical Insurance Group Australia, and has been available to private practice midwives since 1 November 2010. This product enables independent midwives to offer Medicare funded care to expectant mothers. However, it is only available to those who can demonstrate that a collaborative arrangement is in place with a medical practitioner, or that an individual care plan (for each woman) has been provided to the hospital providing obstetric services. This exemption from the requirement to have professional indemnity insurance in s.284 of the National Law is strictly limited to the provision of private intrapartum care provided in a homebirth setting. Midwives working in private practice will still require appropriate insurance to provide 28 NURSES AND THE LAW 5th EDITION

antenatal and postnatal care to women in their care, regardless of the planned location of the birth. The exemption is only available if midwives meet the requirements set out in s.284 of the National Law. In order to be eligible for the exemption, midwives must meet the following requirements: 1. Informed consent must be given by the woman who is the client of the midwife who is in private practice. Informed consent is defined specifically as written consent given by a woman after she has been given a written statement by a midwife that includes: ■■ a statement that appropriate PII arrangements will not be in force in relation to the midwife’s practice of private midwifery in attending a homebirth, and ■■ any other information required by the Board. 2. The Board requires that all midwives practise according to the following: ■■ Code of Professional Conduct for Midwives in Australia ■■ Code of Ethics for Midwives in Australia and the National Competency Standards for the Midwife. Midwives should contact the QNMU for advice on this insurance and other insurance options.

Continuing professional development registration standard The National Law requires health practitioners to engage in continuing professional development. It also requires the

NMBA to develop a continuing professional development registration standard. The NMBAâ&#x20AC;&#x2122;s continuing professional development (CPD) registration standard requires nurses and midwives to participate in at least 20 hours of continuing professional development per year for each division of nursing and if registered as a midwife. This means that if you concurrent registration as a RN and an EN, you must complete 20 hours of CPD relevant to both Divisions. If you have dual registration as a nurse and midwife, you must also complete 20 hours of CPD for each registration type. CPD activities which are relevant to both nursing and midwifery professions may be counted in each portfolio of professional development. This means that a person registered on both registers can satisfy the registration standard

by completing only 20 hours of CPD per year, provided that the 20 hours is relevant to both professions. Registered nurses and midwives who hold Scheduled Medicine Endorsements while endorsed as Nurse Practitioners must complete at least ten hours of education per year specifically related to their endorsement. One hour of active learning equates to one hour of CPD. Nurses and midwives are encouraged to review this registration standard in detail and seek advice from the QNMU if they have any questions in relation to whether the training that they are undertaking satisfies the registration standards.

Recency of practice registration standard The National Law requires that nurses and midwives must have undertaken sufficient practice to demonstrate competence within NURSES AND THE LAW 5th EDITION 29

National registration of nurses and midwives

the previous five year period. Sufficient practice can be proved by the following: a. practising within the profession within the past five years for a period equivalent to a minimum of three months full time b. successful completion of a program or assessment approved by the NMBA c. successful completion of a supervised practice experience approved by the NMBA. This standard has caused some problems for nurses and midwives returning to the profession after taking time out to have children. The problem is exacerbated in Queensland by the shortage of accredited re-entry courses. Part 7 of the National Law does provide for the NMBA to grant various types of conditional registration which theoretically could be used by the NMBA to assist nurses and midwives to return to practice. Nurses or midwives who require further advice in relation to whether they satisfy the recency of practice registration standard should contact the QNMU.

Nurse Practitioner registration standard As an applicant seeking endorsement as a Nurse Practitioner, the applicant must be able to demonstrate: ■■ general registration as a nurse with no conditions relating to unsatisfactory professional performance or unprofessional conduct ■■ the required amount of experience in advanced nursing practice, the equivalent 30 NURSES AND THE LAW 5th EDITION

three (3) years full time experience in advanced practice nursing role within the past six (6) years from the receipt date of application with the NMBA ■■ a qualification at a Masters degree level, or education equivalent as determined by the NMBA and approved under section 49 of the National Law, which is included in the NMBA approved list of programs of study for endorsement as a nurse practitioner ■■ compliance with the NMBA’s National Competency Standards for the Nurse Practitioner ■■ compliance with the NMBA’s registration standard on continuing professional development.

Registration standard for endorsement for scheduled medicines for midwives The scope of this endorsement under section 94 of the National Law applies to a class of midwives, but not all midwives. The Registered Midwife Endorsed is qualified to prescribe schedule 2, 3, 4 and 8 medicines. To be eligible for endorsement for scheduled medicines under section 94 of the National Law, applicants must be able to demonstrate they meet all the following requirements: ■■ current Registered Midwife in Australia with no restrictions to practice ■■ the equivalent of three (3) years full time initial registration experience as a midwife ■■ evidence of current competence to provide pregnancy, labour, birth and post natal care, through professional practice review ■■ successful completion of an approved professional practice review program for

midwives working across the continuum of midwifery care ■■ 10 additional hours per year of continuing professional development relating to context of practice, prescribing and administration of medicines, diagnostic investigations, consultation and referral ■■ successful completion of an approved qualification to prescribe scheduled medicines required for practice across that continuum of midwifery care in accordance with relevant State and Territory legislation.

Registration standard for endorsement for schedules medicines registered nurses (rural and isolated practice) This standard sets out the qualifications and other requirements that must be met by an applicant and endorsed registered nurse, under section 94 of the National Law, to be qualified to obtain, supply and administer scheduled 2, 3, 4, and 8 medicines for nursing practice in a rural and isolated practice area within the meaning of the current poisons standard under the Therapeutic Goods Act

1989 (Cwlth), s.52D, to the extent required to practice nursing in a particular area described and listed under the relevant Drug Therapy Protocol, Chief Health Officer standing order or health service permit that must be compliant with Queensland legislation. Please note, the Health Drugs and Poisons Bill is currently under review and it is expected the legislative requirements will change after this book is published. The eligible qualifications for endorsement for scheduled medicines, are under an NMBA approved program of study published on their website. Following endorsement the registered nurse is expected to comply with any guidelines on obtaining, supplying and administering scheduled medicines, as issued by the NMBA and published in accordance with s.39 of the National Law on the NMBA website. This endorsement also requires 10 additional hours of CPD relating to obtaining, supplying and administration of scheduled medicines.

The eligible qualifications for endorsement for scheduled medicines, are under an NMBA approved program of study published on their website.

NURSES AND THE LAW 5th EDITION 31

National registration of nurses and midwives

Scheduled medicines endorsed midwife registration standard An applicant seeking to be identified as scheduled medicines endorsed midwife under s. 38(2) of the National Law must be able to meet all the requirements of the NMBA including: ■■ current registration as a midwife in Australia ■■ the equivalent of three (3) years full-time post-registration experience as a midwife and evidence of current competence to provide pregnancy, labour, birth and postnatal care through professional practice review ■■ approved qualification, or the ability to gain such a qualification within an 18 month period to acquire the skills required to prescribe scheduled medicines required for practice across the continuum of midwifery care. For example: ◆◆ an Australian Nursing and Midwifery Accreditation Council (ANMAC) accredited and NMBA approved study program to develop midwives’ knowledge and skills in prescribing medicines or, ◆◆ an substantially equivalent program. A scheduled medicines endorsed midwife is required: ■■ to undertake an additional 10 hours of specified continuing professional development (CPD) a year relating to context of practice, prescribing and administration of medicines, diagnostic investigations, consultation and referral, in addition to the 20 hours of CPD for general registration as a midwife. 32 NURSES AND THE LAW 5th EDITION

■■ complete a NMBA midwifery professional practice program every three years across the continuum of midwifery care to demonstrate continuing competence in the provision of pregnancy, labour, birth and postnatal care to women and their infants.

Endorsements Another change brought about by the National Registration and Accreditation Scheme is the consolidation of nursing and midwifery endorsements. There was a substantial change in relation to endorsements that previously existed in Queensland and were recognised by the QNC. Endorsements in relation to sexual health, mental health and immunisation are no longer recognised as individual endorsements which can be recorded on the Register. The Ministerial Council has approved three endorsements under the National Law. These endorsements are: 1. endorsement for Nurse Practitioners 2. endorsement for scheduled medicines RNs 3. endorsement for scheduled medicines for midwives. Nurses who previously held a Rural and Remote Area Practice endorsements were granted a scheduled medicines endorsement. Prior to the National Law, enrolled nurses who were qualified to administer medicines were know as Endorsed ENs. These ENs are now known as Enrolled Nurses on the Division 2 Register as they are no longer endorsed under the National Law. Enrolled nurses without a medication qualification will have a notation on the Register of Practitioners that they do not

hold a NMBA approved qualification in administering medicines. In Queensland, under changes to the Health (Drugs and Poisons) Regulation 1996, endorsed nurses who held immunisation program and sexual health endorsements that were recognised with the Queensland Nursing Council or who have obtained a qualification approved by the chief executive, are authorised to continue to possess and supply medications under an approved drug therapy protocol (DTP). This authorisation is conditional on the requirement that they supply evidence of completing an approved course. Queensland Health has stated that courses previously accredited by the QNC are recognised as approved courses. Nurses and midwives who require further advice in relation to these endorsements should review the endorsement registration standards on the NMBA’s website at www.nursingmidwiferyboard.gov.au or contact the QNMU.

Conduct, competency, health and disciplinary matters Under s.3(2)(a) of the National Law, one of the National Law’s objectives is to provide for the protection of the public by ensuring that only nurses and midwives who are suitably trained and qualified to practise in a competent and ethical manner are registered. This objective forms the basis for the powers provided to the NMBA to take action against nurses and midwives in relation to notifications.

The objects of the National Law are also relevant to the NMBA’s use of competency, health and conduct action powers under the National Law. Firstly, it is a ‘guiding principle’ under s.3(3) (a) that the National Law must operate in a transparent, accountable, efficient, effective and fair way. Secondly, s.3(3)(c) provides that any restrictions on the practice of a nurse or midwife, or student nurse or midwife, are to be imposed under the scheme only if it is necessary to ensure health services are provided safely and are of an appropriate quality. These objectives govern the NMBA’s use of the powers provided to it under Part 8 of the National Law in relation to health, performance and conduct. As discussed earlier one of the major changes brought about by the national registration process has been the registration of students. Students are also liable to be subjected to conduct and health processes by the NMBA in a limited number of circumstances. For more information see Chapter 5: Mandatory reporting.

Mandatory reporting As discussed in Chapter 5: Mandatory reporting, the National Law places an obligation upon health practitioners, employers and education institutions to mandatorily notify AHPRA in relation to certain conduct, performance and health issues relating to nurses, midwives and students. These notifications form the basis of the powers of the NMBA to take action in relation NURSES AND THE LAW 5th EDITION 33

National registration of nurses and midwives

to health, performance and conduct issues concerning nurses and midwives. Notifications can also be made on a voluntary basis. Section 144(1) of the National Law sets out the basis upon which voluntary notifications can be made against nurses, midwives and students. Mandatory or voluntary notifications made pursuant to the National Law are now made as a complaint to the Health Ombudsman. The Health Ombudsman Act 2013 (Qld) varies how Part 8 of the National Law provides for the disciplinary arrangements for nurses and midwives. What powers the Health Ombudsman has and how they may be exercised, is outlined at the end of this chapter. It has been QNMU’s experience that the Health Ombudsman manages all serious allegations against Queensland nurses — namely, matters that indicate a nurse has engaged in professional misconduct or where a ground may exist for the suspension or cancellation of a nurse’s registration. Matters relating to performance (competence) and health impairment are usually referred to AHPRA by the Health Ombudsman.

Given that the NMBA, together with AHPRA, continue to deal with other disciplinary matters under the National Law, it is relevant to outline the powers available under the National Law as follows. The process Mandatory and voluntary notifications are made to the Health Ombudsman either verbally or in writing as a complaint. These notifications or complaints must include particulars of the basis upon which the mandatory or voluntary notification is made. If a health service complaint is referred by the Health Ombudsman to the NMBA, AHPRA must, within 60 days after receipt, conduct a preliminary assessment of the referred matter and decide whether it relates to a nurse or midwife or student and whether the referred matter relates to a matter that is a ground for notification (the grounds for notification are discussed in Chapter 5). Section 151 of the National Law provides that the NMBA may decide to take no further action in relation to the referred matter if it reasonably believes: ■■ the complaint is frivolous, vexatious, misconceived or lacking in substance

The National Law in Queensland contains a partial exemption to making a mandatory notification.

■■ too long a period of time has lapsed to make an investigation practicable

If you are providing a health service to a health practitioner who may have engaged in notifiable conduct, you are NOT required to make a complaint or notification if you believe the conduct relates to an impairment that will not place the public at substantial risk of harm and is not professional misconduct.

■■ the NMBA has already dealt with the subject matter of the complaint, or

34 NURSES AND THE LAW 5th EDITION

■■ that, given the person is no longer registered, it is not in the public interest to deal with the complaint

■■ the complaint has been dealt with adequately by another entity.

Upon receiving a referred matter the NMBA must notify the nurse, midwife or student concerned as soon as practicable.

was improperly obtained and the nurse, midwife or student’s registration has been cancelled or suspended under the law of

The NMBA must notify the Health Ombudsman as soon as practicable if the NMBA forms a reasonable belief that a nurse or midwife has behaved in a way that constitutes professional misconduct or that there is another ground for the suspension or cancellation of a nurse or midwife’s registration.

another jurisdiction.

Immediate action The National Law provides that the NMBA may, in certain circumstances, take immediate action following receipt of a referred complaint. Immediate action is defined in s.155 to include suspension, imposition of a condition, accepting an undertaking or accepting the surrender of the nurse, midwife or student’s registration. The NMBA’s power to take immediate action arises when the NMBA reasonably believes that the nurse or midwife’s conduct, performance or health poses a serious risk to people and immediate action is necessary to protect public health and safety. In relation to students, the NMBA may take immediate action if it reasonably believes that the student poses a serious risk to people because they’ve been charged with an offence punishable by 12 months imprisonment or more, they have an impairment or they have contravened a condition on their registration or undertaking, and such immediate action is necessary to protect public health or safety. Another basis for the NMBA to take immediate action is where evidence exists to suggest that a nurse or midwife’s registration

Right to make submission Section 157 of the National Law provides that immediate action cannot be taken unless the NMBA provides details of the complaint to the nurse, midwife or student. This ‘show cause’ process allows nurses, midwives and students an opportunity to provide submissions in relation to the notification to the NMBA before it makes its decision. The period afforded to nurses and midwives in this situation is often very brief and may depend on how serious the NMBA considers the allegations to be. Often only 48 hours are provided for a nurse or midwife to respond to a proposal by the NMBA to take immediate action. If the NMBA determines to take immediate action following the consideration of any submissions from the nurse, midwife or student, they must give notification of their decision to the nurse, midwife or student and take any further action prescribed under the National Law in relation to the complaint.

The National Law provides that the NMBA may, in certain circumstances, take immediate action following receipt of a referred complaint. NURSES AND THE LAW 5th EDITION 35

National registration of nurses and midwives

Health and performance assessments

Action by the Nursing and Midwifery Board of Australia

The National Law provides the NMBA with powers, not only in relation to health issues but also in relation to performance matters.

Section 178 of the National Law outlines the circumstances in which the NMBA may take action in relation to a health, competency or conduct matter against a nurse, midwife or student.

This includes, directing a nurse or midwife to undertake an independent medical assessment in circumstances where it believes that the nurse or midwife’s ability to discharge their duties is impaired by a mental or physical condition. Section 169 of the National Law provides that where the NMBA reasonably believes that a nurse, midwife or student has or may have an impairment they can require that person to undergo a health assessment. Section 170 provides a similar power where the NMBA reasonably believes that a nurse or midwife may be practising the profession in a way that is unsatisfactory. Students cannot be directed to undertake a performance assessment. A copy of the report must be given to the nurse, midwife or student, aside from health assessments where to do so may be prejudicial to the nurse, midwife or student’s physical or mental health or wellbeing. In these circumstances the report will be given to the nurse, midwife or student’s treating medical practitioner, who cannot release a copy of the report until such time as the potential detrimental impact upon the health of the person ceases to exist. Upon receiving the assessor’s report, the NMBA may decide to take further action under the National Law, refer the matter to another entity such as the Health Ombudsman or take no further action. 36 NURSES AND THE LAW 5th EDITION

The grounds upon which the NMBA may take action are: a. if the nurse or midwife’s practice or professional conduct may be unsatisfactory, or b. the nurse, midwife or student has or may have an impairment, or c. a student has been charged with an offence that is punishable by 12 months imprisonment or more, or d. a student has contravened a condition of registration or an undertaking given to the NMBA. The reference to ‘reasonably believes’ in section 178 imports the civil standard of proof; that is the NMBA must be satisfied, on the balance of probabilities, that the nurses of midwife has engaged in the conduct alleged. In the absence of evidence sufficient for the NMBA to be reasonably satisfied, the NMBA should determine to take no further action in respect of the complaint under s.151. The action that the NMBA may take in relation to a complaint is as follows: a. caution the nurse, midwife or student b. accept an undertaking from the nurse, midwife or student c. impose conditions on the nurse, midwife or student’s registration, for example further

training, or requiring the practitioner to do or refrain from doing something in connection with their practice d. refer the matter to another entity such as the Health Ombudsman.

Right to make a submission The NMBA cannot take any action in relation to a complaint unless a show cause process occurs. Section 179 of the National Law provides that if the NMBA proposes to take action against a nurse, midwife or student, the NMBA must give the nurse, midwife or student written notice of the proposed action and allow the nurse, midwife or student to provide a written submission to the NMBA about the proposed action. After considering the nurse, midwife or studentâ&#x20AC;&#x2122;s submission, the NMBA can either take no further action or take the proposed action.

The NMBA must give written notice of the decision to the nurse, midwife or student and, if the decision arose as a result of a complaint, the complainant (s.180).

Panels Perhaps one of the most significant, yet so far rarely used, changes brought about by the National Law is the creation of Health Panels and Performance and Professional Standards Panels.

Health Panels A Health Panel can be established if the NMBA reasonably believes that a nurse, midwife or student has an impairment and the NMBA decides it is necessary or appropriate for the matter to be referred to a panel (s.180[1][b]). The NMBA has not published guidelines related to the circumstances in which the NMBA may deem it necessary or appropriate for a matter to be referred to the Panel.

NURSES AND THE LAW 5th EDITION 37

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The National Law does not provide significant guidance in relation to when National Boards should use a Health Panel or Performance and Professional Standards Panel in the legislation. The Health Panel must consist of at least one member who is a nurse or midwife, one member who is a medical practitioner with expertise relevant to the alleged impairment, and at least one member who is not and has never been a nurse or midwife.

Performance and Professional Standards Panels The NMBA can also establish a Performance and Professional Standards Panel if it reasonably believes that a nurse or midwife’s professional conduct, or the way they practise their profession, is or may be unsatisfactory, and the NMBA decides it is necessary or appropriate for the matter to be referred to a panel (s.182[1]). Again, no guidance is provided by the legislation in relation to when it is necessary or appropriate for the NMBA to establish a panel, nor have any guidelines providing assistance in interpretation of this section been issued by AHPRA, or the NMBA. In the QNMU’s view, panels would most likely be used when the credibility of witnesses or evidence is contested. Once the NMBA determines to establish a panel, the panel then runs independently from the NMBA. A Performance and Professional Standards Panel must consist of at least three members. At least half, but not more than two thirds, of the members of the panel must be nurses and midwives. At least one member of the panel must be a community representative. In the QNMU’s 38 NURSES AND THE LAW 5th EDITION

view the panels appear to be quasi-courts designed to deal with performance and professional standard matters which are likely to be too complex for the NMBA to make a decision solely on the basis of a complaint and submissions from the person subject of the complaint; and problem matters where there is a degree of dispute in relation to the subject matter of a complaint. This view is reinforced by the fact that the panels have hearings at which the person subject to the complaint can appear and, in some circumstances, be legally represented. When a matter is referred to the panel, the panel must give notice of its hearing of the matter to the nurse, midwife or student who is the subject of the hearing. This notice must specify: ■■ the date, time and place of the hearing ■■ the nature of the hearing and the matters to be considered ■■ that the nurse, midwife or student is required to attend the hearing ■■ that the nurse, midwife or student may be accompanied by a lawyer or another person ■■ that if they fail to attend, the hearing may continue and the panel will make a decision in their absence. The panel is also required to advise the nurse, midwife or student of the possible decisions they may make at the conclusion of the hearing.

Legal representation Section 186 provides that a nurse, midwife or student who is the subject of the hearing may be ‘accompanied’ by a lawyer or ‘another person’ such as a QNMU representative, family member, or other support person.

Section 186(2) of the National Law provides that a lawyer may appear on behalf of the nurse, midwife or student only with leave of the panel. Leave may be granted only if the panel considers it appropriate in the particular circumstances of the hearing. This particular provision is similar to provisions in relation to legal representation in industrial commissions and other tribunals. Generally, in such tribunals, leave will be granted in circumstances where the complexity of the matter, both factually and in relation to legal principles that will be considered by the panel, are such that the assistance of a lawyer representing the person subject of the hearing is desirable. If the panel is convened as a result of a notification made to AHPRA and referred the NMBA, the notifier is able to make submissions to the panel about the matter. The panel is required by s.185(2) of the National Law to observe the principles of natural justice and is not bound by the formal legal rules of evidence. This is similar to many quasi-courts in Australia, such as industrial commissions, however it is the experience of the QNMU that, although the strict rules of evidence that may exist in a civil court are not necessarily followed by such tribunals, generally significant principles of the rules of evidence are complied with.

b. the panel reasonably believes the evidence demonstrates professional misconduct or that the nurse or midwife’s registration may have been improperly obtained.

Decisions of the panel Section 191 of the National Law provides that after hearing a matter about a nurse or midwife a panel may decide to take no further action or make the following findings that the: a. nurse or midwife’s behaviour constitutes unsatisfactory professional performance b. nurse or midwife’s behaviour constitutes unprofessional conduct c. nurse or midwife has an impairment d. matter be referred to the responsible tribunal e. matter be referred to another health complaints entity for investigation. If a student is the subject of a Health Panel the panel may decide that the student has an impairment, that the matter be referred to a health complaints entity, or that the student has no case to answer and that no further action is to be taken in relation to the matter. In relation to decisions that a nurse, midwife or student has an impairment, or that the nurse or midwife has behaved in a way that constitutes unsatisfactory professional performance or unprofessional conduct, the panel can take the following actions:

A hearing before a panel is not open to the public (s.189).

a. impose conditions on the nurse, midwife or student’s registration

A panel must stop hearing a matter and require the NMBA to refer a matter to the QCAT if:

b. for a Health Panel, suspend the nurse, midwife or student’s registration

a. the nurse, midwife or student request the matter be referred to the QCAT

c. for a Performance and Professional Standards Panel, caution or reprimand the nurse or midwife. NURSES AND THE LAW 5th EDITION 39

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Following making their determination, the panel must give notice of its decision to the NMBA. The NMBA must give written notice of the decision to the nurse, midwife or student and, where relevant, the notifier within 30 days of receiving this decision (s.192).

QCAT disciplinary action In Craig v Medical Board of South Australia (2001) 79 SASR 545 the South Australian Court of Appeal succinctly stated the purposes of disciplinary proceedings in respect of professional discipline: The purpose of disciplinary proceedings is to protect the public, not to punish the practitioner in the sense in which punishment is administered pursuant to the criminal law. A disciplinary tribunal protects the public by making orders which will prevent persons who are unfit to practice from practising, or by making an order which will secure the maintenance of proper professional standards. As noted above, the office of the Health Ombudsman will manage all serious allegations against Queensland nurses and midwives. The Health Ombudsman will have the power to refer a health service complaint about a nurse or midwife to the Director of Proceedings who will then decide whether to refer the complaint to the Queensland Civil and Administrative Tribunal (QCAT). The role of the Director of Proceedings is outlined in the Health Ombudsman section later in this chapter. Nonetheless, in determining whether to refer a complaint to QCAT, the Director must have regard to, among other things, the seriousness of the 40 NURSES AND THE LAW 5th EDITION

matter and the likelihood of proving relevant matters before QCAT. Additionally, the Director must refer a matter to QCAT if it is a matter, that under the National Law, would require the Health Ombudsman to refer to QCAT. Those circumstances include: a. where a nurse or midwife has engaged in behaviour which the NMBA reasonably believes may constitute professional misconduct, or b. where the NMBA reasonably believes that the nurse or midwifeâ&#x20AC;&#x2122;s registration was improperly obtained. The NMBA must also refer matters to QCAT as directed by a panel established by the NMBA. The National Law provides definitions for unsatisfactory professional performance, unprofessional conduct, and professional misconduct. These definitions are an attempt to consolidate the many and varied terms and phrases that previously existed under the numerous regulatory regimes. Professional misconduct is defined in the National Law as being: a. unprofessional conduct that amounts to conduct substantially below the standard reasonably expected of a nurse or midwife of an equivalent level of training or experience b. more than one instance of unprofessional conduct c. conduct of the nurse or midwife, whether occurring in connection with their practice or not, that is inconsistent with the nurse

or midwife being a fit and proper person to hold registration. The National Law defines unprofessional conduct as being conduct of a lesser standard than might reasonably be expected of the nurse or midwife by the public or the practitioner’s professional peers. Unprofessional conduct includes such things as:

Unsatisfactory professional performance is defined by the National Law as being where the knowledge, skill or judgement possessed, or the care exercised by the nurse or midwife in the practise of their profession is below the standard reasonably expected of a nurse or midwife of an equivalent level of training or experience.

a. a contravention by the nurse or midwife of the National Law

It is only professional misconduct which is referred to QCAT for disciplinary proceedings.

b. a contravention of a conditional undertaking

The QCAT was established under the Queensland Civil and Administrative Tribunal Act 2009. Prior to this the Queensland Nursing Tribunal had carriage of nursing disciplinary matters under the Nursing Act 1992.

c. the conviction of a nurse or midwife of an offence under another Act which may affect the nurse or midwife’s suitability to continue to practise d. providing a person with health services that are excessive, unnecessary or otherwise not reasonably required for the person’s wellbeing e. attempting to influence another registered health practitioner in a way that compromises patient care f. accepting a benefit as inducement, consideration or reward for referring a person to a health service provider or recommending they use or consult with a health service provider g. offering another person a benefit, consideration or reward in return for that person referring people to the practitioner or recommencing that people use their service h. referring or recommending someone use or consult a health service provider if the nurse or midwife has a pecuniary interest in giving the referral or recommendation and in circumstances where they don’t disclose the pecuniary interest.

It was also the tribunal which, prior to 1 July 2010, had carriage for most disciplinary matters relating to health professions in Queensland. Although QCAT is less formal than civil courts such as the Supreme or District Court, it still uses many procedures and formalities found in civil courts. The QNMU will, in most cases, provide representation to nurse, midwife and student financial members who are the subject of NMBA referrals to QCAT. Parties to proceedings in relation to matters referred to the QCAT are the nurse, midwife or student as the respondent to the proceedings and the NMBA as the referrer, or applicant, of charges preferred against the nurse or midwife to QCAT. The procedures and rules applicable in QCAT are found within the QCAT Act, the Queensland Civil and Administrative Tribunal Rules 2009 and practice directions issued by QCAT. NURSES AND THE LAW 5th EDITION 41

National registration of nurses and midwives

Therefore nurses and midwives may be required to draft legal submissions, call witnesses and cross examine witnesses called by the NMBA.

■■ impose a fine of not more than $30,000 to be paid to the NMBA

Nurses, midwives and students are strongly advised to seek advice from the QNMU if they ever become subject to proceedings in QCAT.

If the QCAT determines to cancel the nurse or midwife’s registration, QCAT can disqualify the nurse or midwife from applying for registration of a specified period and prohibit the person from using a specified title or providing a specified health service.

A significant change in the way in which disciplinary action is dealt with under the National Law is that QCAT can award costs against parties in proceedings brought under the National Law. Under previous state nursing laws costs could either not be awarded in such proceedings, were capped to a specific maximum amount or could only be ordered in very limited circumstances. Following a hearing, QCAT can decide that the nurse or midwife has no case to answer and that no further action should be taken against them or make one or more of the following decisions that the nurse or midwife has: ■■ engaged in unsatisfactory professional performance ■■ engaged in behaviour that constitutes unprofessional conduct ■■ behaved in a way that constitutes professional misconduct ■■ an impairment ■■ obtained registration improperly. In relation to these decisions QCAT can determine to impose the following sanctions on the nurse or midwife: ■■ caution or reprimand ■■ impose conditions on the nurse or midwife’s registration 42 NURSES AND THE LAW 5th EDITION

■■ suspend the nurse or midwife’s registration ■■ cancel the nurse or midwife’s registration.

Decisions regarding students After hearing a matter in relation to a student QCAT may decide that the student has an impairment or that the student has no case to answer and that no further action should be taken. If QCAT decides that the student has an impairment, QCAT can determine to impose a condition on the student’s registration or suspend the student’s registration.

Appeals Section 199 of the National Law gives nurses and midwives the right to appeal against certain decisions of the NMBA, Health Panels and Performance and Professional Standards Panels. Appeals against decisions from these bodies are to QCAT. If the appeal is successful, the decision of the NMBA or panel will be set aside; that is, have no effect. In very limited circumstances QCAT may grant a ‘stay’ of the NMBA or panel decision pending hearing the appeal. Nurses and midwives should seek advice from the QNMU in relation to whether they are able to appeal decisions of the NMBA or panels which they disagree with.

The Queensland Health Ombudsman

and midwives, and inadequate responses to these allegations.

The office of the Health Ombudsman heralds a new era in health service complaints management in Queensland.

Further, that there are confused roles between the existing health complaints management entities, and inadequate transparency and accountability in the health complaints management system.

The following section of the chapter summarises the functions, powers and responsibilities the Act bestows upon the Health Ombudsman and outlines the process of the new health service complaints regime.

Background The explanatory notes to the Health Ombudsman Bill 2013 (the “Bill”) state that inquiries, and media reports in relation to certain health practitioners, highlighted fundamental deficiencies in the way the Queensland public is protected by the existing health complaints management system. The explanatory notes contend that the existing system has resulted in unjustified delays in dealing with serious allegations against health practitioners, including nurses

Objectives The main objects of the Act are: 1. “to protect the health and safety of the public 2. to promote: a. professional, safe and competent practice by health practitioners; and b. high standards of service delivery by health service organisations; and 3. to maintain public confidence in the management of complaints and other matters relating to the provision of health services”. The main principle for administering the Act is that the health and safety of the public is paramount.

The office of the Health Ombudsman heralds a new era in health service complaints management in Queensland. NURSES AND THE LAW 5th EDITION 43

National registration of nurses and midwives

Achievement of objectives The Act creates the new statutory position of Health Ombudsman which abolishes the Health Quality and Complaints Commission (the “HQCC”) and changes the way in which notifications and complaints against all nurses are to be dealt with in Queensland. The Health Ombudsman is tasked with delivering a transparent, accountable and fair system for effectively and expeditiously dealing with complaints and other matters related to the provision of health services. The Act does not amend the Health Practitioner Regulation National Law Act 2009 (“National Law”), which is adopted by reference to a number of other jurisdictions, but modifies how the National Law applies in Queensland. Queensland becomes what is referred to as a “co-regulatory” jurisdiction, somewhat similar to the position of New South Wales with regard to health practitioner notification matters. The functions of the Australian Health Practitioner Regulation Agency (AHPRA) and the Nursing and Midwifery Board of Australia (NMBA) in relation to Queensland nurses’ registration will remain the same. However, there are changes to the way complaints against nurses are received and administered. The Act amends the National Law so that Queensland is a co-regulatory jurisdiction for the purposes of the National Law. As stated, this will not affect the national registration of nurses or midwives, but enables Queensland to vary how Part 8 of the National Law provides for the disciplinary arrangements for nurses and midwives. 44 NURSES AND THE LAW 5th EDITION

All health service complaints are now received by the Health Ombudsman. The Health Ombudsman’s role is to manage all serious allegations against Queensland nurses—namely, matters that indicate a nurse has engaged in professional misconduct or where a ground may exist for the suspension or cancellation of a nurse’s registration. The NMBA will deal with any disciplinary matters under the National Law that are referred to it by the Health Ombudsman.

Health service complaints Health service is broadly defined by the Act as: “a service that is, or purports to be, a service for maintaining, improving, restoring or managing people’s health and wellbeing”, and includes a support service for a health service (eg patient transport). A health service can be provided at any place and includes alternative and complementary medicine (s.7). It follows that any complaint about a health service is intended to be managed by the Health Ombudsman. Additionally, mandatory or voluntary notifications made pursuant to the National Law are treated as if the notification was a complaint to the Health Ombudsman.

Expansion to cover unregistered health practitioners The Act also covers health service providers. A health service provider is: a. a health practitioner under the National Law (eg practitioners already required to be registered — RN, EN, Midwife) or b. another individual who provides a health service or

c. an entity who provides a health service (health service organisation) (s.8). This means the Act will capture Assistants in Nursing or any other individual who provides a health service such as Personal Carers and wards persons. The Health Ombudsman will refer to the National Code of Conduct for Unregistered Health Workers when determining if such workers have engaged in unsatisfactory conduct. In the event any member, whether registered or unregistered, receives a show cause notice from the Health Ombudsman, it is strongly advised that they contact the QNMU immediately. This is because the Act has strict timelines that must be observed and extensions of time will not be granted.

Functions and powers The Health Ombudsman’s functions include: ■■ to receive health service complaints and take relevant action to deal with them under the Act ■■ to identify and deal with health service issues by undertaking investigations, inquiries and other relevant action ■■ to identify and report on systemic issues in the way health services are provided, including issues affecting the quality of health services ■■ to monitor the national board’s and national agency’s performance of their functions relating to the health, conduct and performance of health practitioners who provide health services in Queensland

■■ to provide information to the public, health practitioners and health service organisations about: ◆◆ providing health services in a way that minimises health service complaints ◆◆ resolving health service complaints. (s.25) The Health Ombudsman has power to do all things that are necessary or convenient to be done for or in connection with the performance of the Health Ombudsman’s functions. (s.26) In performing the Health Ombudsman’s functions, the Health Ombudsman is required to act independently, impartially and in the public interest. (s.26). The powers of the Health Ombudsman were increased recently following the passage of legislation through the Queensland Parliament. The QNMU opposed many of these expansions of power through submissions and presentations to the Parliamentary Committee prior to the passing of the amending Bill. As a result of the amendments, the Health Ombudsman’s powers to take immediate action were broadened and the definition of what a ‘health service’ is remains unclear.

Dealing with complaints Any person can make a complaint about a nurse. Examples of persons who may make a complaint about a nurse include: an individual to whom a health service was provided; a parent, guardian or other representative of an individual to whom a health service was provided; or a health practitioner with NURSES AND THE LAW 5th EDITION 45

National registration of nurses and midwives

concerns about the health, conduct or performance of the nurse. (s.32) The complaint is initially assessed by the Office of the Health Ombudsman in the same way for both registered and unregistered practitioners. The Health Ombudsman must decide within seven (7) days to accept a complaint and take relevant action, or decide to take no further action in respect of a complaint. Irrespective of what the Health Ombudsman decides, written notice of the decision is to be provided to both the complainant and the nurse within seven days of receiving the notification. At any time, the Health Ombudsman may decide to take no further action in relation to a health service complaint about a nurse if the Health Ombudsman reasonably considers the complaint: ■■ is frivolous, vexatious, trivial or not made in good faith ■■ is misconceived or lacking in substance ■■ is being adequately dealt with by another appropriate entity ■■ has been resolved or otherwise appropriately finalised by the Health Ombudsman or another appropriate entity, or ■■ despite reasonable efforts by the Health Ombudsman or another appropriate entity, cannot be resolved (s.44). Once the Health Ombudsman accepts a complaint, there are a number of relevant actions that may be taken for dealing with the complaint. These include: 1. assessment of the complaint 46 NURSES AND THE LAW 5th EDITION

2. local resolution 3. immediate registration action 4. investigate the subject matter 5. refer the complaint to AHPRA or an entity of the State or Commonwealth 6. refer the complaint to the Director of Proceedings 7. conciliation, or 8. conduct an inquiry into the subject matter of the complaint. A brief synopsis of each relevant action is set out below. For detailed information nurses should refer to the Act or seek advice from the QNMU. 1. Assessment of the complaint The purpose of the Health Ombudsman undertaking an assessment of a health service complaint is to gather and analyse information and then decide the most appropriate way of dealing with the complaint (s.46). Nonetheless, there is no requirement for the Health Ombudsman to assess a complaint before taking relevant action. If the Health Ombudsman assesses a complaint, the assessment is to be completed within 30 days, save for situations where a further 30 day extension may be granted due to the size or complexity of the matter or because of the time taken to obtain a submission from either the complainant or the health service provider. Submissions from either the complainant or the health service provider are to be provided within the stated period, that is, within fourteen days.

2. Local resolution The purpose of local resolution is to facilitate resolution between the complainant and the health service provider as quickly as possible and with minimal intervention by the Health Ombudsman. The Health Ombudsman is only able to facilitate a local resolution of a health service complaint in the following circumstances if: a. the complaint relates to the provision of a health service to the complainant b. the complainant has made a complaint on behalf of his or her child or someone for whom the complainant is a guardian under the Guardianship and Administration Act 2000 (Qld)

a nurse if, amongst other things, the Health Ombudsman reasonably believes that because of the nurseâ&#x20AC;&#x2122;s health, conduct or performance, the nurse poses a serious risk to persons or it is necessary to take action to protect public health and safety. The Act also provides that the Health Ombudsman may take immediate registration action against a nurse at any time, even if a health service complaint has not been made against the nurse. As under the National Law, if the Health Ombudsman proposes to take immediate registration action against the registration of a nurse of midwife, the Health Ombudsman must comply with the show cause process.

c. the complaint relates to a health service provided to someone who is deceased and the complainant is a member of the deceasedâ&#x20AC;&#x2122;s family or

That is, the Health Ombudsman must give the nurse a notice stating the proposed action and invite the nurse to make a submission within a stated period of at least seven (7) days.

d. a complaint is made on behalf of a recipient of a health service who has asked the complainant to make a complaint on their behalf (s.38(2)).

In the event a nurse is issued with a notice from the Health Ombudsman, the nurse should contact the QNMU for advice immediately.

3. Immediate registration action Part 7 of the Act gives the Health Ombudsman power to take immediate registration action and to issue interim prohibition orders against Queensland nurses and midwives. a. Immediate registration action Pursuant to the Act, immediate registration action in relation to a nurse means the suspension of, or imposition of a condition on, the nurseâ&#x20AC;&#x2122;s registration. The Health Ombudsman has power to take immediate registration action against

The Health Ombudsman has power to take immediate registration action against a nurse... NURSES AND THE LAW 5th EDITION 47

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b. Interim prohibition orders For unregistered practitioners, there’s the possibility of new forms of action that may be taken against them which are currently not available. The Ombudsman can issue “interim prohibition orders”. A prohibition order or an interim prohibition order is an order that can be issued to an unregistered health practitioner worker:

competence or professional affiliations (s.68). The Ombudsman will also be able to commence action against unregistered practitioners in QCAT. QCAT can make prohibition orders (s.113) — with similar effect to interim prohibition orders. Prohibition orders will be published (s.79).

■■ “prohibiting the practitioner from providing any health service or a stated health service” or

There is no mention in the legislation about of the length of prohibition orders; possibly they could be in effect indefinitely. Appeal may be to the Supreme Court.

■■ “imposing stated restrictions on the provision of any health service, or a stated health service, by the practitioner” (s.67, s.113).

Contravening a prohibition order or interim prohibition order has a maximum penalty of $22,000 (s.78).

In other words, this means stopping someone practicing, despite them not holding registration.

4. Investigate the subject matter

These orders can be issued if, because of the unregistered practitioner’s health, conduct or performance, they pose a serious risk to persons. The serious risk of harm can be things like: a. practising the practitioner’s profession unsafely, incompetently or while intoxicated by alcohol or drugs b. financially exploiting the person c. engaging in a sexual or improper personal relationship with the person d. discouraging the person from seeking clinically accepted care or treatment e. making false or misleading claims about the health benefits of a particular health service, or f. making false or misleading claims about the practitioner’s qualifications, training, 48 NURSES AND THE LAW 5th EDITION

If the Health Ombudsman considers that an investigation of a matter is relevant to achieving the objects of the Act, an investigation of the subject matter of the health service complaint may be undertaken. The Health Minister also has power to direct the Health Ombudsman to undertake an investigation. Investigations under Part 8 of the Act are to be completed within one (1) year of being commenced. Extensions of no more than three months may be granted in the event the investigation has not been completed. 5. Refer the complaint to AHPRA Referrals of health service complaints may be made by the Health Ombudsman to AHPRA or another entity of the State or Commonwealth. 6. Referral to QCAT QCAT has jurisdiction to review decisions by the Health Ombudsman to take immediate

registration action, issue an interim prohibition order. QCAT also has jurisdiction to hear matters referred to it by AHPRA and the office of the Health Ombudsman and to hear applications to change or remove conditions imposed on a nurse’s registration by QCAT. If the Health Ombudsman considers a complaint should be referred to QCAT, the complaint must first be referred to the Director of Proceedings. The Director is a lawyer within the Office of the Health Ombudsman who will determine whether a matter is to be referred to QCAT or back to the Health Ombudsman. In deciding whether a complaint ought to be referred to QCAT, the Director must have regard to the following: ■■ the paramount guiding principle ■■ the seriousness of the matter ■■ the likelihood of proving matters before QCAT ■■ the orders that the QCAT may make ■■ any other relevant matters. If a complaint is a matter that the Health Ombudsman is required to refer directly to QCAT pursuant to the National Law, then the Director must refer the matter to QCAT. 7. Conciliation Conciliation is a form of dispute resolution. The purpose of conciliating a health service complaint is to enable the complainant and the health service provider to settle a complaint in a reasonable way and, if necessary, enter an agreement to give effect to such settlement (s. 38(2)).

completed. That is, an investigation, immediate registration action, or a referral. It should be noted that if a nurse participates in conciliation, anything said or admitted during the conciliation, or any document prepared for, or in the course of the conciliation, is privileged. 8. Conduct an inquiry The Health Ombudsman may conduct an inquiry into any of the following if the Health Ombudsman considers it would be in the public interest to do so: ■■ a matter to which a health service complaint relates ■■ a systemic issue relating to the provision of a health service ■■ another matter that the Health Ombudsman considers is relevant to achieving an object of the Act.

Limitation of time Section 44 of the Act provides that the Health Ombudsman may elect not to take any action on a complaint if the subject matter of the complaint arose more than two (2) years earlier. Nonetheless, in the event the Ombudsman reasonably considers that the nurse, who is subject of the complaint, has acted in a manner that constitutes professional misconduct, or in the event another ground exists for the suspension or cancellation of the nurse’s registration, the time limitation does not apply.

The Act provides that conciliation cannot commence until other relevant action has been NURSES AND THE LAW 5th EDITION 49

Professional practice issues P

ursuant to the National Law, the NMBA develops policies, professional standards, guidelines, position statements, frameworks and fact sheets to provide guidance to the professions. These documents can be found on their website. They are often referred to by the Health Ombudsman, AHPRA and employers when determining what is professional practice and conduct.

Professional Standards A breach of any standard for the profession can result in action by the relevant regulator for unprofessional conduct or professional misconduct, depending upon the seriousness of the breach. It can also result in action by your employer.

Codes of Conduct for Midwives and Nurses There are two separate codes of conduct for midwives and nurses. Both the Code of Conduct for Midwives and the Code of Conduct for Nurses set out the legal requirements, professional behaviour and 50 NURSES AND THE LAW 5th EDITION

conduct expectations for all midwives and nurses, in all practice settings, in Australia. They describe the principles of professional behaviour that guide safe practice, and clearly outline the conduct expected of midwives by their colleagues and the broader community. Each code contains four domains, with each domain having profession-specific principles and values that set out the legal requirements, professional behaviour and conduct expectations for all midwives and nurses. The principles and values apply to all areas of practice, with an understanding that both professions will exercise professional judgement in applying them, with the goal of delivering the best possible outcomes. The four domains are: 1. Practise legally. 2. Practise safely, effectively and collaboratively. 3. Act with professional integrity. 4. Promote health and wellbeing.

Midwife and nurse members should review their respective code in its entirety on the NMBA website.

Codes of Ethics for Midwives and Nurses As with the Codes of conduct, there are separate codes of ethics for midwives and nurses. These are: ■■ The International Confederation of Midwives Code of Ethics for Midwives; and ■■ The International Council of Nurses Code of Ethics for Nurses. Both codes can be found on the NMBA website.

Standards for Practice The NMBA provides separate Standards for Practice for Enrolled Nurses, Registered Nurses, Nurse Practitioners and Midwives. The purpose of these standards is to: ■■ create the minimum requirements for accepted professional practice ■■ assist nurses and midwives in determining their respective scopes of practice, both individual and of the profession, and ■■ provide a clear framework for assessing the performance of a nurse or midwife. These standards can also be found on the NMBA website. Members should become very familiar with them.

A breach of any standard for the profession can result in action by the relevant regulator for unprofessional conduct or professional misconduct...

NURSES AND THE LAW 5th EDITION 51

Professional practice issues

Frameworks

Scope of practice of a profession

Decision-making Framework

A professions’ scope of practice is the full spectrum of roles, functions, responsibilities, activities and decision-making capacity that individuals within that profession are:

The NMBA provides a framework for nurses and midwives to assist them in their decisionmaking about practice. The DMF is a useful document and provides good direction on the various aspects of practice and the practice environment that should be considered when making decisions about: ■■ the motivation for a decision ■■ when an activity is beyond one’s scope of practice and how to expand that scope ■■ who is the most appropriate person to perform a nursing or midwifery activity ■■ making decisions in a collaborative context. The framework also provides excellent guidance on the criteria to be considered before delegating a task to an Enrolled Nurse or to an Assistant in Nursing or Personal Care Worker.

■■ educated ■■ competent and ■■ authorised to perform. Some functions within the scope of practice of any profession may be shared with other professions or other individuals or groups. The scope of practice of all health professions is influenced by the wider environment, the specific setting, legislation, policy, education, standards and the health needs of the population.

Scope of practice of an individual The scope of practice of an individual is that which the individual is: ■■ educated ■■ authorised and ■■ competent to perform. The scope of practice of an individual nurse or midwife may be more specifically defined than the scope of practice of their profession. To practise within the full scope of practice of the profession may require individuals to update or increase their: ■■ knowledge ■■ skills ■■ or competence. Decisions about both the individual’s and the profession’s practice can be guided by the use of decision-making tools. When making these decisions, nurses and midwives need to consider their individual and their respective profession’s scope of practice.

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Guidelines

Professional boundaries

Continuing Professional Development

An occupational hazard for nurses and midwives?

The NMBA has issued guidelines for nurses and midwives to meet their mandatory obligation to undertake the minimum hours of continuing professional development on an annual basis. The NMBA recommends that nurses and midwives complete a range of CPD activities throughout the course of the registration period. This is more effective for learning than completing CPD activities of one type, or in a short time period. CPD activities must be relevant to the nurse or midwife’s area of professional practice, and have clear aims and objectives that meet their requirements. Nurses and midwives must keep records of their CPD activities for a period of five years from the date you completed the CPD. All CPD records must be available for audit or if needed by the NMBA as part of an investigation arising from a notification (complaint). The minimum requirement for all Registered Nurses, Enrolled Nurses and Midwives is 20 hours of CPD per registration year. Nurse Practitioners and Midwives with endorsement for scheduled medicines must complete an additional 10 hours relevant to their endorsement. The QNMU’s member-only CPD portal includes a feature that allows you to track, record and reflect on your CPD, in a format suitable for audit. Visit www.qnmu.org.au/CPD

The authors Karen V. Holder and Stephen J. Schenthal in Watch your step: Nursing and professional boundaries (Nursing Management, February 2007) observed: “Boundary issues… exist everywhere for nurses, regardless of the professional setting. Boundary continuum issues range from giving or receiving a gift from a patient, to picking up groceries for a homebound patient, to social contacts with former patients or their relatives— especially in the case of minors—to having a sexual relationship with a patient. This list isn’t exhaustive, but definitions and interpretations of such boundary issues are expanding in state nurse practice acts, in media sources, and in courts of law. While nurses are educated in the importance of therapeutic disclosure with patients, and in the concept of ‘partnering with patients’, there’s little training given on the concepts of inherent power differentials or on crossing the line with gifts, gestures, touch, or special attention. Though many of these areas aren’t harmful within a therapeutic context, nurses and nurse managers must be increasingly aware of patterns of boundary crossings and the potential or real harm that may come to patients and to nursing staff. Some authors go so far as to state that professional boundary crossings and violations are an occupational hazard in nursing and in the healthcare professions. Certainly, nurses and other health professionals are vulnerable to NURSES AND THE LAW 5th EDITION 53

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patient/client perceptions and other practice issues. Some common examples of vulnerabilities in hospital settings are isolated work environments, lack of direct nurse supervision, length and intensity of nurse-patient interactions, and patient vulnerabilities such as the fear and jeopardized independence brought on by surgery and illness.” The Nursing and Midwifery Board of Australian (NMBA) has recently released on 1 March 2018, both the Code of Conduct for Nurses and Code of Conduct for Midwives (the Codes). The NMBA have concurrently withdrawn the Professional boundaries for nurses and Professional boundaries for midwives and combined professional boundaries into the Codes. The Codes support nurses and midwives to provide safe practice as part of their professional roles. They provide foundational guidance to the public about the standard of conduct and behaviour expected from nurses and midwives, and helps the NMBA to protect the public by setting and maintaining standards for safe practice.

Professional boundaries for midwives The Code of Conduct for Midwives set minimum standards that midwives are expected to uphold both within and outside of professional domains in order to ensure the ‘good standing’ of the profession in Australia. This Code, together with other published practice standards (e.g. code of ethics, standards of practice, decision making frameworks, direction and delegation guidelines and position statements) provide the framework for legally and professionally 54 NURSES AND THE LAW 5th EDITION

accountable and responsible midwifery practice in all clinical, management, education and research domains, in Australia. The Code identifies how a midwife is expected to behave with professional integrity and embody values; integrity, honesty, respect and compassion. The Code defines professional boundaries as: “allowing midwives, the woman and the woman’s nominated partners, family and friends to engage safely and effectively in professional relationships, including where care involves personal and/or intimate contact. In order to maintain professional boundaries, there is a start and end point to the professional relationship and it is integral to the midwife-woman professional relationship.” The NMBA is clear that to maintain professional boundaries a midwife must: e. recognise the inherent power imbalance that exists between midwives, women in their care and significant others and establish and maintain professional boundaries f. actively manage woman’s expectations, and be clear about professional boundaries that must exist in professional relationships for objectivity in care and prepare the woman for when the episode of care ends g. avoid the potential conflicts, risks, and complexities of providing care to those with whom they have a pre-existing nonprofessional relationship, and ensure that such relationships do not impair their judgement. This is especially relevant for those living and working in small, regional or cultural communities and/or where there is long-term professional, social and/or family engagement

The Code identifies how a midwife is expected to behave with professional integrity and embody values; integrity, honesty, respect and compassion.

h. avoid sexual relationships with the woman, her partner and/or members of the womanâ&#x20AC;&#x2122;s family, with whom they have currently or had previously entered into a professional relationship. These relationships are inappropriate in most circumstances and could be considered unprofessional conduct or professional misconduct i. recognise when over-involvement has occurred, and disclose this concern to an appropriate person, whether this is the person involved or a colleague j. reflect on the circumstances surrounding any occurrence of over-involvement, document and report it and engage in

management to rectify or manage the situation k. in cases where the professional relationship has become compromised or ineffective and ongoing care is needed, facilitate arrangements for the continuing care of the woman to another health practitioner, including passing on relevant clinical information l. actively address indifference, omission, disengagement/lack of care and disrespect to women that may reflect underinvolvement, including escalating the issue to ensure the safety of the woman if necessary NURSES AND THE LAW 5th EDITION 55

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m. avoid expressing personal beliefs to the woman in ways that exploit the woman’s vulnerability, are likely to cause them unnecessary distress, or may negatively influence their autonomy in decisionmaking, and

For midwives who also practise as nurses a separate but consistent Code of Conduct for Nurses has been developed for nurses to complement the equivalent codes of professional conduct and ethics for nurses in Australia.

n. not participate in physical assault such as striking, unauthorised restraining and/or applying unnecessary force.

Professional boundaries for nurses

The principles that are inherent in the partnership model between a woman and a midwife are: ■■ individual negotiation ■■ equality ■■ share responsibility ■■ empowerment, and ■■ informed choice and consent.

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The Code of Conduct for Nurses set minimum standards that nurses are expected to uphold both within and outside of professional domains in order to ensure the ‘good standing’ of the profession in Australia. The code is written in recognition that nursing practice allows nurses to work in management, leadership, governance, administration, education, research, advisory, regulatory, policy development roles or other roles that impact on safe, effective delivery

of services in the profession and/or use of the nurseâ&#x20AC;&#x2122;s professional skills. The code is supported by the NMBA Registered nurse standards for practice, the NMBA Enrolled nurse standards for practice and, with the other NMBA standards, codes and guidelines, which underpins the requirements and delivery of safe, kind and compassionate nursing practice. To maintain professional boundaries, nurses must: a. recognise the inherent power imbalance that exists between nurses, people in their care and significant others and establish and maintain professional boundaries b. actively manage the personâ&#x20AC;&#x2122;s expectations, and be clear about professional boundaries that must exist in professional relationships for objectivity in care and prepare the person for when the episode of care ends c. avoid the potential conflicts, risks, and complexities of providing care to those with whom they have a pre-existing nonprofessional relationship and ensure that such relationships do not impair their judgement. This is especially relevant for those living and working in small, regional or cultural communities and/or where there is long-term professional, social and/or family engagement d. avoid sexual relationships with persons with whom they have currently or had previously entered into a professional relationship. These relationships are inappropriate in most circumstances and could be considered unprofessional conduct or professional misconduct

e. recognise when over-involvement has occurred, and disclose this concern to an appropriate person, whether this is the person involved or a colleague f. reflect on the circumstances surrounding any occurrence of over-involvement, document and report it, and engage in management to rectify or manage the situation g. in cases where the professional relationship has become compromised or ineffective and ongoing care is needed, facilitate arrangements for the continuing care of the person to another health practitioner, including passing on relevant clinical information h. actively address indifference, omission, disengagement/lack of care and disrespect to people that may reflect underinvolvement, including escalating the issue to ensure the safety of the person if necessary i. avoid expressing personal beliefs to people in ways that exploit the personâ&#x20AC;&#x2122;s vulnerability, are likely to cause them unnecessary distress, or may negatively influence their autonomy in decision-making (see the NMBA Standards for practice), and j. not participate in physical assault such as striking, unauthorised restraining and/or applying unnecessary force. The following are examples of boundary issues for both nurses and midwives. 1. Small communities The QNMU recognises that many nurses and midwives work in small communities and may know some of the patients who present for care. NURSES AND THE LAW 5th EDITION 57

Professional practice issues

Variables such as the care setting, community influences, client needs, nature of the therapy provided, age of the client and degree of involvement affect the delineation of behavioural limits. All these factors must be considered when establishing boundaries; and all contribute to the complexity of professional boundaries. The difference between a caring relationship and an over-involved relationship is narrow.

The codes and guidelines do not specify a set period of time which must pass before it would not be considered unacceptable for a nurse to form a relationship with a patient. In a matter before QCAT (NMBA v Dyason [2011] QCAT 423), the panel considered a case where a nurse working in a prison formed a relationship with a prisoner. The nurse had stopped caring for the patient soon after the relationship commenced.

A professional living and working in a remote community will, out of necessity, have business and social relationships with people to whom they are providing care.

The QCAT panel accepted that the evidence suggested that it was a consensual and genuine relationship.

Setting appropriate standards is very difficult. If they do not relate to real life, these standards may be ignored by the nurse or simply may not work.

The nurse sought to draw a distinction based on whether her relationship with the prisoner was physical and whether she was working in the unit at the time it became physical. QCAT commented that:

However, the absence of consideration of professional boundaries places person receiving care and the nurse at risk. 2. Sexual relationships Sexual relationships between nurses, and midwives, and persons with whom they have previously entered into a professional relationship are inappropriate in most circumstances. Such relationships automatically raise questions of integrity in relation to nurses exploiting the vulnerability of persons who are or who have been in their care. Consent is not an acceptable defence in the case of sexual or intimate behaviour within such relationships. The patient pursuing or initiating the relationship or contact is not a defence. It is the nurse’s responsibility to maintain the professional boundary. 58 NURSES AND THE LAW 5th EDITION

“While these matters might mitigate the conduct, they do not necessarily determine whether the relationship was improper. Even when a sexual relationship commences after the therapeutic relationship ends, it is improper if there is any suggestion the practitioner has exploited a dependency created during the professional relationship”. In that matter, the nurse’s registration was cancelled, and she was prohibited from reapplying for registration for at least 18 months, with other conditions imposed regarding education and counselling. 3. Personal relationships and friendships Professional boundary issues can arise where the nurse and or midwife has developed a personal relationship or a friendship with patients, or former patients.

a gift or benefit, the following guidelines apply to nurses and midwives: ■■ may accept token or inexpensive gifts offered as a gesture of appreciation, and not to secure favour. They do not accept gifts that are more than a token; nor do they accept gifts of cash, other than a negotiated fee for service when in private practice ■■ in employment report the acceptance of the gift to their supervisors and seek their agreement to retain the gift; and ■■ take all reasonable steps to ensure that neither they nor their immediate family members accept gifts or benefits an impartial observer could view as a means of securing the nurse’s influence or favour. The nurse/midwife-patient relationship isn’t a friendship; it’s a therapeutic relationship directed by the patient’s/woman’s health needs. 4. Gifts and benefits Another area in which professional boundary issues often arise is in relation to acceptance of gifts or benefits from patients or their families. Nurses and midwives recognise their professional position and do not accept gifts or benefits that could be viewed as a means of securing the nurses’ and or midwifes’ influence or favour. Nurses and midwives do not allow the offer of any gift or benefits to change the way they work or make decisions, working on the general presumption that they do not accept any gifts or benefits. Recognising the reality of people wishing to demonstrate their appreciation for care by providing an acknowledgement in the form of

Individual organisational policy should decide the value at which items need to be officially declared. Gifts such as chocolates or flowers are generally acceptable. The process of declaring gifts received prompts nurses and midwives to consider the issue of gifts and professional conduct and acts as a stimulus to discussion around what is appropriate and what is not. In a matter which was considered by the Queensland Court of Appeal (Fletcher v QNC [2009] QCA 364) — after first being considered by the former Queensland Nursing Tribunal and then by the District Court — a nurse inherited a large sum of money under a former patient’s will. The nurse declined to give up her entitlement despite request by her employer and by the patient’s largely estranged family. The nurse had initially provided community care to the patient, but later continued to visit NURSES AND THE LAW 5th EDITION 59

Professional practice issues

the man in hospital and in hospice care, and attended to matters for him, despite the care relationship ending. The former Queensland Nursing Council alleged that the nurse had engaged in unsatisfactory professional conduct, and that she had abused her position of influence and trust in relation to the patient in that she had, amongst other things, involved herself in the patient’s affairs to such an extent there was a risk that the patient could become unduly influenced by the nurse in circumstances where the nurse had failed to take appropriate steps to make it clear to the patient that the therapeutic relationship had come to an end, that she had failed to take steps to ensure clarity in her relationship with the patient, and failed to relinquish her entitlement under the will. The nurse’s registration was cancelled, and she was prohibited from reapplying for registration for two years. Nurses should also not enter into any financial transactions with patients (other than as part of a contract for the provision of services). In a matter considered by QCAT (NMBA v Farley [2011] QCAT 162), a nurse who had borrowed money from a patient and a friend of the patient was suspended from practice and allowed to return to practice after 6 months and after she had complied with certain conditions regarding counselling and education. QCAT commented that the nurse could not compartmentalise her relationship with the patient between personal and professional aspects. QCAT found that the nurse had engaged in misconduct in a professional respect. 60 NURSES AND THE LAW 5th EDITION

Nurses and midwives must be careful to ensure that their relationships with patients/ the woman remain professional, rather than personal.

What can happen if you breach professional boundaries? In serious cases, nurses and midwives may be liable for disciplinary action brought by the NMBA for unprofessional conduct or professional misconduct. Disciplinary matters are brought in the Queensland Civil and Administrative Tribunal (QCAT). QCAT has the power to suspend or cancel a nurse’s or midwife’s registration. Nurses and midwives brought before QCAT in disciplinary matters may also be required to personally pay the legal costs incurred by the NMBA, which are usually in excess of $10,000. The Health Ombudsman can also take action, including the issuing of a prohibition order that can prevent a person from providing any form of health service, including nursing, midwifery, assisting with nursing or personal care work.

Professional Practice Guidelines — mandatory reporting The National Law requires practitioners, employers and education providers to report ‘notifiable conduct’, as defined in section 140 of the National Law, to the Health Ombudsman in order to prevent the public being placed at risk of harm. These Professional Practice Guidelines explain how the Health Ombudsman and the Boards (including the NMBA) will interpret these mandatory notification requirements.

They will help practitioners, employers and education providers understand how to work with these requirements â&#x20AC;&#x201D; that is, whether they must make a notification about a practitionerâ&#x20AC;&#x2122;s conduct and when. The threshold to be met to trigger the requirement report notifiable conduct in relation to a practitioner is high and the practitioner or employer must have first formed a reasonable belief that the behaviour constitutes notifiable conduct.

The aim of the mandatory notification requirements is to prevent the public from being placed at risk of harm. The intention is that practitioners notify the Health Ombudsman if they believe that another practitioner has behaved in a way which presents a serious risk to the public. The requirements focus on serious instances of substandard practice or conduct by practitioners, or serious cases of impairment, that could place members of the public at risk. For students, the requirements focus on serious cases of impairment of students. That is, the requirements focus on behaviour that puts the public at risk of harm, rather than not liking the way someone else does something or feeling that they could do their job better. Similarly, if the only risk is to the practitioner alone, and there is no risk to the public, the threshold for making a mandatory notification would not be reached. For example, in a case where the risk is clearly addressed by being appropriately managed through treatment and the practitioner is known to be fully compliant with that, mandatory notification would not be required. This is reinforced in the Queensland National Law which contains a partial exemption to mandatory reporting. The relevant provision confirms that if you are providing treatment (nursing care) to the person and they are not creating a substantial risk of harm to the public, or engaging in professional misconduct, then you are not required to make a notification or complaint. NURSES AND THE LAW 5th EDITION 61

Professional practice issues

Re-entry to practice The role of the National Board, the NMBA, is to protect the public by ensuring that anyone who is registered is safe and competent to practise. A key requirement is that the nurse and/ or midwife is able to demonstrate that they meet the Board-approved national competency standards for the Enrolled Nurse, Registered Nurse or Registered Midwife. All applicants for registration are required to demonstrate that the relevant national competency standards have been met. This policy is to be read in conjunction with the Board’s registration standards and, in particular, the recency of practice and continuing professional development registration standards for nurses and midwives. The Board-approved recency of practice registration standard applies to nurses and midwives when they apply for renewal of registration each year. Persons who were registered nurses or midwives in Australia but have not practised in the profession for a period of five years or more will be required to undergo an individual assessment of their application. This assessment will be based on the previously-registered nurse and/or midwife’s: ■■ qualifications (including both undergraduate and postgraduate nursing and/or midwifery studies) ■■ professional practice history and ■■ length of time away from practising in the profession/s. 62 NURSES AND THE LAW 5th EDITION

The outcome of this assessment will determine whether the person is required to complete: 1. a Board-approved supervised practice program 2. a Board-approved re-entry to practice program or 3. requisite studies in a re-entry to practice pathway within a Board-approved entry to practice program of study leading to initial registration, as identified by a Boardapproved education provider following recognition of the individual’s prior learning. Members who seek to be registered and have not been registered or engaged in clinical or non-clinical practise for more than five years should contact the QNMU for assistance.

Social media policies When using social media, nurses and midwives should remember that the National Law, the NMBA Code of Ethics and Codes of Conduct and the guidelines for advertising regulated health services (the advertising guidelines) apply. Nurses and midwives should only post information that is not in breach of these obligations by: ■■ complying with professional obligations ■■ complying with confidentiality and privacy obligations (such as by not discussing patients or posting pictures of procedures, case studies, patients, or sensitive material which may enable patients to be identified without having obtained consent in appropriate situations), presenting information in an unbiased, evidencebased context and ■■ not making unsubstantiated claims.

Coronial matters Nurses and midwives should expect to come into contact with the court system at some point in their working lives. The court you are most likely come into contact with is the Coroners Court. The Coroners Court is different to other courts because a matter heard is conducted more as an investigation than an adversarial trial. A coroner can conduct the inquiry as they see fit. Under the Coroners Act 2003 the coroner has the power to investigate reportable deaths. A reportable death occurs when: ■■ the identity of the person is unknown ■■ the death was violent or unnatural ■■ the death happened in suspicious circumstances ■■ the death occurred in custody ■■ the death occurred in care

■■ a cause of death certificate was not issued or is not likely to be issued or ■■ significantly for nurses and midwives, the death was not the reasonable expected outcome of the health procedure. In investigating a death the coroner must make findings about the identity of the person and how, when and what caused the person to die. The coroner is also encouraged to make recommendations when information from an inquest is relevant to public health and safety, the administration of justice, or preventing similar deaths from happening in the future. The QNMU’s professional indemnity insurance (PII) policy will cover the costs of legal representation for members required to appear at coronial inquests. You should always seek advice from the QNMU whenever you are required to NURSES AND THE LAW 5th EDITION 63

Professional practice issues

participate in a coronial process. Usually the first people to contact you will be the police who are empowered under the Coroners Act and the Police Powers and Responsibilities Act to assist the coroner in their investigations. You are entitled, under the Police Powers and Responsibilities Act, to seek legal advice before participating in an interview with a police officer assisting the coroner. You should also carefully consider whether you should obtain your own legal representation rather than rely upon legal representation which may be offered to you by your employer, as often the interests of your employer will diverge from your professional interests as a nurse or midwife. Under the QNMUâ&#x20AC;&#x2122;s professional indemnity insurance cover, which is a benefit of QNMU membership, legal representation can be provided to members. There are good reasons for you considering whether you require independent legal representation. In the case of the Inquest into the Death of Margaret Anne Winters, the Department of Health in the Northern Territory essentially tried to blame nursing staff for the death of an elderly patient in the Royal Darwin Hospital. The Australian Nursing and Midwifery Federation (the QNMU is the Queensland branch of the ANMF) successfully represented the nurses during the inquest. The coroner ultimately found that deficiencies in hospital management, particularly poor staff to patient ratios and restrictions on hiring additional staff, were the primary cause of the patientâ&#x20AC;&#x2122;s death. 64 NURSES AND THE LAW 5th EDITION

This is a prime example of where the interest of an employer diverged from that of nursing staff and highlights the importance of seeking independent advice. The QNMU is aware of many cases where a nurse has elected to accept representation from their employer only to end up with the coroner making critical findings regarding their practice. This could result in civil liability for the nurse or, most commonly, the nurse being reported to the Nursing and Midwifery Board of Australia.

Open disclosure The Open Disclosure Standard is a national standard for Australian public and private hospitals which provides a framework for open communication following an adverse event in health care. It was first published in 2003 by the former Australian Council for Safety and Quality in Health Care (now the Australian Commission on Safety and Quality in Health Care). The preface to the standard summarises its aim as: to promote a clear and consistent approach by hospitals (and other organisations where appropriate) to open communication with patients and their nominated support person following an adverse event. This includes a discussion about what has happened, why it happened and what is being done to prevent it from happening again. It also aims to provide guidance on minimising the risk of recurrence of an adverse event through the use of information to generate systems improvement and

Open disclosure involves the open discussion of issues following an adverse incident in health care... promotion of a culture that focuses on health care safety. Open disclosure involves the open discussion of issues following an adverse incident in health care and contains a number of elements: an expression of regret, the explanation of what has occurred and likely consequences, and what is happening to manage the consequences of the particular incident and prevent similar incidents from occurring again. The objective is to promote improved safety and quality in health care.

In January 2005 the Australian Health Ministers Advisory Council endorsed an open disclosure implementation plan that had been developed by the Australian Council for Safety and Quality in Health Care. This plan involved the piloting of the standard in a number of public and private hospitals across the country. In November 2007 an evaluation report of the pilot project made a number of recommendations to improve the current approach to disclosure of, and dealing with, adverse events in health care. NURSES AND THE LAW 5th EDITION 65

Professional practice issues

A particular area highlighted in this evaluation was the legal and insurance implications of open disclosure. State and territory health departments have differed in their approaches to open disclosure. In Queensland the Patient Safety Unit (operating under the auspices of the Department of Health) was formed early in 2005 to take a lead role in promoting patient safety initiatives in both the public and private sectors. It is now called the Patient Safety and Quality Improvement Service (PSQIS). Significant resources are available from the PSQIS website on open disclosure and patient safety generally at https://clinicalexcellence.qld.gov.au/ priority-areas/safety-and-quality A particular area of activity for the PSQIS has been the provision of training for health professionals on the Human Error and Patient Safety (HEAPS) program and Root Cause Analysis (RCA). The aim of the HEAPS program is to move away from a culture of blame towards a culture of learning, improving and increased patient safety. An RCA is a systematic analysis of an adverse incident focusing on what happened, why it happened and how it can be prevented from happening in the future. Section 38H of the Health Services Act defines ‘root cause analysis’ as follows: 1. Root cause analysis or RCA, of a reportable event, means a systematic process of analysis under which — a. factors that contributed to the happening of the event may be identified; and 66 NURSES AND THE LAW 5th EDITION

b. remedial measures that could be implemented to prevent a recurrence of a similar event may be identified. 2. However, a root cause analysis or RCA of a reportable event does not include — a. investigating the professional competence of a person in relation to the event; or b. finding out who is to blame for the happening of the event. In 2007, changes were made to various pieces of Queensland legislation to create a statutory framework to facilitate the use of RCA in Queensland public and private health services as well as the Queensland Ambulance Service. These legislative changes were necessary to afford greater legal protection to health professionals participating in RCAs. Section 38H of the Health Services Act provides: Participation in RCAs is voluntary. However, the information provided during an RCA can be provided to certain other bodies.... RCA is not an appropriate tool and must not be used to investigate allegations of a ‘Blameworthy Act’ or concerns about the performance of an individual practitioner. A blameworthy act means an intentional unsafe act or, deliberate patient abuse or, conduct that constitutes a criminal act. The QNMU supports the national safety and quality agenda and encourages nurses and midwives to take a lead role in processes that aim to improve safety and quality in health service delivery in Australia.

However, as there are outstanding legal and insurance implications associated with open disclosure (as highlighted in the 2007 evaluation of this program) QNMU members should contact the QNMU prior to participating in an RCA or open disclosure process. This will ensure that the QNMU has a record of the matter and can provide advice to members as required. Members should also review Chapter 5: Mandatory reporting.

Office of the Health Ombudsman From 1 July 2014, a new the Office of the Health Ombudsman (OHO) began operations as Queenslandâ&#x20AC;&#x2122;s independent health complaints agency, replacing the Health Quality and Complaints Commission. OHO was created in August 2013 with the passing of the Health Ombudsman Act 2013 and has more extensive powers than the former Commission. From 1 July 2014, all health service complaints now go to the Health Ombudsman, including complaints about individual practitioners. If a complaint is submitted to the Health Ombudsman by a patient, family member, staff member or other person regarding your work as a health service provider, the complaint will be initially assessed by the Office of the Health Ombudsman in the same way for both registered and unregistered practitioners. The Health Ombudsman must decide within seven (7) days to accept a complaint and take relevant action, or decide to take no further action in respect of a complaint.

Irrespective of what the Health Ombudsman decides, written notice of the decision is to be provided to both the complainant and the nurse within seven days of receiving the complaint 1. The Health Ombudsman has the option of retaining and actioning the complaint, or referring the matter (or part of the matter) to AHPRA for consideration and action by the National Board. Health Ombudsman processes have strict timelines for responding to complaints and extensions will not be granted. If you are issued with a notice from the Health Ombudsman, you should immediately contact the QNMU for advice.

Drugs and poisons regulations Health (Drugs and Poisons) Regulation 1996 The Health Act 1937 governs all dealings with drugs, poisons and controlled substances in Queensland. Part 4 of the Act includes a power to make regulations about drugs and other substances. The Health (Drugs and Poisons) Regulation 1996 is made pursuant to the Act and establishes controls over dealings with drugs and poisons. Under the â&#x20AC;&#x2DC;carerâ&#x20AC;&#x2122; provisions of the regulation, Assistants in Nursing or Personal Care Workers working in aged care facilities do not need an endorsement to help another person to take their dispensed medications if the person asks the AIN for help, and if the AIN helps the person to take their dispensed NURSES AND THE LAW 5th EDITION 67

Professional practice issues

The carer provisions do not permit AINs or Personal Care Workers to possess scheduled drugs and poisons.

medication according to the directions on the label of the medicationâ&#x20AC;&#x2122;s container. The QNMUâ&#x20AC;&#x2122;s interpretation of the law at this time is that the request for help must be made personally by the person at the time help is needed to take a medication.

The carer provisions do not permit AINs or Personal Care Workers to possess scheduled drugs and poisons. Unfortunately the carer provisions do not contemplate the standards required in the professional practice of nursing.

It follows that the person seeking assistance has the cognitive capacity to know what the medication is, why it is needed and when.

To do that, we must consider two other pieces of legislation that are relevant to the administration of medicines in aged care.

It can only extend to medication which has physically been supplied as a dispensed medication for that person before the request for help is made and while the medication is in the possession of that person.

Firstly, the Aged Care Act 1997 establishes the Quality of Care Principles, which prescribe that aged care facilities must comply with all relevant legislation, regulations, professional standards and guidelines.

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In October 2012 the Commonwealth Department of Health and Ageing published the Guiding Principles for Medication Management in Residential Aged Care Facilities. The ANMF, in conjunction with the Royal College of Nursing, also developed Nursing Guidelines: Management of Medicines in Aged Care as a resource for aged care workers. It is available under the professional guidelines tab on the ANMF website. These guidelines state that, where the aged care recipient is unable to selfmedicate, the medication should be given by a Registered Nurse or an Enrolled Nurse (without notation). This means that Registered Nurses must ensure that Assistants in Nursing and carers assist with medication only where the resident is competent to self-administer their medicines and seeks help to access it. The QNMU believes that the nursing professional standard is that Queenslandâ&#x20AC;&#x2122;s carer provisions are only enlivened (professionally) when the person seeking assistance with medication has already been assessed as able to self-medicate. Secondly, the Health Practitioner Regulation National Law Act 2009 establishes the Nursing and Midwifery Board of Australia (NMBA), which in turn develops codes and guidelines for the profession. These codes and guidelines describe the limited role of the carer in nursing activities and prescribe that the Registered Nurse is the person responsible for ensuring that professional standards are followed in relation to evidenced-based practice and the delegation and supervision of carers.

Registered Nurses are expected to be aware of professional standards relevant to their context of care and to incorporate them into their practice. This in turn means that the Registered Nurse must be aware that the carer provisions can be incorporated into professional practice only when the person seeking assistance is able to self-medicate. Workplace policies related to medication management must comply with legislative requirements, professional standards and guidelines, and nursing staff are required to adhere to these policies. However, the Australian Nursing and Midwifery Accreditation Council (ANMAC) state that nurses cannot assume that all workplace policies comply with relevant legislation, standards and guidelines. Nurses must critically analyse policies to ensure their compliance, or otherwise raise issues of non-compliance with the employer. Whenever carers are assisting with medication outside of this standard, the registered nurse could be engaging in unprofessional conduct. This is because the registered nurse â&#x20AC;&#x2DC;on the floorâ&#x20AC;&#x2122; is responsible for deciding who provides care and they must ensure that professional standards are applied.

Practising in different classifications of nursing from those for which you are trained or training Enrolled/Registered Nurses employed as assistants in nursing There is no barrier for Enrolled Nurses and Registered Nurses to work as Assistants in Nursing but there are professional and ethical NURSES AND THE LAW 5th EDITION 69

Professional practice issues

dilemmas that must be carefully considered by Registered and Enrolled Nurses before undertaking employment as an Assistant in Nursing. If a Registered or Enrolled Nurse chooses to undertake work as an Assistant in Nursing there may be a professional expectation that could expose the nurse to risk. For instance, as a Registered or Enrolled Nurse you may identify a problem with a patient that requires immediate action to avert an adverse outcome for a patient. The NMBA may seek an explanation from you about why you did not take appropriate action based on your professional knowledge and expertise as a Registered or Enrolled Nurse to either prevent or limit the effects of an adverse incident. Previously the QNC recommended that if a nurse is placed in this situation, then it is important for them to be aware of the reporting channels available in the workplace. The nurse must report concerns to a senior nurse and document their concerns appropriately. If the nurse has engaged in an activity that falls outside the scope of practice of an Assistant in Nursing and this results in an injury to the patient then the individual nurse may be held personally liable.

Concurrent Registration as a Registered Nurse and Enrolled Nurse Prior to the introduction of the Health Practitioner Regulation National Law Act 2009 (National Law) an individual nurse in Queensland could only be a Registered Nurse or Enrolled Nurse, they could not be both at the same time. When the National Law was originally introduced transitional arrangements meant nurses could be registered as both an Enrolled Nurse and a Registered Nurse, but on 31 May 2014, nurses with dual registration had to elect to be registered as either an EN or RN. However, the NMBA decided that nurses with concurrent registration could hold both registrations at the same time and work as either a Registered or Enrolled Nurse and this remains the case. Members with concurrent registration must keep in mind that they must maintain compliance with the registration standards for both divisions.

Enrolled Nurses undertaking an undergraduate nursing degree An Enrolled Nurse is permitted to continue practising as an EN while undertaking study to become a RN.

Furthermore, if the nurse has acted outside the scope of their employment, the employer may decline to indemnify the nurse.

The Enrolled Nurse is entitled to make a decision about when they wish to become registered.

If you are an RN or EN it would be prudent to clarify potential issues with a QNMU legal or professional officer and the NMBA before undertaking a position as an Assistant in Nursing.

For example, if a currently employed Enrolled Nurse secures employment as a graduate Registered Nurse with a commencement date of three months post completion of studies, the nurse can continue

70 NURSES AND THE LAW 5th EDITION

to work as an Enrolled Nurse until they are officially registered as an RN. However, from 31 May 2014, an Enrolled Nurse will not be able to continue working as such once they have been entered into the Register as a Registered Nurse (RN).

Student nurses employed as Assistants in Nursing in acute wards/units Student nurses often seek employment as Assistants in Nursing (AIN) in health and aged care settings. Issues can arise with respect to scope of practice concerns, especially when these students are employed as AINs in acute care facilities where patient acuity is usually more complex. Registered Nurses and student nurses must be vigilant in delegation and the acceptance of delegation as it may impact on the student nurses obtaining registration. The QNMU therefore advises the following for student nurse employment: 1. Student nurses employed as AINs must work within the job description of that position. 2. Registered Nurses who delegate duties to an Assistant in Nursing must know their level of competency. The Director of Nursing cannot make delegations on behalf of the individual Registered Nurse. 3. The QNMU is aware of facilities where the Director of Nursing has employed student nurses as AINs. The QNMU’s position is that the role of an AIN in an acute care facility is limited greatly in direct patient care. The Registered Nurse delegating duties to the AIN must be fully aware of the implications of inappropriate delegation to an AIN in an acute care facility.

Some years ago a working party was convened with the QNMU, Queensland Health and the then Queensland Nursing Council at the request of Directors of Nursing to explore issues associated with the employment of student nurses. A position description was developed and a title ‘Undergraduate Nursing Assistants’ agreed. By doing this, the student nurses would then be identified as being in a position to undertake responsibilities within this role. The QNMU believes this could be considered as an option to employ student nurses.

Substitute decision making This section draws on ‘Chapter 17 – Laws Relating to Individual Decision Making’ in The Queensland Law Handbook: Your Practical Guide to the Law (9th ed.), Caxton Legal Centre, Brisbane, 2007. In this section we will briefly look at what happens when an adult is unable to make decisions for themselves, particularly decisions relating to their health. A person has an impaired decision making capacity if they are unable to understand the nature and effect of the decision, unable to decide freely and voluntarily, and unable to communicate the decision in some way. Importantly, the state’s Guardianship and Administration Act 2000 provides that an adult is presumed to have capacity to make a decision unless incapacity for that particular decision is established. Legislation in Queensland has been established to enable adults to plan for NURSES AND THE LAW 5th EDITION 71

Professional practice issues

circumstances in the future where they may lack capacity to make decisions.

government’s Office of the Public Guardian steps in.

The Powers of Attorney Act 1998 sets out in detail how a power of attorney can be established and what can and cannot be done by someone authorised under a power of attorney.

It is important that nurses and midwives have a clear understanding of who has the authority to make decisions about the health of the individuals they are caring for.

To be valid, a power of attorney must be in the form of a properly completed document. In health matters, a person authorised under a power of attorney is able to make decisions regarding the health care of an individual. Such decisions can include the care, treatment, service or procedure for the health of that individual, in order to diagnose, maintain or treat the individual’s physical or mental condition.

Criminal history checks In a response to publicity around assaults in aged care facilities, the federal government has introduced legislation making it compulsory for all employees of aged care facilities to undergo criminal history checks. The legislation requires that some offences will disqualify people from being able to gain employment in aged care. Other offences will not.

This can occur in circumstances where the individual’s health care is conducted by or under the supervision of a health care provider.

It is also now a requirement under national registration of health practitioners that applicants undergo criminal history checking.

An individual can also make an advanced health directive, which is a document in which an individual can give directions or make decisions about their further health care in the event they lose capacity to make those decisions at the time.

While compulsory criminal checks appear to be an increasingly popular policy response by governments in human services, there are also a number of areas where employers are able to exercise discretion in requiring criminal history checks and in what they do with any information they obtain.

An advanced health directive will override the general authority provided in a power of attorney. Where an individual with impaired capacity has not appointed a power of attorney or made an advanced health directive then a statutory health attorney is authorised to make health care decisions. Usually this is the next of kin or other close person. If no appropriate person is available then the Adult Guardian from the Queensland 72 NURSES AND THE LAW 5th EDITION

The form of criminal history check, the information obtained, how it is retained and the way the information can be used varies from sector to sector. The QNMU is concerned about the way in which employers can potentially use information obtained through criminal history checks. We are also concerned about the protection of employees’ privacy and rights in circumstances where criminal history checks are required.

For example we are particularly concerned that some employers in aged care may take action against employees who have been convicted for offences other than those which are related to the inherent requirements of their job. We are also concerned about the keeping of records and access to them.

What is a criminal history? The concept of what is a criminal history varies depending on where an employee is seeking to work and the relevant legislation governing their employment. It can include the following: A conviction This is where a court has found that an individual has committed an offence, either after a trial or upon a plea of guilty. There are a variety of offences for which a person may be found guilty, from minor offences such as public nuisance type offences (these are generally known as ‘simple offences’) to more serious offences, which could result in a period of imprisonment (these are generally known as ‘indictable offences’). In Queensland (as in other states) some offences on an individual’s record lapse after a period of time as a consequence of the Criminal Law (Rehabilitation of Offenders) Act 1986. These are called ‘spent convictions’.

offence could subsequently be found guilty or not guilty, or the charges could be dropped or not yet finalised. Some criminal history checks take into account charges as well as convictions. An investigation This is where an individual has been investigated in respect of an offence but where no charges have been laid. Charges may not have been laid for a variety of reasons, one of which is that a key witness (for example a child victim in a sexual assault case) was unable or unwilling to give evidence. Some criminal history checks also look at investigations.

Specific requirements for criminal history checks Public Service generally and Queensland Health other than aged care facilities

The Public Service Act 1996 provides that the chief executive of a department may decide that because of the nature of particular duties to be performed in the department, regard should be had to the criminal history of anyone performing those duties. In such circumstances written consent from an individual enabling the chief executive to obtain a person’s criminal history may be sought.

In some employee criminal history checks spent convictions are not included, however in other circumstances there are specific exemptions from the Criminal Law (Rehabilitation of Offenders) Act 1986.

If the person refuses then they need not be considered further for the position.

A charge

One department that can require criminal history checks is of course Queensland Health.

This is where a person has been charged with an offence. A person charged with an

These criminal history checks are subject to the Criminal Law (Rehabilitation of Offenders) Act 1986.

NURSES AND THE LAW 5th EDITION 73

Professional practice issues

In addition, Queensland Health employees working in aged care facilities are now subject to criminal history checks under changes to the federal legislation governing aged care (Queensland Health aged care employees should look at the requirements in aged care set out below). In relation to the criminal history checking regime under national registration and accreditation. Refer to Chapter 3: National registration of nurses and midwives on page 17. The criminal history unit located within Queensland Health is responsible for managing criminal history checks including the storage of any records. For employees in Queensland Health, other than aged care, criminal history checks are subject to the Criminal Law (Rehabilitation of Offenders) Act 1986.

Queensland Health employees are required to notify their manager in writing if they are charged with an indictable offence or if committed of any offence by a court. result in a police certificate that has currency for three years. The key aspects of the requirements are: ■■ all new employees must have had a criminal history record check

A Queensland Health industrial relations manual has recently been reissued on the subject of Criminal History Checking Policy and Procedures.

■■ all existing employees must have had a criminal history record check

Queensland Health employees are required to notify their manager in writing if they are charged with an indictable offence or if committed of any offence by a court.

■■ an approved provider must not employ (or use as a volunteer) anyone who has been convicted of murder or sexual assault; or has been convicted of, and sentenced to imprisonment for any other form of assault

Aged care Requirements for national criminal history record checks for relevant staff in aged care came into effect from 1 March 2007.

■■ all volunteers must have had a criminal history record check

■■ the checks are subject to Criminal Law (Rehabilitation of Offenders) Act 1986

The requirements effectively apply to all staff and volunteers in aged care services subsidised under the federal Aged Care Act 1997.

■■ compliance with the requirements for obtaining police certificates will be monitored by the Aged Care Standards and Accreditation Agency as a part of its normal audit process

This includes both government and nongovernment aged care facilities. The criminal history record checks, once conducted, will

■■ approved providers must comply with the Privacy Act 1988 (see Privacy protections on page 77).

74 NURSES AND THE LAW 5th EDITION

There are a number of issues associated with the introduction of criminal history record checks in aged care that members need to be aware of.

Who pays? Who meets the cost of criminal history checks is currently at the discretion of the employer. The QNMU believes the employer should pay. Several employers have agreed to pay, including Queensland Health. Others require their own employees to pay.

Who owns the police certificate? The QNMU believes the employee should own and retain the police certificate. Some larger employers are using an organisation called CrimTrac to conduct the criminal history record checks. The QNMU understands that in these circumstances CrimTrac retains ownership of the certificate.

Who gets a copy of the police certificate? There is no requirement for employers to retain a copy of the police certificate. Employers are only required to keep records that enable the employer to demonstrate that for each staff member or volunteer there is a police certificate that is not more than three years old. This can be achieved without retaining a copy.

Who should do the checking of the police certificate at the workplace? The QNMU believes a senior representative of the employer should do the checking and that the responsibility should not be delegated to administrative/payroll/junior HR staff. Can the employer take action against an employee for offences revealed other than those that disqualify the employee from working in aged care?

The QNMU is extremely concerned that some employers may take action against employees whose checks reveal a former conviction that is not one of those proscribed as leading to a mandatory disqualification. Some employers have already indicated that they will do this. The QNMU believes that employers should have an extremely comprehensive set of policies and procedures for dealing with these issues that have at their core the principles of natural justice, freedom from discrimination, and the inherent requirements of the job.

Working with children Recent changes to the Commission for Children and Young People and Child Guardian Act 2000 mean that nurses and midwives are no longer required to obtain blue cards. Registered health professionals who are providing services that relate to their professional duties will no longer require a blue card, regardless of where this service is provided. If they wish to provide services which do not relate to their professional duties (for example, volunteering with a youth group) they will still be required to hold a blue card. AINs are still required to obtain a blue card. In Queensland most people who propose to work in a paid or voluntary capacity (including students), or carry on a business, in a child-related area regulated by the Commission for Children and Young People and Child Guardian Act are required to obtain a blue card which is only issued after a comprehensive criminal history check. Virtually all organised activities involving children are regulated by this Act. NURSES AND THE LAW 5th EDITION 75

Professional practice issues

Registered health professionals who are providing services that relate to their professional duties will no longer require a blue card...

The blue card check is exempt from the Criminal Law (Rehabilitation of Offenders) Act 1986. The criminal history record check undertaken in relation to applicants for a blue card is extremely extensive and includes not only convictions, but may also extend to charges, the circumstances of an offence where a person has a criminal history, and information concerning police investigations for serious sexual offences allegedly committed against children where the subject was not charged.

Disability services The stateâ&#x20AC;&#x2122;s Disability Services Act 2006 introduces compulsory criminal history screening for all people engaged by a funded 76 NURSES AND THE LAW 5th EDITION

non-government service provider in the disability services area. The criminal history check is exempt from Criminal Law (Rehabilitation of Offenders) Act 1986.

Non-compulsory criminal history checks In addition to the areas outlined above, some employers have introduced their own policies on criminal history record checks as part of their pre-employment screening and selection procedures. It is the QNMUâ&#x20AC;&#x2122;s view that in such circumstances employers should have an extremely comprehensive set of policies and procedures for dealing with these issues that have at their core the principles of natural

justice, freedom from discrimination, and the inherent requirements of the job. If an employer takes action against an employee or prospective employee based on their criminal record, where that record is not related to the inherent requirements of the job, then they are potentially discriminating against that person. It is possible to take a complaint of discrimination based on a real or imputed criminal record to the Human Rights and Equal Opportunity Commission.

Privacy protections The Office of the Privacy Commissioner has responsibilities under the federal Privacy Act 1988. This Act deals with the treatment of individuals’ personal information by Australian, ACT and NT government agencies and many organisations in the private sector. Under the Privacy Act, 10 National Privacy Principles (NPPs) regulate the way many private sector organisations treat personal information. To summarise the coverage of the private sector, the NPPs apply to organisations with an annual turnover of more than $3 million, and to all private health service providers and businesses, which trade in personal information irrespective of turnover. You should note, however, that some acts and practices are exempt from the NPPs. For example, in some circumstances, the handling of employee records in relation to current and former employment relationships by an employer is exempt from the NPPs.

In accordance with NPP 10, an organisation must not collect sensitive information (the term ‘sensitive information’ is defined in section 6 of the Act, and includes criminal record information) about an individual unless one of a number of exceptions applies. One of these exceptions applies where the individual has consented to the information being collected [NPP 10.1(a)]. Further, an organisation must not collect personal information about an individual unless it is necessary for one or more of its functions or activities (NPP 1.1). Pursuant to NPP 1.3, at or before the time that an organisation collects personal information about an individual, or if that is not practicable, as soon as practicable thereafter, an organisation must take reasonable steps to ensure that the individual has been made aware of: ■■ the identity of the organisation and how to contact it ■■ the fact that he or she can get access to the information ■■ the purpose for which the information is collected ■■ the organisations (or the types of organisations) to which the organisation usually discloses information of that kind and ■■ the main consequences (if any) for the individual if all or part of the information is not provided. Finally, if an organisation has collected criminal record information about an individual in a legitimate manner, it may only use or disclose this information for the primary purpose of collection unless one of the exceptions set out in NPP 2.1 applies. NURSES AND THE LAW 5th EDITION 77

Mandatory reporting M

andatory reporting is where a person is required by law to report to a relevant authority particular matters, for example abuse of the elderly or a missing person or suspected cases of child abuse and neglect. The people mandated to report, and the matters that must be reported, vary across the different states and territories. This section covers: ■■ aged care - compulsory reporting ■■ child protection – mandatory reporting ■■ NMBA – mandatory reporting guidelines and reporting obligations ■■ Queensland Health employees reporting obligations.

Aged care Compulsory reporting of suspected abuse of residential aged care residents The Aged Care Act 1997 (Commonwealth) governs aged care services across Australia. The Act makes it mandatory for aged care providers to report suspected abuse of residential aged care residents to both the police and to the Australian government 78 NURSES AND THE LAW 5th EDITION

Department of Health, which currently has responsibility for aged care.

Reporting requirements The Aged Care Act requires the approved provider of an aged care service to report allegations or suspicions of unlawful sexual contact or unreasonable use of force on a resident in an aged care facility. The approved provider must make the report as soon as reasonably practicable, and in any case within 24 hours of an allegation being made, or when the approved provider starts to suspect a reportable assault. Reports must be made to both the police and the department within 24 hours of the allegation being made, or from the time the approved provider starts to suspect, on reasonable grounds, that a reportable assault may have occurred. Where an allegation of assault is made by a resident there is a discretion for the approved provider not to report in limited circumstances. For example, where the approved provider forms an opinion that the alleged assault was

Reports must be made to both the police and the department within 24 hours of the allegation being made...

committed by another care recipient, who had previously been assessed to be suffering from a cognitive or mental impairment, the approved provider has a discretion not to report if a number of conditions are met.

use of force’. Guidelines published by the Australian Department of Health indicate that the term ‘unlawful sexual contact’ is intended to include any sexual contact, without consent, that is unlawful.

These conditions include a requirement that a resident behaviour management plan is developed by a qualified health professional and put in place within 24 hours of the allegation or suspicion being raised.

The guidelines indicate that the term is not intended to include situations where there is no physical contact.

Appropriate health professionals allowed to develop the behaviour management plan include registered nurses, medical practitioners and geriatricians.

What is a reportable assault? A reportable assault is defined in s.631AA(9) of the Aged Care Act as including ‘unlawful sexual contact’ or ‘unreasonable

For the full guidelines see https://agedcare.health.gov.au/ ensuring-quality/aged-care-qualityand-compliance/compulsoryreporting-for-approved-providers The guidelines indicate that the term ‘unreasonable use of force’ is intended to include assaults ranging from deliberate and violent physical attacks on residents to the use of unwarranted physical force on a resident. NURSES AND THE LAW 5th EDITION 79

Mandatory reporting

What are the approved providers’ responsibilities?

reporting staff member is not disclosed to anyone other than:

In addition to their specific reporting responsibilities, the legislation also requires approved providers to take measures to require staff members to report any suspicion of suspected abuse of a resident.

■■ a police officer with responsibility to the area including the aged care facility

The law also requires service providers to report that a resident is absent without explanation (also known as a missing resident). Staff members includes individuals who provide care or other services in the aged care facility. Nursing staff who are employed by nursing agencies and who work in an aged care facility are covered by this definition. A staff member may report to one or more of the following:

■■ the nominated delegate of the Department ■■ the approved provider’s key personnel or ■■ as otherwise required by law. Approved providers should develop policies and processes aimed at meeting the compulsory reporting requirements and ensure all staff receive training about the reporting requirements. Approved providers are also obliged to ensure that any staff member who reports suspected resident abuse does not suffer any detriment or any threat to cause detriment because they have made the report.

■■ the approved provider ■■ one of the approved provider’s key personnel ■■ another person authorised by the approved provider to receive reports of suspected reportable assaults ■■ a police officer with responsibility relating to the area including the aged care facility ■■ the Department of Health. The approved provider must identify who is authorised to receive reports of suspected reportable assaults and must let staff know who the authorised people are. A staff member may report directly to the police or to the Department of Health. If a staff member reports a suspected reportable assault to the approved provider, the approved provider must take reasonable measures to ensure that the name of the 80 NURSES AND THE LAW 5th EDITION

Approved providers are also obliged to ensure that any staff member who reports suspected resident abuse does not suffer any detriment...

What protections are in place for those who report suspected abuse of a resident? The Aged Care Act includes protections for staff who report alleged or suspected assaults. In relation to a disclosure about suspected abuse, a staff member will be protected from: ■■ civil or criminal liability ■■ being victimised ■■ liability in an action for defamation ■■ having a contract, including an employment contract, terminated. A staff member who discloses information about the suspected abuse will qualify for the protections if: ■■ the person is a staff member of the approved provider of the facility in which the suspected abuse occurred, and ■■ the disclosure is made to one or more of the people listed above, and ■■ the person making the disclosure states their name to the person they are reporting to before making the report, and ■■ the person making the disclosure has reasonable grounds to suspect that a reportable assault has occurred and ■■ the person makes the report in good faith. A staff member may also make an anonymous or confidential report to the Aged Care Complaints Commissioner. However, the protections outlined above will not apply in this situation. Visit the Aged Care Complaints Commissioner’s website at www.agedcarequality.gov.au

The mandatory reporting requirements and protections do not apply to aged care residents, their families, visiting medical practitioners, volunteers or visitors.

Unexplained absences (missing residents) If a resident is absent and the service is unaware of reasons for the absence approved providers are required to report the missing resident to the police within a reasonable timeframe so an appropriate response and action can be taken to locate the resident. This is required under section 25 of the Accountability Principles 2014 as legislated by the Aged Care Act 1997 (see section 63-1 (1) (m)). If a resident is absent from the service, the absence is unexplained and the absence has been reported to the police, approved providers are required to tell the department about the missing resident within 24 hours of reporting the absence to the police. NURSES AND THE LAW 5th EDITION 81

Mandatory reporting

If an approved provider fails to meet compulsory reporting requirements the department may take compliance action. However, there is no requirement for providers to report to the department if the care recipient was returned to the service before their absence was reported to police. But, providers must report to the department if the police are aware of the care recipient’s absence or where the care recipient has been returned to the service by the police.

Reporting to the Department of Health To report a suspicion or allegation made of a reportable assault, an approved provider must within 24 hours: ■■ complete a reportable assault form or an unexplained absence form and email to compulsoryreports@health.gov or ■■ call the compulsory reporting line on 1800 081 549. Note: it is the Department’s preference that a written form be submitted. Since the introduction of mandatory reporting in aged care in 2007, the QNMU has been contacted by a number of members who have become the subject of allegations that they have abused residents. Members should contact the QNMU before talking to the police or responding to an allegation to their employer. Some employers have tried to discipline members for not making a report of suspected assault to the Department. 82 NURSES AND THE LAW 5th EDITION

Whenever this occurs, members should advise their superiors that the mandatory obligation to report is upon the approved provider, not individual staff members.

How is compliance with the requirements monitored? The Australian Aged Care Quality Agency is responsible for monitoring an approved provider’s compliance with the compulsory reporting requirements (previously this work was done by the Aged Care Standards and Accreditation Agency). For more details visit www.agedcarequality.gov.au

Child protection Who is mandated to make a notification? There are different child protection notification requirements in each state of Australia. The groups of people mandated to notify their concerns, suspicions, or reasonable grounds to the statutory child protection authorities range from a limited number of specified persons in specified contexts in some states through to every adult in other states. Queensland has a list of particular occupational groups that may come into contact with children who are required to mandatorily report in certain circumstances. In Queensland, the relevant legislation is the Child Protection Act 1999 and the Public Health Act 2005. In Queensland, the groups of people having mandatory reporting obligations are: ■■ registered nurses who become aware, or reasonably suspect during the practice of

his or her profession that a child has been, is being or is likely to be, harmed ■■ doctors who become aware, or reasonably suspect during the practice of his or her profession that a child has been, is being or is likely to be harmed ■■ a teacher ■■ a police officer who, under a direction given by the commissioner of the police service under the Police Service Administration Act 1990, is responsible for reporting ■■ a person engaged to perform a child advocate function under the Public Guardian Act 2014 ■■ an early childhood education and care professional ■■ officers and employees of the Department administering the Child Protection Act ■■ a person employed in a Departmental care service (a care service to accommodate children in the Department’s custody or guardianship or other children in need of protection) or licensed care service ■■ an authorised person holding office under the Child Protection Act 1999. In addition to state and territory law, there are provisions within federal legislation that relate to mandatory reporting. Under the Family Law Act 1975, personnel from the Family Court of Australia and the Federal Magistrates Court also have reporting obligations in all Australian jurisdictions. This includes registrars, family counsellors, family dispute resolution practitioners or arbitrators, and lawyers independently representing children’s interests.

What is required? If you become aware, or reasonably suspect during the practice of your profession that a child has been, is being or is likely to be harmed, and, as far as you aware, no other nurse or doctor has made a notification about the harm or likely harm, the Public Health Act requires that you immediately give notice of the harm or likely harm to the Chief Executive (Child Safety). “Harm” is defined as any detrimental effect of a significant nature on the child’s physical, psychological or emotional wellbeing. It is immaterial how the harm is caused — it can be physical, psychological, or emotional abuse or neglect or sexual abuse or exploitation. Action can be taken before the birth of a child if the child may need protection after they are born. The notice should include: a. the following information, to the extent the nurse has it or can reasonably obtain it — ◆◆ the child’s name ◆◆ the child’s date of birth NURSES AND THE LAW 5th EDITION 83

Mandatory reporting

◆◆ the place or places where the child lives ◆◆ the names of the child’s parents ◆◆ the place or places where the parents live or maybe contacted and b. details of the harm or likely harm of which the nurse is aware or that the nurse suspects and c. the nurse’s name, address and telephone number. Failing to make a notification when required to do so could attract a substantial fine.

Are notifiers protected? In most states, notifiers are explicitly protected. In Queensland, the Child Protection Act provides that a person who, acting honestly, notifies authorities of their suspicion that a child has been, is being or is likely to be harmed, or an unborn child may be at risk of harm after he or she is born, is not liable, civilly, criminally or under an administrative process for giving the notification or information. Also, merely because the person gives the notification or information, the person cannot be held to have breached any code of professional conduct or ethics, or departed from accepted standards of professional conduct. There are obligations on the person receiving the notification to keep the identity of the notifier confidential, except in certain limited circumstances.

yourself. There are short timeframes in which this should occur. Section 130 of the National Law provides that health practitioners must give AHPRA notice of certain ‘relevant events’, once they become aware of them. In relation to registered health practitioners, a report must be made to AHPRA in the following circumstances: ■■ if the practitioner is charged with an offence that can be punished by 12 months imprisonment or more (whether or not any period of imprisonment is likely—note that many offences fall into this category, including making a false declaration on your annual renewal or registration application) or ■■ the practitioner is convicted of or the subject of a finding of guilt for an offence, able to be punished by any period of imprisonment (regardless of whether any period of imprisonment is imposed or any conviction is recorded) or ■■ appropriate professional indemnity insurance arrangements are no longer in place in relation to the practitioner’s practice of the profession. (Financial members of the QNMU have appropriate professional indemnity insurance as part of their membership) or

Obligation to report certain events to AHPRA

■■ the practitioner’s right to practise at a hospital or another facility at which health services are provided is withdrawn or restricted because of the practitioner’s conduct, professional performance or health or

In certain circumstances, you may be required to make a report to AHPRA about events that have occurred in relation to

■■ the practitioner’s billing privileges are withdrawn or restricted under the Medicare Australia Act 1973 because of

Nursing and Midwifery Board of Australia mandatory reporting

84 NURSES AND THE LAW 5th EDITION

the practitioner’s conduct, professional performance or health or

health, conduct or performance action against the practitioner or student.

■■ the practitioner’s authority under a law of a state or territory to administer, obtain, possess, prescribe, sell, supply or use a scheduled medicine or class of scheduled medicines is cancelled or restricted or

If you are required to make a report to AHPRA, we strongly recommend you first seek advice from the QNMU.

■■ a complaint is made about the practitioner to certain entities, such as Medicare, or entities having functions relating to professional services provided by health practitioners or

You are also required to tell AHPRA if you change address or principal place of practice, or if you change your name. This should be done within 30 days.

Obligation to report other health practitioners to AHPRA or the Health Ombudsman

■■ the practitioner’s registration under the law of another country that provides for the registration of health practitioners is suspended or cancelled or made subject to a condition or another restriction.

In some circumstances, a health practitioner may be required to report another health practitioner to AHPRA or the Health Ombudsman.

In relation to a student, a report must be made to AHPRA in the following circumstances:

Under the National Law (section 141), a health practitioner, employer, or education provider who forms a reasonable belief that another health practitioner, or student, has engaged in “notifiable conduct” is required to make a report as soon as practicable.

■■ the student is charged with an offence able to be punished by 12 months imprisonment or more (even if a period of imprisonment is unlikely — note that many offences fall into this category) or ■■ the student is convicted of or the subject of a finding of guilt for an offence able to be punished by any period of imprisonment (regardless of whether any period of imprisonment is imposed or any conviction is recorded) or ■■ the student’s registration under the law of another country that provides for the registration of students has been suspended or cancelled. Health practitioners are required to make the reportto AHPRA within seven days of the event occurring. Failure to do this may lead to

The general obligation

In Queensland, these reports are now made to the Health Ombudsman, rather than to AHPRA. The obligation applies across professions—for example, a nurse or midwife may be required to make a report about a doctor, or vice versa. The

If you are required to make a report to AHPRA, we strongly recommend you first seek advice from the QNMU. NURSES AND THE LAW 5th EDITION 85

Mandatory reporting

mandatory reporting obligations are the same for each of the registered professions. The National Law also provides for voluntary reporting. The information below deals solely with health practitioners’ mandatory reporting obligations. The threshold to require a health practitioner to mandatorily report another health practitioner is high (see section below, What is a reasonable belief?), and will only arise in certain limited situations (see section below, What is notifiable conduct?). If the matter is not “notifiable conduct” as defined in the National Law, or the health practitioner does not have the required “reasonable belief”, no mandatory report is required. The Boards for each of the health professions (such as the NMBA and Medical Board) have each issued comprehensive Guidelines for Mandatory Notifications, available on the AHPRA website which include decision guides and flow charts. Visit the AHPRA website www.ahpra.gov.au These guidelines provide good guidance to health practitioners. The information below is based on those guidelines, and the National Law. What is “Notifiable Conduct”? “Notifiable conduct” is defined in the National Law. Section 140 of the National Law defines notifiable conduct as where a health practitioner has: a. practiced the practitioner’s profession while intoxicated by alcohol or drugs or 86 NURSES AND THE LAW 5th EDITION

b. engaged in sexual misconduct in connection with the practice of the practitioner’s profession or c. placed the public at risk of substantial harm in the practitioner’s practice of the profession because the practitioner has an impairment or d. placed the public at risk of harm because the practitioner has practiced the profession in a way that constitutes a significant departure from accepted professional standards. If the issue is not any of the matters listed above, it does not need to be mandatorily reported. While other matters may be voluntarily notified, if the matter does not constitute “notifiable conduct”, it does not need to be mandatorily reported. What is a reasonable belief? The threshold to require a health practitioner to mandatorily report another health practitioner is high. The guidelines state that “Making a mandatory notification is a serious step to prevent the public from being placed at risk of harm and should only be taken on sufficient grounds”. The guidelines also state: “A reasonable belief requires a stronger level of knowledge than a mere suspicion. Generally, it would involve direct knowledge or observation of the behaviour which gives rise to the notification, or, in the case of an employer, it could also involve a report from a reliable source or sources. Mere speculation, rumours, gossip or innuendo are not enough to form a reasonable belief.” (emphasis added)

The guidelines also state that “a reasonable belief has an objective element — that there are facts that could cause the belief in a reasonable person; and a subjective element — that the person making the notification actually has that belief”. If the health practitioner does not have a reasonable belief that another practitioner has engaged in notifiable conduct, the mandatory reporting obligation does not arise. Types of notifiable conduct 1. Practice while intoxicated by alcohol or drugs (section 140(a)) ◆◆ There is no definition within the National Law as to what constitutes intoxication. However, the guidelines provide that Boards such as the NMBA will consider a practitioner to be intoxicated “where their capacity to exercise reasonable care and skill in the practice of the health profession is impaired or affected as a result of being under the influence of drugs or alcohol”. ◆◆ Where a practitioner consumes drugs or alcohol outside of their practice or the work environment, and this consumption does not interfere in their ability to undertake their duties in the profession, this does not constitute a ground for mandatorily reporting the practitioner under section 140(a) of the National Law. ◆◆ Remember, a practitioner must have a “reasonable belief” that the practitioner has practised the profession whilst intoxicated before the mandatory reporting obligation arises — gossip and innuendo are not enough to form a reasonable belief. NURSES AND THE LAW 5th EDITION 87

Mandatory reporting

2. Sexual misconduct in connection with the practice of the profession (section 140(b)) ◆◆ If a health practitioner holds a reasonable belief that another health practitioner has engaged in sexual activity with a current patient or client, they will be required to make a mandatory notification. In some cases, engaging in sexual activity with a former patient, or relative of a patient may also constitute sexual misconduct in connection with the practice of the profession. Sexual misconduct could also include making sexual remarks, touching patients in a sexual way, or engaging in sexual behaviour in front of a patient. 3. Placing the public at risk of substantial harm in the practitioner’s practice of the profession because the practitioner has an impairment (section 140(c)) ◆◆ The National Law defines impairment as a physical or mental impairment, disability, condition or disorder (including substance abuse or dependence) that detrimentally affects or is likely to detrimentally affect the person’s capacity to practice the profession. ◆◆ In order to be required to mandatorily report a fellow practitioner with an impairment, a health practitioner must form a reasonable belief that the health practitioner poses a risk of substantial harm to the public. The Guidelines provide that “substantial harm” would mean “considerable harm such as a failure to correctly or appropriately diagnose or treat because of the impairment”. The test is high. 88 NURSES AND THE LAW 5th EDITION

◆◆ An example of a matter which may require a notification is where a health practitioner, as a consequence of illness, has a cognitive impairment which means that they cannot practice effectively. ◆◆ Not every impairment needs to be notified to AHRPA or the Health Ombudsman. If a practitioner’s impairment is being appropriately managed, such that the public are not placed at risk of substantial harm, a notification will not be required. ◆◆ The Health Ombudsman Act amends the mandatory reporting obligation for treating health practitioners in Queensland (this includes all types of registered health practitioners, including doctors, nurses, psychologists, etc). The Health Ombudsman Act provides that the mandatory reporting obligation does not apply in certain circumstances where one health practitioner is treating another health practitioner (in the same or a different profession). ◆◆ The legislation provides that: ■■ when one health practitioner (e.g. Nurse A) forms the required reasonable belief that another health practitioner (e.g. Nurse B) has engaged in notifiable conduct as a result of Nurse A providing a health service to Nurse B and ■■ where Nurse A reasonably believes that the notifiable conduct relates to an impairment which will not place the public at substantial risk of harm, and is not professional misconduct.

◆◆ Nurse A will not be required to make a mandatory notification to the Health Ombudsman about Nurse B. ◆◆ In addition, mandatory notification will not be required in the following cases: ■■ the practitioner practices safely ■■ the practitioner’s employer has put safeguards in place to monitor the practitioner, which prevent the risk of substantial harm arising ■■ the practitioner’s employer has provided reasonable adjustments to the way in which the health practitioner discharges their duties to accommodate the practitioner’s impairment, such that the public are not placed at risk of substantial harm ■■ the practitioner is receiving appropriate treatment which ensures the public are not placed at risk of substantial harm ■■ the practitioner is appropriately managing their own health condition in a way that ensures the public are not placed at risk of substantial harm ■■ the practitioner is not practicing, and will not return to practice until the health matter is appropriately managed. 4. Placing the public at risk of harm because the practitioner has practiced in a way that constitutes a significant departure from accepted professional standards (section 140(d)) ◆◆ Health practitioners may make a mandatory notification against someone in their own profession, or in another profession. However, to make

a notification against a practitioner in a different profession (e.g. a nurse against a doctor), the practitioner will need to have a sufficient knowledge of that profession and its professional standards to be able to make a judgment about whether there has been a significant departure from those standards. Where the notification is against someone in the practitioner’s own profession (e.g. a nurse against a nurse), forming this judgment may be more straightforward. ◆◆ The departure from accepted professional standards must be significant. A notification should not be made based merely on the fact that one professional differs from another health practitioner in the way in which they discharge their duties. ◆◆ In addition, the notifiable conduct must place the public at risk of harm as well as being a significant departure from accepted professional standards before a notification is required. ◆◆ This ground for notification does not refer solely to the discharge of clinical skills. It also relates to standards of professional behaviour. Exceptions There a number of exceptions in relation to the mandatory reporting obligation. These exemptions include where a practitioner is employed by a professional indemnity insurer, provides advice about legal proceedings, or is exercising functions as a member of a quality assurance committee, council or other similar body approved or authorised under legislation. NURSES AND THE LAW 5th EDITION 89

Mandatory reporting

Employers should have a policy and procedure in place and provide training to ensure compliance with the mandatory reporting requirement. Another exception to the requirement to mandatorily notify is where a practitioner reasonably believes someone else has already made a notification (e.g. the practitioner’s employer). For example, if a practitioner has reported notifiable conduct to their manager and reasonably believes their manager has notified the Health Ombudsman, the practitioner will be not be required to make a notification themselves. There is also an exception for health practitioners when providing care to another health practitioner. If you are providing a health service to a health practitioner who may have engaged in notifiable conduct, you are NOT required to make a complaint or notification if you believe the conduct relates to an impairment that will not place the public at substantial risk of harm and is not professional misconduct.

90 NURSES AND THE LAW 5th EDITION

What protections exist for people making mandatory notifications? The National Law provides protection to health practitioners who mandatorily report another health practitioner, provided the notification is made “in good faith”. The guidelines provide that good faith has “its ordinary meaning of being well intentioned or without malice”. The National Law (section 237) protects health practitioners who mandatorily report another health practitioner from any civil, criminal and administrative liability, including defamation, provided the notification is made in good faith. Further, the National Law states that making a notification in good faith will not constitute a breach of professional etiquette or ethics, or a departure from accepted standards of professional conduct.

Consequences for health practitioners who fail to notify A health practitioner who fails to make a mandatory notification in relation to notifiable conduct could be liable for health, conduct or performance action by their National Board or the Health Ombudsman. Employers should have a policy and procedure in place and provide training to ensure compliance with the mandatory reporting requirement. If after reviewing your employer’s policies and procedures you remain unsure of your obligations you should contact the QNMU. Mandatory reporting in relation to impaired students The mandatory reporting obligations in relation to students are different to the obligations to mandatorily report registered health practitioners. A health practitioner is required to make a mandatory notification in relation to a student where a student has an impairment which, in the course of the student undertaking clinical training, may place the public at substantial risk of harm. See previous in relation to impairments and substantial risk of harm. Education providers also have mandatory reporting obligations in relation to students. Further questions If you have any further questions, you can refer to the Guidelines for Mandatory Notifications, available on the AHPRA website or contact the QNMU. Visit the AHPRA website www.ahpra.gov.au

Queensland Public Sector Employees Obligation to give notice of a charge or conviction of an indictable offence. Under section 181 of the Public Service Act 2008 (Queensland) an employee is required to give notice of charge or conviction for an indictable offence. These requirements are applied to health service employees under section 2 part 2 of the Public Service Regulation 2008. Notice must be given to the chief executive immediately, however under Queensland Health Policy E 4 (QH-POL -127) an employee has up to 48 hours to notify. The notice must include: ■■ if charged - the details of the alleged offence, or ■■ if convicted of an indictable offence— notice that you have been convicted, and ■■ the details of the offence, and ■■ the penalty imposed. Notification of a charge or conviction is required irrespective of whether the offence was committed in Australia or in another country. Under the Queensland Health Policy, being ‘charged with an offence’ includes being charged with an offence; being served with a Notice to Appear (indictment) or being served a Summons to appear in a court to answer an alleged offence ‘Being convicted’ is defined as a finding of guilt and includes a finding that ‘no conviction be recorded’. An indictable offence is defined in the policy as an offence for which a charge may be laid by indictment or an equivalent process, NURSES AND THE LAW 5th EDITION 91

Mandatory reporting

whether that is the only or an optional way to lay a charge of the offence. The Criminal Code Act specifies that offences may be criminal offences or regulatory offences. Criminal offences comprise crimes, misdemeanours and simple offences. Only offences designated as crimes and misdemeanours are indictable offences. When a person has been summarily convicted of an indicatable offence, the conviction is deemed a conviction of a simple offence only, and not an indictable offence, however the exception is convictions under the Drugs Misuse Act which are indictable offences (see Policy E 4 QH).

Other requirements

of Conduct but should an actual or perceived conflict of interest arise, an employee must promptly identify and disclose any conflict of interest that might affect, or might be perceived to affect, the proper performance of their work. Public sector employees also need to refer to PSC Directive 3/10 – Declaration of Interests – Public Service Employees (other than departmental Chief executives). Failure to disclose a conflict of interest or refusal to take any action directed by the delegate to resolve or manage a conflict of interest, can lead to disciplinary action or possibly referral to the Crime and Corruption Commission,

Conflict of Interests/ Declaration of interests

Gifts and benefits

The Public Sector Ethics Act 1994 requires public sector employees to act with integrity and impartiality. Section 6(d) states an employee must:

Public service employees cannot be offered, accept, or give gifts and benefits that affect, could affect, or be perceived to affect their doing their jobs impartially. All gifts and other benefits received as part of official duties must be declared.

acknowledge the primacy of the public interest and undertake that any conflict of interest issue will be resolved or appropriately managed in favour of the public interest. Under Queensland Health Guideline QH: GL 113-1:2017 Department of Health employees must not abuse a position for personal advantage or act in a manner contrary to the Code of Conduct for the Queensland Public Service. All employees are required to avoid any conflicts of interest they encounter. A conflict can arise from avoiding personal losses or gaining personal advantage. Having a conflict of interest or a perceived conflict of interest is not a breach of the Code 92 NURSES AND THE LAW 5th EDITION

Any gift or benefit valued at more than $150 must be reported. Any offer of cash, or items which can be readily converted into cash (e.g. lottery tickets, ‘scratchies’, shares, store gift cards) must be refused. (see Guideline QH:GL 113-1:2017) All agencies must record gifts and benefits received or given with a retail value of more than $150 in a central Gifts and Benefits Register which is to be published quarterly.

Employment issues T

he laws governing your rights and obligations at work can be quite complex. Because of the significance of work in daily life, for many people the working relationship becomes one of the most important relationships they will have. The QNMU offers members extensive advice and assistance on industrial laws, enterprise bargaining, award entitlements and employment contracts.

Contracts can be oral or in writing, or a combination of both. Oral contracts are very difficult to enforce because there is no clear record of what was agreed. Usually, your offer of a job will be contained in a letter of appointment. The information contained in the letter will form part of your contract of employment.

In this chapter, we look at some key employment concepts you should be aware of.

Contract of employment When you are offered a job, and you accept that offer, a contract of employment is formed. This establishes certain rights and obligations for both you and your employer. Some of these are governed by the terms of the contract, some are implied into the contract by the common law and some rights and obligations are imposed by legislation, like the federal Fair Work Act 2009 in the private system and the state Industrial Relations Act 2016 in the public system.

The QNMU offers members extensive advice and assistance on industrial laws, enterprise bargaining, award entitlements and employment contracts. NURSES AND THE LAW 5th EDITION 93

Employment issues

These will be the express terms of your contract of employment. At the very least such a letter should specify: ■■ the type of employee you will be (i.e. be fulltime, part-time, casual, temporary or fixed term) ■■ the relevant industrial instrument ■■ what probationary or minimum employment period will apply ■■ your classification and pay level as well as your rate of pay ■■ the start date of your employment. If you are part-time the letter should also specify the minimum guaranteed hours per week (or, in some cases, the hours on which days) you will be expected to work. In addition to the obligations expressly stated in your contract of employment, the common law also applies a number of obligations to your contract of employment. These include duties of good faith and fidelity, trust and confidence, and obedience. Please note that although most nurses and midwives work under a contract of employment as employees, a small minority of nurses and midwives may work under a contract for services as ‘independent contractors’. Genuine independent contractors do not have the same rights or entitlements as employees and may also have additional obligations. For example, independent contractors are generally paid a flat hourly rate for their work and are not entitled to annual leave or sick leave or superannuation. 94 NURSES AND THE LAW 5th EDITION

If you have any doubt about whether you are being offered a contract of employment or a contract for services you should contact the QNMU for advice. Do not be pressured into agreeing to a contract before seeking advice. TIP: Ensure you have a copy of the contract of employment or terms in a letter and sufficient time to get advice before you sign it or give notice of resignation in your current employment.

The National Employment Standards (NES) In July 2009, the federal government’s Fair Work Act 2009 introduced improved protections for employees in the workplace. These included the National Employment Standards (NES), These are 10 entitlements an employee has which are contained in and protected by legislation. This means that a contract of employment, award, Enterprise Agreement or any other industrial instrument cannot provide for less than the NES, and if they do, the NES overrides it to the extent that they are less favourable. The NES apply to employees in the federal industrial relations jurisdiction, which does not include Queensland Health or Local Government. The 10 National Employment Standards are: 1. Maximum weekly hours of work – 38 hours per week, plus reasonable additional hours. 2. Requests for flexible working arrangements — some employees have the right to ask for

flexible working arrangements, which can only be refused in certain circumstances. 3. Parental leave and related entitlements – up to 12 months unpaid leave for every employee, plus a right to request an additional 12 months unpaid leave, plus other forms of maternity, paternity and adoption related leave. 4. Annual leave – four weeks paid leave per year, plus an additional week for certain shift workers. (Note that the Nurses Award 2010 provides an additional week of leave on top of this). 5. Personal / carer’s leave and compassionate leave – 10 days paid personal (sick) / carer’s leave, two days unpaid carer’s leave as required, and two days compassionate leave (unpaid for casuals) as required. 6. Community service leave – unpaid leave for voluntary emergency activities and leave for jury service, with an entitlement to be paid for up to 10 days for jury service. 7. Long service leave (LSL) – is a period of leave paid to employees who have worked for the same employer for a period of continuous service of 10 years. Public holidays – a paid day off (unpaid for casuals) on a public holiday, except where reasonably requested to work. 8. Notice of termination and redundancy pay – up to four weeks’ notice of termination (five weeks if the employee is over 45 and has at least two years of continuous service) and up to 16 weeks redundancy pay, both based on length of service. 9. Provision of a Fair Work Information Statement – employers must provide this statement to all new employees.

The NES apply to employees in the federal industrial relations jurisdiction, which does not include Queensland Health or Local Government. It contains information about the NES, modern awards, agreement-making, the right to freedom of association, termination of employment, individual flexibility arrangements, rights of entry, transfer of business, and the respective roles of the Fair Work Commission and the Fair Work Ombudsman.

The Queensland Employment Standards (QES) The new Industrial Relations Act 2016 commenced on 1 March 2017 and included minimum standards that apply to the employment of all State government employees (including Queensland Health) and Local Government Authorities (i.e. local Councils). The QES can be found in Part 3 of the Industrial Relations Act 2016. There are 15 entitlements that have been legislated as minimum standards. Similar to the NES, a contract of employment, award, Enterprise Agreement or any other industrial instrument cannot provide for less than the QES, and if it does, the QES overrides it to the extent that they are less favourable. NURSES AND THE LAW 5th EDITION 95

Employment issues

The 15 Queensland Employment Standards are: 1.

Minimum wage – a wage declared by the Queensland Industrial Relations Commission.

2. Maximum weekly hours– 38 hours per week, plus reasonable additional hours. 3. Flexible working arrangements – all employees have the right to request flexible working arrangements. The employer can only refuse the request on reasonable grounds. 4. Annual leave – four weeks paid leave per year, plus an additional week for certain shift workers. (Note that the Nurses Award 2010 provides an additional week of leave on top of this). 5. Personal leave - including sick leave and carer’s leave,–10 days paid / leave which can be used as sick or carer’s leave. Two days unpaid carer’s leave for casual employees. 6. Bereavement and compassionate leave - two days paid leave for permanent employees and two days unpaid leave for casuals). For all employees, an amount of unpaid bereavement leave if an employee reasonably requires time to travel to and from the funeral or other ceremony for the death. 7. Cultural leave - employees who are required by Aboriginal tradition or Island custom to attend an Aboriginal or Torres Strait Islander ceremony may take up to five days unpaid cultural leave each year which the employer cannot unreasonably refuse. 8. Domestic and family violence leave – 10 days of domestic and family violence leave 96 NURSES AND THE LAW 5th EDITION

per year if an employee has experienced domestic violence and needs to take leave as a result of the domestic violence. Long term casuals are entitled to 10 unpaid days per year, and short term casuals are entitled to two. 9. Parental leave – up to 12 months unpaid leave for every employee, plus a right to request an additional 12 months unpaid leave, plus other forms of maternity, spousal, surrogacy and adoption related leave. 10. Long service leave – an entitlement that accrues proportionately on the passing of time and on completion of at least ten years of continuous service, seven if the employment is terminated. 11. Public holidays – a paid day off on a public holiday, except where reasonably requested to work. 12. Emergency service leave – an entitlement to a reasonable amount of unpaid leave if the employee engages in an emergency management activity and is a member of a recognised emergency management entity. 13. Jury service leave – an entitlement to take leave to perform jury service. The employer must pay the employee the difference between the ordinary rate the employee would have been paid and the amount stated in the jury attendance document for the duration of the jury service duty. 14. Notice of termination and redundancy – certain employees can only be dismissed if they have been given the relevant period of notice or paid compensation. In some circumstances, a minimum notice period is required to be provided by an employer if the employee has had continuous service.

Entitlement to redundancy pay of up to 16 weeks where applicable. 15. Information statements and information for employees – there is a requirement for the employer to give new employees an information statement outlining employment entitlements and other matters within Queensland’s industrial relations system. Employees also must be provided with a document specifying the name of their industrial instrument.

Industrial instruments Usually, the terms of your employment will be governed by an industrial instrument, such as the Nurses Award 2010 and an Enterprise Agreement. These industrial instruments are separate to your contract of employment (see Byrne v Australian Airlines (1995) 185 CLR 410) but your contract of employment cannot take away the conditions in these industrial instruments.

However, some terms of an industrial instrument can be offset by higher wages in a contract of employment. Awards and Enterprise Agreements are legally enforceable documents that set out most of the detail of you and your employer’s rights and obligations. The terms of your employment usually set out in industrial instruments include, but are not limited to the following: ■■ wages ■■ hours of work (including breaks) ■■ termination, change and redundancy ■■ penalties ■■ allowances ■■ types of leave ■■ superannuation ■■ consultative arrangements ■■ dispute and grievance resolution processes.

Usually, the terms of your employment will be governed by an industrial instrument, such as the Nurses Award 2010 and an Enterprise Agreement. NURSES AND THE LAW 5th EDITION 97

Employment issues

The following are types of industrial instruments you could be employed under:

an Enterprise Agreement applicable to their employment.

■■ State Awards — made by the Queensland Industrial Relations Commission (QIRC), covering employees and employers in the state system, also binding one or more unions, such as the Nurses and Midwives Award (Queensland Health) – State 2015.

Most nurses in private hospitals and many in aged care are covered by Enterprise Agreements made under the Fair Work Act 2009.

■■ State Certified Agreements — these are collective agreements in the state system generally negotiated between one or more unions and the employer and then approved by the QIRC. ■■ Federal Awards — made by the Fair Work Commission (FWC) which cover employers and employees in the federal system. ■■ Federal Enterprise Agreements — these are collective agreements made between an employer and employees, which unions can be covered by if they have members and make application to the FWC. When in operation an Enterprise Agreement will apply to an employee in place of the relevant federal award. QNMU Member Connect or your Organiser can provide you advice on the industrial instrument that applies to you.

Modern awards From 1 January 2010, most industries in the federal jurisdiction became subject to a modern award. The QNMU, along with the Australian Nursing and Midwifery Federation (ANMF), fought hard for an award specifically for nurses. The Nurses Award 2010 became operative on 1 January 2010 and applies to nurses in the federal system who do not have any other statutory industrial instrument such as 98 NURSES AND THE LAW 5th EDITION

For example, nurses and midwives employed by Ramsay Health are covered by the Ramsay Health Care Australia Nurses, Midwives and the QNU Enterprise Agreement 2016 – 2019 (FWC ref AG2017/1287). The Nurses Award 2010 does not apply to these nurses whilst this agreement is in operation. In the unlikely event that the agreement was terminated without a replacement agreement, then the Nurses Award 2010 would apply. However, if the Enterprise Agreement is silent on a matter, the Nurses Award 2010 provides the minimum. The Nurses Award 2010 replaced other nursing awards applicable in the federal jurisdiction (private sector) around Australia. NOTE: Registered nurses employed in secondary education institutions are not covered by the Nurses Award 2010. They are covered by the Educational Services (Schools) General Staff Award 2010.

Making a collective agreement The QNMU supports collective agreements and assists members in negotiating and understanding them. Collective agreements also known as Enterprise Agreements deliver the best results for nurses and midwives, including the highest wages. Research shows that workers who negotiate collectively earn more money and have better

If the workers donâ&#x20AC;&#x2122;t approve the agreement, negotiations will need to continue until an agreement is accepted by the workers.

Collective agreements also known as Enterprise Agreements deliver the best results for nurses and midwives, including the highest wages. conditions of employment than workers who negotiate individual contracts or who do not have a strong collective voice in the workplace. In the federal system, under the Fair Work Act 2009, if a majority of workers in a particular workplace want to bargain for an Enterprise Agreement then their employer must bargain. If the employer refuses to bargain, the workers and their union can seek a Majority Support Determination from the Fair Work Commission (FWC) which compels the employer to negotiate. These negotiations must be undertaken in accordance with the good faith bargaining requirements under the Fair Work Act. Workers can also take lawful industrial action during enterprise bargaining. For example, if negotiations reach an impasse, workers can vote to take â&#x20AC;&#x153;protected industrial actionâ&#x20AC;? in pursuit of their claims. Once an agreement has been reached, workers must approve it by a vote before it can be presented to the FWC for approval.

You should let your employer know you want a union negotiated collective agreement. If they do not agree then the QNMU can seek the assistance of the Fair Work Commission, the independent industrial umpire, to help. Speak to your local QNMU Organiser for more information about making a collective agreement.

When things go wrong From time to time disagreements arise between employers and employees. These disagreements can lead to grievances, disciplinary processes or, in the most serious cases, dismissal. Where an employee is unable to resolve a disagreement with their employer, the QNMU is able to assist with advice and other assistance including representation. The Fair Work Commission (FWC) for private sector employees, and the Queensland Industrial Relations Commission (QIRC) for public sector employees, deal with matters such as dismissals and discrimination to assist both employers and employees in resolving disagreements. The QNMU is able to represent members in the FWC and the QIRC. The QNMU can also attempt to resolve some matters directly with the employer prior to an application to the FWC or the QIRC. There are time limits on making a claim. Extensions of time can be granted in limited, exceptional, circumstances but employees should not rely on this as they must meet strict criteria. NURSES AND THE LAW 5th EDITION 99

Employment issues

Dismissal In the case of dismissal, there is state and federal legislation that provides a process for employees who feel they have been unfairly or unlawfully dismissed to seek a remedy. The QNMU can assist with the application and process, including representation, for members who have had their employment terminated unfairly. If you are dismissed it is important to immediately contact the QNMU as there are strict time limits, that apply from the date of dismissal, in which to lodge an application to the FWC or the QIRC as applicable. Unfair dismissal: An unfair dismissal is generally defined as a dismissal that is harsh,

If you are dismissed it is important to immediately contact the QNMU as there are strict time limits 100 NURSES AND THE LAW 5th EDITION

unjust or unreasonable. These words carry their ordinary meaning. The federal unfair dismissal laws are intended to ensure a ‘fair go all round’ for both employees and employers. You are not unfairly dismissed if your position was genuinely made redundant. The matters considered by commissions in determining whether a dismissal is harsh, unjust and unreasonable include such considerations as: ■■ whether there was a valid reason for the termination, that is a reason that is “sound, defensible or well founded” (Selvachandran v Peteron Plastice Pty Ltd (1995) 62 IR 371).

■■ whether the employee was notified of the reason for the dismissal. ■■ if the dismissal related to the employee’s performance, whether the employee was warned about the poor performance prior to the dismissal. ■■ whether the employee was given an opportunity to respond to the allegations of poor performance or misconduct prior to the dismissal. Section 387 of the Fair Work Act 2009 outlines the criteria that must be considered. FWC time limit: In the federal system, you only have 21 days from the date of dismissal to make a claim. You must have been employed for a minimum of six months (12 months if employed by a small business with 15 full-time equivalent staff or less) to be eligible to make a claim. Casuals can make a claim if the employee was employed on a regular and systematic basis and had a reasonable expectation of continuing employment. State employees’ time limit: In the state system, you have 21 days from the date of dismissal to make a claim. You must have been employed for a minimum of three months (twelve months if a casual employed on a regular and systematic basis).

General protections General protections provisions involving dismissal and other unlawful actions are contained in the Fair Work Act 2009 and the Industrial Relations Act 2016 (Qld). General protections provisions protect workplace rights, including freedom of association. They also provide protection from workplace discrimination, and effective relief

for persons who have been discriminated against, victimised, or have experienced other unfair treatment. A person must not take adverse action against another person because the other person: ■■ has a workplace right or ■■ has, or has not, exercised a workplace right or ■■ proposes or proposes not to, or has at any time proposed or proposed not to, exercise a workplace right ■■ is or is not, or was or was not, an officer or member of an industrial association (ie union) ■■ engages, or has at any time engaged or proposed to engage, in lawful industrial activity. A person must not take adverse action against another person to prevent the exercise of a workplace right by the other person.

Workplace rights A workplace right is: ■■ an entitlement to the benefit of, or a role or responsibility under, a workplace law, workplace instrument or order made by an industrial body or ■■ the ability to initiate, or participate in, a process or proceedings under a workplace law or instrument or ■■ the ability to make a complaint or inquiry in relation to their employment or seek compliance with a workplace law from a body such as the Fair Work Commission. Adverse action by an employer against an employee includes dismissing the employee, injuring the employee in their employment, NURSES AND THE LAW 5th EDITION 101

Employment issues

discriminating between the employee and other employees or altering the employee’s position to their prejudice. If this adverse action is committed because you exercised or have a workplace right then you can make an application to the FWC or the QIRC as applicable to deal with the matter. The QNMU can also attempt to resolve some matters directly with the employer prior to an application to the FWC or the QIRC.

Freedom of association/industrial activity An employer must not take adverse action because an employee seeks to be represented by a union. An employer that denies a member access to union representation is in breach of the general protections provisions.

Discrimination An employer must not take adverse action against a person who is an employee, or prospective employee, of the employer because of the person’s race, colour, sex, sexual orientation, age, physical or mental disability, marital status, family or carer’s responsibilities, pregnancy, religion, political opinion, national extraction or social origin.

Unfair treatment Coercion

An employer that organises or takes, or threatens to organise or take, any action against an employee with intent to coerce the employee is in breach of the general protections provisions if done for the following reasons: ■■ the exercise or non-exercise, or proposal to exercise or not exercise, a workplace right, or ■■ the exercise, or proposal to exercise, a workplace right in a particular way. 102 NURSES AND THE LAW 5th EDITION

Undue influence or pressure An employer must not exert undue influence or undue pressure on an employee in relation to a decision by the employee to: ■■ make, or not make, an agreement or arrangement under the relevant Employment Standards, or ■■ make, or not make, an agreement or arrangement under a term of a modern award or Enterprise Agreement that is permitted to be included in the award or agreement, or ■■ agree to, or terminate, an individual flexibility arrangement, or ■■ accept a guarantee of annual earnings; or ■■ agree, or not agree, to a deduction from amounts payable to the employee in relation to the performance of work. Misrepresentations An employer must not knowingly or recklessly make a false or misleading representation about: ■■ the workplace rights of another person, or ■■ the exercise, or the effect of the exercise, of a workplace right by another person.

Domestic violence Queensland legislation also provides general protection for domestic violence under section 296 of the Industrial Relations Act 2016. The section provides that: An employer must not take adverse action against a person who is an employee, or prospective employee, of the employer because someone has committed, or is committing, domestic violence against the person.

An employer must not take adverse action against a person who is an employee, or prospective employee, of the employer because someone has committed, or is committing, domestic violence against the person.

The key element in a general protections claim regarding workplace rights is that the adverse action must have been taken against the employee because of the employee’s workplace right. The court must find that the ‘real reason’ for the employer taking adverse action against the employee is because of the employee’s workplace right, or union activities. Onus of proof reversed: The employer must prove that the adverse action was not because of the employees workplace right. Time limit: If you have been subjected to the adverse action of dismissal because you had or exercised a workplace right, or for another protected reason, you have 21 days from the date of dismissal to make an application. There is a six-year time limit on taking action in relation to adverse action which was not a dismissal.

Anti-discrimination laws In addition to protections from discrimination found in section 351 of the Fair Work Act 2009 or section 295 of the Industrial Relations Act 2016 (Qld), employees in Queensland can also make complaints to the Anti-Discrimination Commission Queensland (ADCQ) under the Anti Discrimination Act (Qld) 1999 or the Australian Human Rights Commission (AHRC) under the relevant federal legislation. The following federal legislation covers discrimination in employment across Australia: ■■ Age Discrimination Act 2004 ■■ Australian Human Rights Commission Act 1986 ■■ Disability Discrimination Act 1992 ■■ Racial Discrimination Act 1975 ■■ Sex Discrimination Act 1984 NURSES AND THE LAW 5th EDITION 103

Employment issues

The QNMU can also attempt to resolve some matters directly with the employer prior to an application to the ADCQ. Throughout this section we will refer to the Anti-Discrimination Act 1999 (ADA) to provide examples and definitions. Please note the provisions may vary between other state and the federal Acts. Attributes Anti-discrimination legislation has slightly different ways of describing attributes that are covered for discrimination. Not all discrimination is unlawful/covered by legislation. For example, the attributes contained in the ADA are: ■■ sex ■■ relationship status ■■ pregnancy ■■ parental status ■■ breastfeeding ■■ age ■■ race ■■ impairment

10 and 11 of the ADA provide examples of a definition of direct and indirect discrimination. Generally direct discrimination occurs if a person treats, or proposes to treat, a person with an attribute less favourably than another person without the attribute is or would be treated in circumstances that are the same or not materially different. For example, a person could be directly discriminated against if an employer did not hire them because they were a woman. Indirect discrimination on the basis of an attribute happens if a person imposes, or proposes to impose an unreasonable rule, policy, or similar that has a disproportionate impact on persons with an attribute. An example of indirect discrimination could be a workplace that only has stairs to enter and cannot be accessed by a wheelchair user. Whether a term is reasonable depends on all the relevant circumstances of the case, including, for example the consequences of failure to comply with the term, the cost of alternative terms and the financial

■■ religious belief or religious activity ■■ political belief or activity ■■ trade union activity ■■ lawful sexual activity ■■ gender identity ■■ sexuality ■■ family responsibilities, and ■■ association with, or relation to, a person identified on the basis of any of the above attributes. Type of discrimination Some of these laws also describe both indirect and direct discrimination. Sections 104 NURSES AND THE LAW 5th EDITION

Discrimination is only unlawful if it occurs in a specific area such as employment or education.

circumstances of the person who imposes, or proposes to impose, the term. Areas of activity

d. by denying access to a guidance program, an apprenticeship training program or other occupational training or retraining program

Discrimination is only unlawful if it occurs in a specific area such as employment or education. Under the ADA these are known as areas of activity.

e. in developing the scope or range of such a program

The most relevant areas for nurses and midwives are in the pre-work, work and employment agency area. The ADA provides useful examples of areas of unlawful discrimination.

Section 23 of the ADA prohibits a nursing agency or other employment agency from discriminating —

Section 14 of the ADA covers the pre-work area and provides that a person must not discriminate — a. in the arrangements made for deciding who should be offered work b. in deciding who should be offered work c. in the terms of work that is offered, including, for example, a term about when the work will end because of a person’s age d. in failing to offer work e. by denying a person seeking work access to a guidance program, an apprenticeship training program or other occupational training or retraining program f. in developing the scope or range of such a program. Section 15 of the ADA covers the work area and makes it unlawful for a person to discriminate — a. in any variation of the terms of work b. in denying or limiting access to opportunities for promotion, transfer, training or other benefit to a worker c. in dismissing a worker

f. by treating a worker unfavourably in any way in connection with work.

a. by failing to supply a service of the business, whether to a person seeking work or an employer seeking a worker b. in the terms on which a service is offered or supplied c. in the way in which a service is supplied d. by treating a person seeking work or an employer seeking a worker unfavourably in any way in connection with a service. Exemptions There are some exemptions that apply in all jurisdictions. While you might be discriminated against, if there is an exemption the discrimination will be lawful. One example of an exemption frequently raised by employers in response to disability discrimination complaints is that a genuine occupational requirement exists in relation to a position which a complainant cannot satisfy. The onus is on the employer to prove that this genuine occupational requirement exists. If you believe that you have been discriminated against on the basis of an attribute, contact the QNMU for advice.

NURSES AND THE LAW 5th EDITION 105

Employment issues

Sexual harassment Sexual harassment is unlawful. It can have a damaging impact on the victim and, consequentially, the workplace. The QNMU believes that no nurse or midwife should be subjected to or accept unwelcome behaviour of a sexual nature in the workplace. Laws prohibiting sexual harassment have been introduced by both the Commonwealth Government, by way of the Sex Discrimination Act 1984, and by all state governments. In Queensland, the relevant legislation is the Anti-Discrimination Act 1991 (ADA). Section 118 of the ADA provides that a person must not sexually harass another person. Section 119 of the ADA defines sexual harassment as occurring if a person: ■■ subjects another person to an unsolicited act of physical intimacy, or

106 NURSES AND THE LAW 5th EDITION

■■ makes an unsolicited demand or request (whether directly or by implication) for sexual favours from the other person, or ■■ makes a remark with sexual connotations relating to the other person, or ■■ engages in any unwelcome conduct of a sexual nature in relation to the other person; and ■■ engages in the conduct described above with the intention of offending, humiliating, or intimidating the other person or if a reasonable person would have anticipated the possibility that the other person would be offended, humiliated or intimidated by the conduct. In order to achieve the ADA’s objective regarding eliminating discrimination and harassment, and promoting equality of opportunity by protecting from sexual

harassment, the scope of behaviour which could constitute sexual harassment is very broad. The ADA provides that in addition to the obvious conduct of unsolicited physical intimacy (e.g. touching, groping, kissing etc), sexual comments and innuendo, any unwelcome conduct of a sexual nature is prohibited. The courts have held that a wide range of conduct constitutes sexual harassment, including: a. repeated requests for sexual favour from a co-worker b. pornographic calendars in the workplace c. pornographic videos or images displayed on a co-worker’s computer to other employees d. groping, touching, brushing against a coworker e. sexually suggestive remarks to a co-worker at work or while in employer provided accommodation after work f. intrusive questions regarding a co-worker’s love-life. The courts will also consider the circumstances in which the alleged behaviour occurred. In determining whether a reasonable person would have anticipated the possibility that the person subject to the conduct would have been offended, humiliated, or intimidated by the behaviour, the court will consider such factors as the age, sex, impairment and race of the parties and their relationship, for example, whether the alleged harasser was in a senior position to the victim.

What is important to note is that it is not a person’s individual opinion of whether their conduct was offensive, but whether a reasonable person would have anticipated the possibility. It has also been held that the existence of workplace banter of a sexual nature as part of the workplace culture does not prevent behaviour of a sexual nature from being held to constitute sexual harassment. Nurses and midwives should ensure that they are familiar with the sexual harassment policy of their employer. In determining the level of support provided to members in relation to sexual harassment matters, the QNMU’s primary concern is supporting members subjected to sexual harassment in the employer/employee relationship. The QNMU will act to ensure the employer appropriately acts to prevent or deal with sexual harassment matters. The QNMU will support any member who believes they have been sexually harassed. The level of support is at the discretion of the QNMU and may include general advice, representation to the employer, representation before the Anti-Discrimination Commission Queensland (ADCQ) or the Queensland Civil and Administrative Tribunal. In matters before the ADCQ the QNMU, at its discretion, will only support actions by members against their employer or claims made against them by clients and other nonnursing staff. In determining the level of support, the QNMU will take into account the relevant action/inaction of the employer. NURSES AND THE LAW 5th EDITION 107

Employment issues

Members who wish to take action against individuals other than employers before the ADCQ may do so but the costs of such action will be the responsibility of the member. Members who are accused of sexual harassment have the right to seek advice and assistance from the QNMU to ensure that their rights and entitlements are appropriately protected. The QNMU reserves the right to determine on a case by case basis the level of support a member who is the subject of a sexual harassment complaint will receive. The QNMU has a detailed policy regarding sexual harassment. To access the QNMU’s policy please refer to the QNMU website at www.qnmu.org.au/policysheets

Miscellaneous Differences in time limitations

relationships come with additional obligations on employees. These include relationships involving workers from other countries whose employment may be subject to the terms of a visa, and employment relationships involving a bond or scholarship where the employee has reciprocal obligations in return for being provided with assistance with, for example, education. It is important before entering into these sorts of relationships that members fully understand what is required of them. For further advice please contact the QNMU.

Bullying behaviour Bullying behaviours may include any physical or verbal activity or event that demeans a person or disrupts their ability to appropriately perform their work duties. Such behaviour is generally considered to occur when a pattern of such behaviour exists, e.g. repeated occurrences.

One advantage of the Anti Discrimination Commission Queensland (ADCQ) and the Australian Human Rights Commission (AHRC) is that there are longer time limits for bringing complaints.

Workplace bullying can cause significant disruption in a workplace and can damage the health of those subjected to it.

Both ADCQ and the AHRC allow complaints up to 12 months after the discrimination happened.

■■ displaying non-supportive or disruptive behaviour

By comparison Applications under the Fair Work Act 2009 or the Industrial Relations Act 2016 (Qld) for dismissal on the grounds of discrimination have a 21 day time limit.

■■ belittling or intimidating behaviour

Other employment obligations Visas/Bonds/Scholarships

■■ displaying material that is degrading or offensive

In addition to most employer/employee relationships, a number of employment

■■ teasing someone or making them consistently the butt of jokes

108 NURSES AND THE LAW 5th EDITION

Such behaviour may include, but not be limited to, the following:

■■ yelling or swearing ■■ verbal or physical threats ■■ pushing, shoving or fist-shaking

■■ creating rumours or making false statements ■■ assault, stalking or violence.

■■ informing a worker about unsatisfactory work performance or inappropriate work behaviour

Workplace bullying can also be subtle and may include behaviour such as:

■■ directing a worker to perform duties in keeping with their job

■■ deliberately excluding, isolating or marginalising a person from normal workplace activities

■■ maintaining reasonable workplace goals and standards.

■■ intruding on a person’s space by pestering, spying or tampering with their personal effects or work equipment

Stop Bullying Application

■■ intimidating a person through inappropriate personal comments, belittling opinions or unjustified criticism.

An employee in the private sector (federal jurisdiction) can apply to the FWC for an order to stop bullying at work. From March 2016 employees covered by the Queensland Industrial Relations Act 2016 have been able to apply to the QIRC for a stop bullying order.

Covert behaviour that undermines, treats less favourably or disempowers others is also bullying. For example:

The QNMU can also attempt to resolve some matters directly with the employer prior to an application to the FWC or the QIRC.

■■ overloading a person with work

For the FWC or QIRC to grant an order, the Commission must be satisfied that the employee who has made the application has been bullied at work by an individual or a group of individuals and there is a risk the employee who made the application will continue to be bullied at work by that same individual or group.

■■ setting timelines that are very difficult to achieve or constantly changing deadlines ■■ setting tasks that are unreasonably beyond a person’s ability ■■ ignoring or isolating a person ■■ deliberately denying access to information, consultation or resources ■■ unfair treatment in relation to accessing workplace entitlements, such as leave, popular shifts or training. However, bullying does not include reasonable management action carried out in a reasonable manner. Reasonable management action may include, for example: ■■ performance management processes ■■ disciplinary action for misconduct

NOTE: An application cannot be made by an employee in circumstances where their employment has come to an end. All employees have the right to work in an environment based on trust and respect, free from inappropriate behaviour. Laws guiding the way people behave in the workplace include industrial relations, workers’ compensation, anti-discrimination and workplace health and safety legislation. NURSES AND THE LAW 5th EDITION 109

Employment issues

What to do when you think you are being bullied The following are practical tips for addressing bullying behaviour directed at you in the workplace: 1. Keep a record. A nurse or midwife who feels they may be being bullied and harassed in the workplace should ensure they document the bullying behaviours. Bullying behaviour, when viewed in isolation, may appear harmless, and is often an accumulation of acts or omissions over a period of time. As such, many people find it difficult to articulate their complaints. Keeping a diary of what you consider to be bullying treatment is a good way of ensuring that the bullying behaviour is recorded and evidenced. 2. Check for a workplace bullying policy and complaints process. 3. Seek advice from the QNMU. 4. Approach the person engaging in bullying behaviour only if you feel safe and comfortable in doing so. If not, see if your grievance contact officer will raise the person’s bullying behaviour with them on your behalf. 5. Seek counselling. Always ensure you do not let the stress of being bullied overwhelm you. If you think you may be becoming unwell, see a counsellor or doctor. Also seek advice from the QNMU in relation to workers’ compensation processes. 6. Take formal action through a dispute or grievance resolution process that exists in your workplace. The QNMU can give you advice on the process applicable in your workplace.

110 NURSES AND THE LAW 5th EDITION

Defamation In Queensland, the law of defamation is governed by the Defamation Act 2005. Traditionally there was a distinction, at common law, between defamatory matter in a written form, or libel, and defamatory matter in a more temporary form, such as spoken words or gestures, referred to as slander. The Defamation Act abolishes that distinction. A claim of defamation may arise where a person communicates (publishes) something that is defamatory about someone else (the aggrieved) to at least one other person. The core of a defamation claim is not so much the words used or spoken in the defamatory publication, rather it is the imputations which arise from the defamatory matter. The words used or spoken may constitute imputations in their own right as well. Imputations are important because different defamatory imputations may arise from the same defamatory matter depending on the person to whom the defamatory matter is published. Defamatory imputations are matters which could: ■■ lower the aggrieved person’s reputation ■■ lead others to think less of the aggrieved person

■■ make other people shun and avoid the aggrieved person ■■ cause other people to hate, ridicule or despise the aggrieved person. There are a number of defences available to the person alleged to have published defamatory matter including that: ■■ the material was substantially true (justification), ■■ it was a fair report of proceedings of public concern, ■■ it was an honestly held opinion, ■■ it was innocently distributed, or ■■ it was trivial and unlikely to cause harm.

Resolution The Defamation Act contains a process for the informal resolution of a defamation claim. The aggrieved person may write correspondence to the person who published the defamatory matter which sets out the basis for their claim, particularly the defamatory imputations of most concern to them arising from the publication.

This letter, called a ‘Concerns Notice’, should also set out what the person who published the defamatory matter may do to ‘make amends’ for the publication. The person who published the defamatory matter may make an ‘offer to make amends’ to resolve the dispute and avoid litigation. Defamation is a complex, technical and very expensive litigation. It is a civil claim which should not be jumped into without first seeking legal advice.

Assistance The QNMU will not normally assist members to commence a defamation action against another individual. Subject to the qualifications and restrictions contained in the QNMU’s professional indemnity insurance policy, this policy will cover members for defamation claims made against them where such claims arise from alleged publications made in the course of carrying out their practice. Members who are threatened with an action for defamation should contact the QNMU immediately.

NURSES AND THE LAW 5th EDITION 111

Your role as a witness I

n your employment as a nurse or midwife you may at some stage find yourself involved in a formal inquiry or proceeding where you will be required to provide statements and/ or evidence and perhaps even appear as a witness. Such proceedings may include criminal matters, matters relating to child safety, coronial inquiries or proceedings in an industrial commission. While we donâ&#x20AC;&#x2122;t attempt to cover every circumstance in this chapter, the advice is readily adaptable to different types of proceeding and circumstance. Further information can be obtained directly from the QNMU.

Coronial inquiries A coronial inquest can be a difficult time for nursing and midwifery staff as the Coroner is required to make findings and sometimes recommendations at the conclusion of the inquest. If the coroner makes adverse comments or findings about a nurse or midwife, the coroner may refer the practitioner to a health care 112 NURSES AND THE LAW 5th EDITION

complaints body such as the Office of the Health Ombudsman. The coroner must not include comments that a person is or may be guilty of an offence or civilly liable for something. However, if the coroner reasonably suspects a person has committed an offence, the coroner may refer the person to the director of public prosecutions. It is also possible for a person, such as a family member, to commence civil proceedings for negligence following the inquest. During a coronial investigation and inquest, you have a right to refuse to answer questions that might incriminate you. This is called the privilege against self-incrimination. While such an outcome may be rare it is important to contact the QNMU and seek advice before making any statement. Often a nurse or midwife may be contacted by the Coroner, their employer or occasionally by a police officer to make a statement detailing their involvement in the care of the deceased. It is advisable to indicate that you

...it is important to contact the QNMU and seek advice before making any statement.

are willing to co-operate but wish to seek legal advice beforehand. Section 16 of the Coroners Act 2003 provides that the coroner may require a person to give the coroner information, a document or anything else that is relevant to the coronerâ&#x20AC;&#x2122;s investigation. It is an offence to fail to comply with such a direction. You can still seek legal advice before complying with the request and can claim the privilege against self-incrimination. For more information refer to Chapter 4: Professional practice issues.

Making statements There are a range of circumstances where you may be asked to provide a statement. Nurses and midwives are increasingly being

asked to provide statements to regulatory or law enforcement authorities, courts, commissions and tribunals (e.g. the Australian Health Practitioner Regulation Agency, the Crime and Misconduct Commission, the Coroners Court and specially constituted commissions of inquiry). Statements may also be required about workplace health and safety incidents and workersâ&#x20AC;&#x2122; compensation matters. Statements may be requested by employers as part of internal investigations into grievances or alleged incidents of inappropriate workplace conduct. Any statement you make could have serious legal, professional or industrial ramifications. This is the case whether you have merely witnessed an incident or were directly involved. NURSES AND THE LAW 5th EDITION 113

Your role as a witness

It is also important to be aware that anything you write could be used against you. Anything you write also has the potential to be used in a court of law.

General advice about making statements Do not make any statements (other than simple incident reports) until you have contacted the QNMU for advice. You are not obliged to give a statement to the police in relation to any investigation they may be conducting in a criminal matter. In relation to a coronial investigation you can refuse to participate in an interview if your evidence may incriminate you or until you have sought legal advice. You are only required to give the police your name and address, and in some cases proof of the correctness of your name and address. You should always seek advice from the QNMU or legal advice before agreeing to be interviewed by or giving a statement to police. If you believe that any statement you might make could incriminate you or make you liable in an action for negligence, then you should politely decline to make any report to any person in authority until you have obtained legal advice. Never be pressured into making a statement in these circumstances. Refrain from discussing the issue with any other staff members. You must be given adequate time to prepare and seek advice on any statement you make. Prior to the provision of any statement to the police you should make it clear that you require 114 NURSES AND THE LAW 5th EDITION

time to prepare and seek advice about the matter. If the statement is required in a matter involving a patient, ask for access to the patient’s medical and nursing chart. You should be given the opportunity to sit down and read the patient’s file before making any statement. Health agencies maintain records for at least seven years from the last entry. For babies, this period usually extends to when they reach the age of 21. If you are under pressure to provide a statement in a timeframe which does not allow you adequate time to properly prepare your statement, you should contact the QNMU for assistance.

Preparing your statement In order to assist the QNMU in providing advice on your statement, please ensure you follow these guidelines in preparing your statement: ■■ Your statement should be accurate, precise, concise, clear, legible and unambiguous. You should: ◆◆ state your full name, your position and employer and any qualifications you hold. ◆◆ provide factual details of the incident, including the place of the incident, dates and times in chronological order of events that you witnessed or participated in, names of persons involved and any witnesses to the incident. ◆◆ write your statement in the first person, that is, detail what you saw, heard or, in some situations, touched or smelt (e.g. ‘I

checked the patient’s blood pressure at 7.15am’). ◆◆ describe any circumstances or contributing factors to the incident, such as lack of staff or equipment (e.g. ‘there were fewer nursing hours provided on this shift than were indicated as being required by the Patient Dependency System’). ■■ You should not state your opinion or view on the matter, apportion blame or draw conclusions. ■■ You should always retain a copy of statements of any incident you are involved in during the course of your nursing and/or employment. If a statement has been made by your employer about an incident in which you were involved, you should request a copy of this for your records.

Documentation and reports Making a statement is easier if you have clear, precise and effective documentation.

Effective documentation

Failure to report matters adequately may be evidence of negligence or result in disciplinary action being taken by the NMBA. Charting is not simply a clerical responsibility but also a clinical and professional one. For this reason documentation should be objective. Avoid the use of opinion and personal comments (e.g. ‘client is difficult’). There are times when opinion is called for, where problem solving approaches to patient care are used. The adequacy of the opinion is something which cannot be judged unless the objective basis for the opinion is also documented.

Reports should be contemporaneous – that is, they should be made as close as possible in time to the events being reported upon.

Reports should be legible and clear

The sooner after the event that a report is made the more likely it is to be accurate and as a consequence, the more likely a court is to accept it as evidence and a true record of events.

Failure to write legibly may result in liability in negligence. Errors should not be obliterated—if a mistake is made, rule neatly through it and write the correction beside or above the erroneous words clearly and legibly.

Reports should be adequate and accurate, carefully and fully made and not include irrelevant material.

Any correction should be signed or initialled and dated by the person making it (the original report writer).

Failure to report matters adequately may be evidence of negligence or result in disciplinary action being taken by the NMBA.

Do not rewrite reports. Reports and charts should never be rewritten at a later date, as this can lead to errors being made. NURSES AND THE LAW 5th EDITION 115

Your role as a witness

The value of a patientâ&#x20AC;&#x2122;s medical record is that it is made contemporaneously with the events it documents. The existence of a rewrite policy can call into question the accuracy of every patient record within the institution. If there is additional information which was forgotten at the time an entry was made, then it should be included as an addendum. Do not transcribe. Treatment orders should not be transcribed into a patientâ&#x20AC;&#x2122;s notes from the original order.

and accuracy. This includes countersigning reports. Avoid documenting information which has been passed on by others. If you are required to countersign an entry, you must not do so unless you are satisfied that the drug/ treatment was in fact administered. If in doubt, do not countersign.

Nurses, midwives and the police It can be a stressful experience when the police arrive at your workplace or your home.

The person who actually carried out the procedure or administers the drug should write the report. Never write a report or sign it on behalf of another health care worker.

Whether you have merely witnessed an incident or were directly involved, the things you do and say to the police could have serious legal, professional or industrial ramifications.

Reports represent the knowledge of the person in whose name they are written. The person signing a report vouches for its truth

As a QNMU member it is important for you to know your rights when dealing with the police about a work related matter.

You should be aware that any answers you give may be used as evidence against you in disciplinary, coronial or criminal proceedings. 116 NURSES AND THE LAW 5th EDITION

What you say to other persons and to police officers may have serious effects on the outcome of any proceedings.

You have the right to obtain independent legal advice before being interviewed or providing a statement.

You are under no legal obligation to answer questions from police, apart from your name and address.

You also have the right to the presence of legal counsel during the interview process if you are being questioned with regard to an indictable offence.

You should be aware that any answers you give may be used as evidence against you in disciplinary, coronial or criminal proceedings. You have a right to remain silent. This means you are not required to participate in an interview with the police, or answer any questions from the police (other than your name and address). This is also known as the privilege against self-incrimination. No negative inference can be drawn against you for not participating in an interview. Unless you are arrested, you do not have to go with the police to the police station, or to answer questions. If you are confused as to whether you are under arrest, ask the police officer whether you are under arrest. You should ask the name, rank and station of the police officer and make a note of these details. Asking you to come to the police station for ‘questioning’ is only an invitation, without the force of the law, and there is no legal obligation for you to accompany the police unless you have been arrested.

Giving your details It is advisable to give your name and address, if requested by the police, regardless of the offence being investigated.

Giving a statement You are not obliged to give a statement to the police in relation to any investigation they may be conducting.

An indictable offence is one such as assault, an example of a non-indictable offence would be unlawfully taking away shop goods. You should not agree to blood tests, to videotaped interviews or to re-enactments of an event without first obtaining legal advice.

If you are arrested or charged If you are charged or arrested you must contact your own solicitor. The QNMU is unable to legally represent members on criminal matters, though the QNMU can refer members to its panel of lawyers for assistance if required (this would be at the member’s cost).

Whistleblowing (public interest disclosures) An important component of public accountability is the willingness of employees to voice concerns on matters of public interest. Providing some protection for people who do this is the reason why we have whistleblowing legislation. In Queensland, under the Public Interest Disclosure Act 2010 (previously the Whistleblowers Protection Act 1994), protections predominantly apply to employees in the public sector. For more information on mandatory reporting protections under the Aged Care Act refer to Chapter 5: Mandatory Reporting. Public service officers, including nurses and NURSES AND THE LAW 5th EDITION 117

Your role as a witness

midwives, may seek protection for public interest disclosures (PID) relating to: ■■ corrupt conduct ■■ maladministration which adversely affects anybody in a substantial and specific way ■■ a substantial misuse of public resources ■■ a substantial and specific danger to public health or safety or ■■ a substantial and specific danger to the environment. Any person may disclose a danger to a person with a disability or the environment, or a reprisal. The protections available to a person who makes a PID (often referred to as a ‘whistleblower’) under the Public Interest Disclosure Act 2010 are similar to the protections available to those required to make mandatory reports. A person is not criminally, civilly or administratively liable for making a disclosure. Their liability in relation to their own involvement in a disclosed matter is unaffected.

The QNMU is able to assist members considering using PID/‘whistleblowing’ procedures; however members should contact us for advice first. In 2013, the Commonwealth government also passed legislation relating to whistleblowing, the Public Interest Disclosure Act 2013 (Cth), which commenced in January 2014. The objects of the legislation include promoting the integrity and accountability of the Commonwealth public sector, ensuring that public officials who make public interest disclosures are protected from adverse consequences relating to the disclosures, and ensuring that disclosures by public officials are properly investigated and dealt with. QNMU members who wish to make a PID with information they have, should contact the QNMU for advice.

Within the workplace From time to time you may be asked by your employer to make a statement about some matter or incident that has occurred at your workplace.

It is an indictable offence to take reprisal actions against a person who has made a PID (‘whistleblower’). A reprisal action is any act or attempt to act to cause a suspected whistleblower detriment because of the PID. The maximum penalty ranges from a fine to up to two years imprisonment. There are important procedural steps that need to be followed by anyone seeking to claim the protection available under the Public Interest Disclosure Act. 118 NURSES AND THE LAW 5th EDITION

The QNMU is able to assist members considering using PID/‘whistleblowing’ procedures; however members should contact us for advice first.

If the subject of the statement concerns a client of the service (a patient or resident) then you should contact the QNMU before providing a statement as it may be a matter relevant to the QNMU’s professional indemnity insurance policy or involve other issues you need to be aware of. On occasion, your employer may request a statement regarding a matter or incident that involves another employee. There could be several reasons for this but one of the most usual is because the other employee is the subject of an investigation or disciplinary process. It is important to know that an employee being investigated is usually entitled, pursuant to the rules of natural justice, to any statements that contain information that may be used against them or is adverse to them. It is also important to know that if the matter goes to a court or tribunal (for example, if the employee is dismissed), then your statement could be required at a hearing and you may be cross examined on what you have said in your statement. If you are asked by your employer for a statement on any matter, or if you feel the need to volunteer a statement to your employer, you should seriously consider the following points: ■■ Do you know how the statement will be used, what its purpose is? ■■ Stick to the things and events you know, not what you may have heard. ■■ Stick to the facts, not your personal likes or dislikes.

Giving evidence The reasons for giving evidence and the procedures used will vary depending on the court or tribunal, the subject of the proceedings, and your role in the proceedings. Importantly, you should ignore everything you have ever watched on television in which witnesses give evidence. In almost all cases, it is completely different to reality. As a general guide, you should: ■■ familiarise yourself with the court environment ■■ review any relevant documents including, if you have made one, your affidavit of evidence or statement ■■ clarify with the legal representative the reason you are appearing to give evidence ■■ conduct yourself in a calm and organised manner ■■ speak clearly ■■ know the facts ■■ seek clarification if you do not hear or understand the question ■■ do not estimate unless you are specifically requested to do so ■■ tell the truth ■■ expect to be cross examined ■■ be reasonable. (This material draws from Kim Forrester and Debra Griffiths’ Essentials of Law for Health Professions (4th ed.), Elsevier, Sydney, 2015.)

■■ Do not sign anything you are unsure of or disagree with. NURSES AND THE LAW 5th EDITION 119

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veryoneâ&#x20AC;&#x201D;nurses and midwives, patients, members of the public and other staff â&#x20AC;&#x201D; has the right to work in an environment where they are protected from aggressive behaviour. Unfortunately, violent and aggressive behaviour has been a part of working in health care settings for some time. Some areas of nursing and midwifery are more likely to face aggressive patient behaviour than others. Nurses and midwives may also be faced with violence or aggression from family members or friends of patients. There is evidence to suggest that higher levels of aggression are becoming more common in the workplace. Because of their frontline role in health care, nurses and midwives are, unfortunately, often the target of violence and aggression. The QNMU supports the rights of members to work in an environment that is free from aggression and violence. Aggression and violent behaviour, including verbal threats, intimidation and harassment, should not be tolerated in any workplace.

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Your employer has a duty to provide a safe place and system of work for the health and safety of you, the employee. You are able to refuse to work, or continue to work, if you are confronted with an imminent or immediate serious workplace health and safety risk from a hazard until action is taken by your employer to remove or minimise the risk. The employer is required to consult with you on how this is done. You must make yourself available to carry out suitable alternative work. A number of legal consequences can arise when aggression occurs.

Criminal assault If a nurse or midwife has been a victim of an assault they are able to make a complaint to the police. The police may then charge and prosecute the perpetrator of the assault. There are a range of different criminal offences that arise from aggressive or violent behaviour. As a nurse or midwife you cannot personally prosecute a person who has criminally

assaulted you; this is solely the responsibility of the police. You may be able to seek criminal injuries compensation for an assault.

Trespass to person includes assault, battery and false imprisonment. Trespass to person requires direct and unlawful interference of the person by another without their consent.

You may also be able to bring a claim for compensation for the common laws tort of trespass to person. You should contact the QNMU in these circumstances for advice.

An action for trespass to person does not require proof of damage (compare this with an action in negligence which requires proof that the defendant caused damage).

Nurses and midwives who attempt to ‘take the law into their own hands’ run the risk of engaging in criminal conduct themselves or make themselves liable to civil claims for a trespass to person.

Consent is important to this area of law because where there is consent there is no trespass to the person. In Queensland the criminal law is codified, which means it is set out in legislation. The criminal law definition of assault is also used as the basis for an action under the civil law for assault.

Criminal Code Queensland Section 245 of the Criminal Code Act 1899 provides that: A person who strikes, touches, or moves, or otherwise applies force of any kind to the person of another, either directly or indirectly, without their consent or with their consent if the consent is obtained by fraud, or who by any bodily act or gesture attempts or threatens to apply force of any kind to the person of another without their consent, under such circumstances that the person making the attempt or threat has actually or apparently a present ability to effect their purpose, is said to assault that other person, and the act is called an assault. The term ‘applies force’ includes the case of applying heat, light, electrical force, gas, odour, or any other substance or thing whatever if applied in such a degree as to cause injury or personal discomfort. NURSES AND THE LAW 5th EDITION 121

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The Criminal Code definition of assault includes battery — that is, assault is defined as threats as well as acts violence.

Defences to an action in assault There are several defences to an action in assault including where: ■■ any apparent threat or physical contact was unintended or an accident ■■ the situation was an emergency, and measures used were to save life or health ■■ the action taken was in self defence when faced with imminent danger and no more force than necessary was used prevent the danger ■■ the action taken was for the protection of another person (including the victim) and/ or property, from danger, by use of no more force than was reasonably necessary ■■ there exists a statutory power to do so in an emergency. In addition, a health practitioner has a defence to an assault where it involves treatment, provided that at the time the treatment was given there was an emergency situation, that is, the treatment was necessary to save life or to prevent serious injury to a person’s health. Nurses and midwives should be aware that a number of statutes authorise assaults or imprisonment which would otherwise be unlawful in the absence of a person’s consent. If the requirements set out in the statute are followed by the person nominated as having the authority, then nurses and midwives assisting them or acting under their authority will generally also have a defence. For example: 122 NURSES AND THE LAW 5th EDITION

It is an assault to initiate or continue treatment once a person has refused consent. ■■ giving a blood transfusion to a child in cases of imminent peril [s.20 Transplantation and Anatomy Act 1979] ■■ the detention and examination of persons suspected of suffering from, or exposed to, a notifiable disease [Health Act 1937] ■■ the detention and examination of persons involuntarily under the provisions of the Mental Health Act 2016 ■■ the provision of reasonable palliative care, in good faith and with reasonable care and the palliative care is ordered by a doctor [s.282A Criminal Code].

Refusal of treatment in an emergency An adult person of sound mind may refuse emergency treatment. It is an assault to initiate or continue treatment once a person has refused consent.

Victim Assist Queensland Since 1 December 2009, victims of crime are no longer entitled to apply for criminal compensation either from the offender or the Queensland Government through the ex gratia compensation scheme. Victim Assist Queensland is a scheme, administered by the Department of Justice

and Attorney-General and has been introduced to allow victims of crime to access the following: ■■ financial assistance (for medical assistance and loss of earnings) ■■ funeral assistance ■■ support services, i.e. counselling ■■ practical support during court proceedings. The scheme is designed to assist victims of crime to recover from the effects of crime. It also provides assistance to relatives of victims and witnesses to serious acts of violence. Members are encouraged to contact the QNMU for further advice and assistance regarding their rights and eligibility.

Workplace health and safety

circumstances volunteers are protected by this legislation. The workplace itself is any place where work is performed by a worker or a person conducting business or undertakings. This means a nurse or midwife’s workplace could range from a hospital to a patient’s home if they are being nursed there. An employer has an obligation under Section 19 of the Act to ensure, as far as reasonably practicable, that they, their workers or other persons are not exposed to risks to their health and safety arising as a result of the employer’s business or undertakings. In Queensland an employer will minimise their risks of breaching this obligation if they adhere to the various practices set out in the

The health and safety of workers in Queensland is governed by the Work Health and Safety Act 2011 and the Work Health and Safety Regulation 2011. Additionally, a number of Codes of Practice, which provide advice around hazards common to an industry, can be used in proceedings under the Act. An example is the Manual Tasks – Involving the Handling of People Code of Practice 2001. The objective of this legislation is to prevent a person’s death, injury or illness being caused by a workplace, by work activities or by specific high risk plant (equipment). Under the Work Health and Safety Act 2011 a worker is defined as one who carries out work in any capacity for a person conducting a business or undertaking. Additionally a person may be a worker even if the worker is not paid, therefore in certain NURSES AND THE LAW 5th EDITION 123

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Work Health and Safety Regulation 2011, and/ or follow a risk management process. The How to Manage Work Health and Safety Risks Code of Practice 2011 clearly states what is required. If a hazard is present in a workplace and is not covered by regulation or a code of practice, and an employer has not used the risk management process, they may be in breach of the Act. In that case, they could be prosecuted by Workplace Health and Safety Queensland, the government body established to manage workplace health and safety in Queensland. A worker’s obligation under s.28 of the Act is to: ■■ take reasonable care for his or her own health and safety ■■ take reasonable care that his or her acts or omissions do not adversely affect the health and safety of other persons

direction, they should raise the issue with their health and safety representative and with the QNMU. In Queensland workers have a right to elect health and safety representatives. These representatives cannot be appointed by the employer. Should workers choose, they can ask for their union to assist with the election process. The Health and Safety Representative (HSR) has a number of entitlements under Sections 68 and 72 of the Act, ranging from the ability to perform inspections through to the right to attend workplace health and safety representative training. Another entitlement under the Work Health and Safety Act includes an ability for a HSR to issue Provisional Improvement Notices (PINs) in circumstances where a HSR believes there is a contravention of a provision of the Act. A HSR is elected for a period of three years.

■■ comply, so far as the worker is reasonably able, with any reasonable instruction that is given by the person conducting the business or undertaking to allow the person to comply with the Act

In Queensland it is an offence under the Act to dismiss or otherwise act to the detriment of a worker who has made valid complaints regarding their health and safety, or those workers who are health and safety representatives and are carrying out their role.

■■ co-operate with any reasonable policy or procedure of the person conducting the business or undertaking relating to health or safety at the workplace that has been notified to workers.

Part 6 of the Work Health and Safety Act 2011 introduces protections for workers and others to prevent them from being subjected to discriminatory conduct for raising workplace safety concerns.

They must also not wilfully or recklessly place at risk the workplace health and safety of themselves or others.

What is prohibited?

Therefore, if they are given a direction that they know will put themselves at risk and the employer is unwilling to reconsider the 124 NURSES AND THE LAW 5th EDITION

Section 104 of the Work Health and Safety Act 2011 provides that a person conducting a business or undertaking (PCBU) must not engage in discriminatory conduct for a prohibited reason. Discriminatory conduct is:

■■ dismissing a worker ■■ terminating a contract for services

The burden of proof is on the balance of probabilities.

■■ putting a worker at his or her detriment

What to do if your workplace is unsafe

■■ altering the position of the worker

Under both state and federal industrial legislation there is a right for workers to refuse to work in an unsafe situation.

■■ refusing or failing to offer to engage a prospective worker ■■ terminating a commercial arrangement with a person ■■ refusing or failing to enter into a commercial contract with another person. “Prohibited reasons” are as follows: ■■ a person is, has been or proposes to be a Health and Safety Representative (“HSR”) ■■ a person exercises power or performs a function as a HSR or as a member of a Health and Safety Committee (“HSC”) ■■ a person exercises, proposes or assists to perform a function under the Work Health and Safety Act 2011 ■■ a person raises, has raised or proposes to raise an issue of concern about safety with the business, an Inspector, a HSR, a member of a HSC or another worker ■■ a person is involved or has taken action (or is proposed to be involved or taking action) in respect of a workplace safety issue. The prohibition against discriminatory conduct can be enforced by: ■■ criminal prosecution by Workplace Health and Safety Queensland or ■■ civil proceedings by a person affected by the contravention. It will be presumed that discriminatory conduct will be for prohibited reasons unless the accused PCBU can prove otherwise.

In such circumstances your employer can direct you to undertake other work until the unsafe situation is remedied. If your workplace becomes unsafe you should not put yourself at risk and should contact the QNMU for assistance.

Critical incident stress debriefing A critical incident is any situation faced by personnel that causes them to experience unusually strong emotional reactions which have the potential to interfere with their ability to function either at the scene or later. The QNMU advises strongly that every facility should have a policy and procedure on critical incident debriefing. The policy should include clear guidelines about critical incident management. Critical incident debriefing is a right for all staff involved in a critical incident. When and how counselling (internal or external) or stress debriefing occurs should be the decision of the affected staff member or members. This lessens the impact of critical incidents on all staff by minimising the severity and duration of critical incident stress and helps prevent the development of more chronic and harmful stress-related disorders. It is the employee who decides whether they have experienced a critical incident or not. NURSES AND THE LAW 5th EDITION 125

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Workers’ compensation

Who is covered?

What is workers’ compensation?

Workers in Queensland who are employed under a contract of employment should be covered by workers’ compensation.

In Queensland, the Workers’ Compensation and Rehabilitation Act 2003 establishes a ‘no fault’ workers’ compensation scheme providing benefits primarily for workers who sustain injury in their employment and for dependants if a worker’s injury results in the worker’s death. It is compulsory for employers to to hold a policy of insurance with WorkCover Queensland (or a self-insurer) who administers the fund and the provision of fair and appropriate benefits for injured workers.

Do you need to disclose previous injuries to a prospective employer? Queensland employers are now allowed to ask prospective employees during an employment process for selecting an employee if they have pre-existing injuries or a medical condition that would be aggravated by performing the substantive duties of the position applied for. This request must be in writing and you must be provided with a job description sufficiently detailed to enable you to make a considered response. If you knowingly provide false or misleading information to a prospective employer about a pre-existing injury or medical condition, you may be not be entitled to workers compensation benefits or seek damages for a work related aggravation of your pre-existing injury or medical condition. If you are requested by a prospective employer to disclose pre-existing injuries or a medical condition during an employment process you should contact the QNMU for assistance. If concerned you should contact the QNMU. 126 NURSES AND THE LAW 5th EDITION

When are you covered? If a worker sustains an injury that arose out of or in the course of employment, and their employment was a significant contributing factor to the injury, then the injured worker should be eligible for workers’ compensation benefits, medical treatment and rehabilitation. The injured worker should also be eligible for workers’ compensation benefits, medical treatment and rehabilitation if an injury is sustained: ■■ whilst on a journey — from the boundary of your property at home to work and return ■■ whilst temporarily absent during an ordinary recess ■■ whilst at work ■■ travel for work ■■ attending an associated educational institution.

What steps do you take to claim for a work related injury? The following advice refers to WorkCover Queensland however, if your employer is privately insured, some of the procedures may differ. If your employer is privately insured, you should ask for detailed information on what is required and contact the QNMU for further assistance. 1. Tell your employer you have a work related injury or illness and complete an incident form within three days or as soon as practicable.

2. Obtain a WorkCover application form from your employer, WorkCover or self-insurer. 3. Obtain a Workers’ Compensation Regulator Workers compensation Medical Certificate from your treating doctor or dentist. 4. Write a statement outlining what you were doing at the time you sustained the injury or the onset of symptoms if your injury occurred over a period of time. 5. Lodge all forms with your employer, WorkCover Queensland or self-insurer. Your doctor can also fax your forms straight to WorkCover. You may need to provide a Tax File Number declaration to the insurer.

Are there any time frames? An application for workers’ compensation is valid and enforceable only if the application is lodged by the injured worker within six months of sustaining the injury or from first presentation of symptoms or diagnosis by a registered practitioner. If you lodge an application for workers’ compensation outside the six month time frame it will not be a valid application. In some circumstances WorkCover may accept an out of time application but only in situations involving a mistake, the injured workers’ absence from the state, or for a reasonable cause. If your application for workers’ compensation is lodged more than 20 business days after your injury, WorkCover may only be liable to pay compensation from the date 20 business days before the application was lodged. NURSES AND THE LAW 5th EDITION 127

Being safe at work and workers’ compensation

Do you have to take time off work? You can also make a claim for ‘Medical Expenses Only’ or ‘Record Purposes Only’ if you do not wish/need to take time off work. Note: There may be some limitations, including time, that affect your claim.

How long is it until your claim is decided by WorkCover? WorkCover must make a decision on an application for workers’ compensation within 20 business days after the application is made. The majority of claims are decided within this time frame. However, if WorkCover does not make a decision or is not able to make a decision within 20 business days, WorkCover must advise you in writing reasons as to why no decision has been made. Complicated claims and claims for psychological injury can take longer for a decision to be made.

What happens if you make a ‘stress’ claim? To make a ‘stress’ claim you must have a medical diagnosis — stress is not acceptable terminology. Due to a recent change to the Act, for any psychological injury sustained on or after 15 October 2013, employment must be the major significant contributing factor to the injury. In many claims involving a psychological injury you may be interviewed by WorkCover or their representative such as a psychologist or an investigator. In some instances you will also be required to see a psychiatrist who will assess your injury and its cause. 128 NURSES AND THE LAW 5th EDITION

Psychological injuries are excluded from the definition of ‘injury’ under the Act where the psychological injury arises out of reasonable management action taken in a reasonable way. It is important that you discuss a claim involving a psychological injury with the QNMU before you put in a claim. It is extremely difficult to obtain workers’ compensation for claims involving psychological injury.

How is payment made? Payment can be made from the day of injury if you cease work. The employer excess is paid directly to the worker or one week of compensation, whichever is the greater amount. WorkCover will advise the employer of the amount of excess. Additionally your employer is to pay for the day of injury. Some employers will pay you directly and they are reimbursed by WorkCover. WorkCover will pay by cheque or Electronic Funds Transfer. Note: Leave accrual, salary sacrifice and other payment arrangements may be affected for periods of workers’ compensation.

When do you start being paid? Payments commence within two weeks of your being notified that your claim has been accepted. Should your employer agree to pay you leave entitlements as an interim measure, these should be reimbursed once your compensation comes through. Sometimes there is a difference between your

compensation and the leave entitlements paid.

What about rehabilitation and return to work?

This money will need to be reimbursed back to the employer in order for you to have your leave re-credited. Some members may incur Fringe Benefits Tax on this money.

All employers must offer appropriate rehabilitation programs to their workers.

What should you do if problems arise? In the first instance, contact WorkCover and enquire about the delay and if there is anything you need to do, e.g. you may have the wrong medical certificate or your doctor may not have sent in their report as yet. If you require further clarification about the situation, or if the problem is not resolved by contacting WorkCover, then contact the QNMU.

What are you entitled to? ■■ Payment of lost time earnings dependant on your wage, overtime, higher duties, penalties, allowances and the length of time you are on workers compensation ■■ Medical and treatment expenses. ■■ Private hospitalisation if pre-approved or in an emergency situation for a period of four days. ■■ Some travel expenses. ■■ You have the right to seek advice from a specialist. ■■ Costs are paid/reimbursed at the WorkCover schedule of fees rate — outside of this you are liable for the additional costs. Keep copies of everything. Remember, you are entitled to see what is in your WorkCover file.

WorkCover Queensland, and self-insurers, are obligated to provide reasonable and appropriate medical treatment and rehabilitation in respect of the accepted work related injury. The rehabilitation and return to work plan must be developed in consultation with you and your doctor and signed by your treating doctor. If amended this must also be signed by the treating doctor. A representative from your union may be present at return to work meetings. Injured workers can expect to be contacted by their rehabilitation and return to work coordinator if they are off work.

Reasonable Adjustment Once you have been medically certified as fit to return to work, your employer has an obligation to make “reasonable adjustment” to the workplace environment (including your role) or placement in another role to facilitate your return to work. Some of the difficulties reported by members with impairments who are unable to continue in their current position include: ■■ being given a list of vacant positions within the workplace with no further assistance ■■ the assessment conducted on one position used as the assessment for all positions in that facility. This is unacceptable behaviour. Any member exposed to this should contact the QNMU. NURSES AND THE LAW 5th EDITION 129

Being safe at work and workers’ compensation

What happens if your claim is not approved? If your claim is rejected then request a copy of your file in writing from WorkCover or the self-insurer and send it to the QNMU for advice. Decisions to reject a claim or a cease an already accepted claim are subject to review upon request and the union may be able to assist you with this process. You have three months from the date you receive the insurer’s reasons for decision in writing in which to submit an Application for Review of that decision to the Workers’ Compensation Regulator.

What happens if you are referred to a Medical Assessment Tribunal (MAT)? The QNMU assists members with representation at a tribunal. Please contact the QNMU as soon as possible after receipt of this notification. Only the workers’ compensation insurer can make a decision on the acceptance or rejection of your claim.

What to do if I receive a Notice of Assessment? Injured workers should contact the QNMU for assistance and referral for legal advice from practitioners who practise in this area of law. Injured workers who receive a Notice of Assessment are required to make decisions that will affect future entitlement and access to damages at common law. Decisions made by an injured worker in response to a Notice of Assessment are irrevocable and time limits apply. 130 NURSES AND THE LAW 5th EDITION

Common law claim for damages Workers who sustain injury in circumstances where there was an unsafe system of work, an unsafe place of work or where there has been a breach of the employer’s duty of care owed to the worker and/or breach of employment contract, may be eligible to proceed with a common law claim for damages. You will need to establish that your employer or co-worker at the time of injury was at fault or negligent and thereby responsible for the injuries suffered. If this can be established on the balance of probabilities, a common law claim for damages may progress. Entitlement and access to a common law claim for damages is regulated by the Workers’ Compensation and Rehabilitation Act 2003. For all injuries sustained between 15 October 2013 – 30 January 2015, access to common law damages has been restricted by the introduction of threshold which requires a greater than 5% degree of permanent impairment. Injured workers requiring advice on a common law claim for damages, or who are contemplating such action, should contact the QNMU for assistance and referral for legal advice from practitioners who practise in this area of law. Currently a common law claim must be commenced within three years of the date of injury. For those injuries of a latent nature we suggest you contact the QNMU as soon as symptoms arise.

Privacy and the right to information T

his chapter covers the management and control of information, the protection of personal information, and the rights and importance of access to information. These matters are covered by both federal and state legislation. Individuals should have ready access to information about them and be protected from having their personal information being traded or accessible to others.

personal information, sensitive information (including health information), tax file numbers and credit information. The Office of the Australian Information Commissioner is an independent body with responsibility to promote and protect privacy in Australia and has certain responsibilities under the federal Privacy Act 1988.

Organisations and governments should be held accountable for their actions and decisions. The provision of information about those actions and decisions is a key component of that accountability.

Privacy The Office of the Australian Information Commissioner The Privacy Act 1988 applies to federal government, most non-government organisations and most private sector businesses (including health service providers), in the way they must collect and handle NURSES AND THE LAW 5th EDITION 131

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The Office of the Australian Information Commissioner states that the privacy legislation provides protection for: ■■ personal information about you that is handled by Australian and ACT government agencies ■■ personal information about you held by all large private sector organisations, all private sector health service providers and some small businesses ■■ credit worthiness information held by credit reporting and credit providers and ■■ personal tax file numbers used by individuals and organisations. Organisations are now required to comply with the 13 Australian Privacy Principles (APPs) that cover the collection, storage, security, access and use of personal information, or be bound by a code approved under the Act. Prior to amendments made on 12 March 2014, the Privacy Act also contained Information Privacy Principles (IPPs) and National Privacy Principles (NPP) that covered the collection, storage, security, access and use of personal information. These IPPs and NPPs still apply to acts or practices that occurred prior to 12 March 2014. The APPs allow patients: ■■ the right to access their health information. Previously the Courts had held in Breen v Williams [1996] HCA 57 that medical records were the property of the health facility or health professional and the patient did not have a right to access their records ■■ the power to correct health records when they contain errors and to demand that the 132 NURSES AND THE LAW 5th EDITION

information be properly stored and securely transferred ■■ the right, in circumstances where their medical records are no longer required, to request that the records be destroyed. ■■ As an organisation the QNMU is bound by the APPs. The QNMU’s general privacy policy and website privacy policy can be accessed from the QNMU website, www.qnmu.org.au, or are available from the QNMU offices upon request. Below is a summary of the APPs. APP 1 – Open and transparent management of personal information An organisation is required to have ongoing practices and policies in place to ensure they manage personal information in an open and transparent way. It also places a positive obligation for organisations to implement practices, procedures and systems that will ensure compliance with the APPs and any registered APP codes. APP 2 – Anonymity and pseudonymity An organisation is required to provide individuals with the option of dealing with it using a pseudonym, in addition to the requirement that an organisation provide individuals with the option of them dealing with that organisation anonymously. APP 3 – Collection of solicited personal information An organisation must not collect personal information (other than sensitive information) unless the information is reasonably necessary for one or more of the organisation’s functions

or activities. This APP 3 outlines when and how an organisation may collect personal and sensitive information that it solicits from an individual or entity. APP 4 – Dealing with unsolicited personal information An organisation has obligations in relation to the receipt of unsolicited information and how they are required to deal with that information. If an organisation receives unsolicited information and it would have been permitted to collect that information, it is required to deal with the information in accordance with the APPs. If not, and the information is not contained in a Commonwealth record, the organisation must destroy or de-identify that information as soon as practicable. APP 5 – Notification of the collection of personal information An organisation must generally make an individual aware, at the time or as soon as practicable after, the organisation collects their

information. The organisation is also required to notify individuals about the access, correction and complaints processes in their APP policies. APP 6 – Use or disclosure of personal information If an organisation collects personal information about an individual for a particular purpose, it generally must not use or disclose the information for another purpose unless the individual consents. APP 7 – Direct marketing An organisation is prohibited from using or disclosing personal information for direct marketing purposes, except where the individual has either consented or reasonably expects that their information will be used for a particular purpose. APP 8 – Cross border disclosure An organisation must take reasonable steps to ensure overseas recipients do not breach APPs.

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APP 9 – Adoption, use or disclosure of government related identifiers An organisation is prohibited from adopting, or using a government related identifier, unless an exception applies. An example of an ‘identifier’ is a Tax File Number or Medicare number. APP 10 – Quality of personal information An organisation must take reasonable steps to ensure the personal information it collects, uses or discloses is accurate, up to date and complete, having regard to the purpose of the use or disclosure. APP 11 – Security of personal information An organisation must take reasonable steps to protect personal information it holds from misuse, interference and loss, and from unauthorised access, modification or disclosure. An entity has obligations to destroy or de-identify personal information in certain circumstances. APP 12 – Access to personal information Organisations are required to respond to requests for access of personal information within a reasonable timeframe and should be provided in the requested manner where reasonable and practicable. APP 13 – Correction of personal information Organisations are required to take reasonable steps to correct personal information to ensure that is it accurate, up to date, complete, relevant and not misleading.

The Office of the Information Commissioner – Queensland The Queensland Government introduced the Office of the Information Commissioner – Queensland under the Right to Information Act 134 NURSES AND THE LAW 5th EDITION

2009. This Act established the separate roles of an Information Commissioner and a Privacy Commissioner for Queensland. The Information Privacy Act 2009 (IPA) commenced on 1 July 2009 and has the objective of providing for: a. the fair collection and handling in the public sector environment of personal information, and b. a right of access to, and amendment of, personal information in the government’s possession or under the government’s control unless, on balance, it is contrary to the public interest to give the access or allow the information to be amended. The IPA requires Queensland Government agencies to comply with the IPPs in almost all circumstances. The Queensland Department of Health and individual Hospital and Health Services (health agencies) have specific responsibility to comply with the 9 NPPs. Information regarding privacy obligations can be found on the Department of Health’s website: www.health.qld.gov.au/privacy Below is a summary of the NPPs that apply to health agencies: NPP 1—Collection of personal information A health agency must not collect personal information unless the information is necessary for one or more of its functions or activities. A health agency must collect the information in a lawful, fair and unobtrusive way. A health agency must take reasonable steps to ensure the individual is aware that the health agency has collected the personal

information (unless the information is required to be collected under an Act). NPP 2—Limits on use or disclosure of personal information A health agency must not use or disclose personal information about an individual for a purpose other than the primary purpose of collection unless a relevant exception applies. NPP 3—Data quality A health agency must take reasonable steps to ensure that the personal information it collects, uses or discloses is accurate, complete and up to date. NPP 4—Data security A health agency must take reasonable steps to protect the personal information it holds from misuse, loss and unauthorised access, modification or disclosure. If the personal information is no longer needed, the health agency must take reasonable steps to ensure that the individual can no longer be identified from the personal information. NPP 5—Openness A health agency must have clearly expressed policies on the maintenance of personal information and must make the policies available on request. When asked by a person, a health agency must take reasonable steps to ensure that the person knows what personal information is held generally and how it is used. NPP 6—Access to documents containing personal information If a health agency has control of a document containing personal information, it must give access to the documents to the person whose personal information has been kept, unless authorised by law to refuse access.

NPP 7—Amendment of documents containing personal information A health agency must take reasonable steps to ensure that personal information is accurate, complete, relevant, up to date and not misleading. If a health agency does not consider that it is required to amend personal information in a way requested by an individual, the health agency must, if the individual asks, take all reasonable steps to attach to the document any statement provided by the individual of the amendment asked for. NPP 8—Anonymity Wherever it is lawful and practicable, individuals must have the option of not identifying themselves when entering into transactions with a health agency. NPP 9—Sensitive information A health agency must not collect sensitive information about an individual unless the individual consents, it is impractical to seek consent, the collection is required by law, the collection is necessary to prevent or lessen a serious threat to the life, health, safety or welfare and the individually cannot physically or legally consent, if the collection is necessary for the establishment, exercise or defence of a legal or equitable claim or the information is medical history collected for the purpose of providing a health service. If you are seeking information about yourself, want to amend information about yourself or believe that the Queensland state government department has incorrect information about you; you may make an application to the Queensland state government department to obtain the information or to correct or amend the information. NURSES AND THE LAW 5th EDITION 135

Privacy and the right to information

A government department cannot charge you a processing fee under the IPA but may charge you an access fee, to cover photocopying etc. This fee is prescribed in regulations.

Making an application under the Information Privacy Act 2009 You need to ensure the following for a valid application under the IPA: ■■ It must be in writing. ■■ You must provide evidence of your identity, for example: ◆◆ a copy of the photo page of your passport ◆◆ a copy of your birth certificate or extract ◆◆ a copy of your driver’s licence. ■■ You must include a description of the type of information you are seeking. ■■ You must include an address for a response.

■■ where there is noncompliance with the application process—15 business days of receipt of the application ■■ where it is deemed not to be limited to personal information—15 business days of receipt of the application. Many Queensland government departments have a Right to Information/Information Privacy Act request form for use by individuals. If you require further information or clarification about making a request for information from Queensland government departments contact the Right to Information/ Privacy Officer for the department. The Department of Health also has a policy of administrative access in relation to an individual’s health records and has a form available for this purpose at www.health.qld.gov. au/rti/application/default.asp

A government department is required to respond to your application under the IPA within 25 business days of receipt of the application, though this may be extended in certain circumstances.

The Department of Health policy indicates that a response to a request for personal health information under administrative access is generally 15 business days.

A government department is required to respond to your application under the IPA in the following timeframes, where applicable:

Further information on the federal and state privacy regimes can be accessed at the following websites:

■■ where the application is for documents to which the IPA does not apply—10 business days of receipt of the application

■■ Office of the Australian Information Commissioner www.oaic.gov.au ■■ Office of the Information Commissioner: www.oic.qld.gov.au

■■ where the entity is an entity to which the IPA does not apply—10 business days of receipt of the application

Right to information

■■ where the application is made to the information commissioner, RTI commissioner or privacy commissioner—10 business days of receipt of the application

Both state and federal governments have freedom of information legislation. In Queensland the Right to Information Act 2009 (RTI Act) commenced on 1 July 2009. The

136 NURSES AND THE LAW 5th EDITION

materials associated with the RTI Act that help to interpret it, make it clear that: The central, driving principle the Panel considers should govern freedom of information is that unless there is a good reason to withhold them, all documents held by government should be open and available to the public. Section 3(1) of the RTI Act provides that: The primary object of this Act is to give a right of access to information in the government’s possession or under the government’s control unless, on balance, it is contrary to the public interest to give the access. Section 23 of the RTI Act provides that a person has a legally enforceable right to documents of an agency (government department or entity) and documents of a minister. To seek access to a document of an agency or a minister, a person must make an application to the agency or minister.

government should be proactively and routinely releasing information to the public independently from the previous reactive FOI based information access and disclosure regimes (see Solomon Report pp 16-18)… …The core policy driver behind the RTI Act, the “push model”, is reflected throughout the legislation on both a broader structural level and in greater detail in respect to specific provisions. Basically the RTI Act is structured so as to compel FOI decision-makers to consider information should be disclosed solely in the context of the public interest. This is reflected in the pro-disclosure bias which is provided for in s.44 of the RTI Act. This section provides that an agency or minister should, when deciding an access application, give access to the document unless it is, on balance, contrary to the public interest. However, there are a number of bases upon which an agency or a minister can refuse to release documents sought under an RTI application. These include:

Even under the repealed Freedom of Information Act 1992, the context of freedom of information legislation was in favour of an interpretation which would further, rather than hinder, free access to information.

■■ cabinet documents

However the RTI Act goes much further as observed by Professor Gilbert in Queensland Administrative Law at [2.40-2.45]:

■■ law enforcement or public safety information.

At the centre of the RTI Act is the policy of moving from a “pull” to a “push” model in relation to the release and disclosure of government information. Underpinning the “push model” is the assumption that freely available government information is a cornerstone of an open and democratic system – the key element being that the

■■ documents which are legally privileged ■■ documents which the release of which could found a breach of confidence claim and

Access may also be refused in relation to documents containing ‘contrary public interest information’. For example, if an access application is made to the Department of Health it should decide to give access to the document unless giving access would, on balance, be contrary to the public interest. It is intended that the grounds on which access may be refused are to be interpreted NURSES AND THE LAW 5th EDITION 137

Privacy and the right to information

narrowly: Professor Gilbert in Queensland Administrative Law observes at [2.45]: A core reform of the RTI Act is the fundamental revision of the methodology to be adopted when determining whether access to a document can be refused, i.e. the exemption process. The general approach has been to frame the exemptions such that the key issue and basis for the exemption is whether the release of the information would, on balance, be contrary to the public interest. In this regard the RTI Act reduces the number of “stand alone” exemptions previously available and introduces a revised pubic interest test which operates as a “stand alone” exemption. The Department of Health may refuse access to a document under s 47(3)(b) if disclosure of which would, on balance, be contrary to the public interest under section 49. But the Department of Health may not do so by taking into account irrelevant factors such that, according to the Queensland Administrative Law: disclosure of information that could reasonably be expected to cause embarrassment to, or loss of confidence in, the Government and the disclosure of the information could reasonably be expected to result in the applicant misinterpreting or misunderstanding the document, disclosure of the information could reasonably be expected to result in mischievous conduct by the applicant and the person who created the document containing the information was or is of high seniority within the agency. If an access application is made to the Department of Health for a document, it must 138 NURSES AND THE LAW 5th EDITION

decide to give access to the document unless disclosure would, on balance, be contrary to the public interest. In performing the public interest test, the Department of Health is required to identify factors in favour of disclosure, factors in favour of non-disclosure and, weighing those factors, decide whether, on balance, disclosure of the information would be contrary to the public interest. Schedule 4 of the RTI Act lists the factors for deciding the public interest. Schedule 4 particularises: ■■ factors irrelevant to deciding the public interest ■■ factors favouring disclosure in the public interest ■■ factors favouring non-disclosure in the public interest. In relation to health documents, the RTI Act provides that when considering an application for access which relates to a health decision or the appointment of a health care professional, the agency must appoint a qualified healthcare professional in relation to the application [s.30(5) & (6)]. A health decision means a decision relating to information about the applicant which if released may be prejudicial to the physical or mental health of the applicant. This also constitutes a basis for refusing to release information under s.47(3) of the RTI Act.

Making an application under the Right to Information Act 2009 If you are submitting an application for information that is not about you to a Queensland state government department you may need to make an application under

the RTI Act. You may need to a pay a fee for access to the requested information under the RTI Act. You need to ensure the following for a valid application under the RTI Act: ■■ It must be in writing. ■■ You must include or make arrangements to pay the relevant processing fee. ■■ You must provide evidence of your identity, for example: ◆◆ a copy of the photo page of your passport ◆◆ a copy of your birth certificate or extract ◆◆ a copy of your driver’s licence.

commissioner or privacy commissioner—10 business days of receipt of the application ■■ where there is noncompliance with the application process — 15 business days of receipt of the application ■■ where it is deemed an application for personal information — 15 business days of receipt of the application. Each Queensland government department should have a Right to Information/ Information Privacy Act request form for use by individuals. If you require further information or clarification about making a request for information from Queensland government departments contact the Right to Information/ Privacy Officer for the department.

■■ You must include a description of the type of information you are seeking.

Are there charges under the RTI Act and IPA for applications?

■■ You must include an address for a response.

A processing fee is not payable for access to a document that concerns the applicant’s personal affairs. That is, an application under the IPA. However you may be charged access fees under IPA.

Timeframes A government department is required to respond to your application under the RTI Act within 25 business days of receipt of the application, though this may be extended in certain circumstances. A government department is required to respond to your application under the RTI Act in the following timeframes, where applicable: ■■ where the application is for documents to which the RTI Act does not apply—10 business days of receipt of the application ■■ where the entity is an entity to which the RTI Act does not apply — 10 business days of receipt of the application ■■ where the application is made to the information commissioner, RTI

A processing fee is payable for access to document under the RTI Act. You may also be charged access fees under the RTI Act. You should be provided with a Charges Estimate Notice within the 25 business day processing period. If you do not respond to the department of your intention to continue the application within 20 business days of receipt of the Charges Estimate Notice, your application will be taken to be withdrawn.

Internal and External Review of decisions under the RTI Act and IPA If you make an application under the RTI Act or IPA and are unhappy with the response, you NURSES AND THE LAW 5th EDITION 139

Privacy and the right to information

may seek an internal review of the decision by the government department. There are certain circumstances where you are unable to seek a review. These include (and are not limited to): ■■ amount of a charge in a charges estimate notice ■■ a decision made by a health care professional relating to a decision about healthcare. You must apply within 20 business days of the decision for an internal review. If you remain unhappy about the decision you may seek an external review through the Office of Information Commissioner. If you require more information contact the Office of Information Commissioner – Queensland.

Health records Ownership of medical records Ownership of medical records has been a matter considered by the High Court of Australia. The court has held that in the absence of a formal contract between the doctor and patient, there is no implied term in the contractual relationship which entitles the patient to inspect or own their medical records. The duty of a doctor to advise and treat a patient with reasonable care and skill does not impose a general duty to grant access to medical records relating to the patient. The patient has no proprietary interest in the documents comprising their medical records or in the information contained in the documents. 140 NURSES AND THE LAW 5th EDITION

There is no common law principle in Australia of a patient’s right to know the content of their medical records in the possession of the doctor.

Access to records There is no common law right which allows an individual to access their private medical record. However, despite the restrictions on access in most Australian jurisdictions, there are a number of mechanisms which allow for information to be given to a patient or their legal advisor. These include: ■■ freedom of information legislation, such as the RTI Act 2009 (Queensland) or the Freedom of Information Act 1982 Commonwealth for government records ■■ for private health records – Australian Privacy Principle (APP) 12 in the Privacy Act deals with access to personal information (including health information) ■■ My Health Records Act 2012 (Commonwealth) ■■ Information Privacy Act 2009 (Queensland) ■■ government policy ■■ pursuant to a court process.

Public records RTI legislation Queensland gives a statutory right for an individual to access their personal medical/health records held by a public authority (other than the Mater Public Hospital) but does not affect private health care facilities or private practitioners. The Freedom of Information Act 1982 (Commonwealth) (FOI Act) covers federal government agencies and gives a statutory right to an individual to access their medical records held by a federal government agency

unless the agency is required or authorised to refuse access to that information under the FOI Act or another Federal law.

Access and the court process Where judicial proceedings have been commenced then the various rules of court and legislation relating to evidence allow for access to individual records. This generally occurs in what is known as a ‘disclosure’ or ‘discovery’ process.

Records as evidence There are statutory provisions or Rules of Court concerning disclosure or discovery of medical records obtained for the purposes of litigation. Medical records can also be subpoenaed — that is, required to be produced in a court. For records to be protected by legal professional privilege, it must be shown that they were created for the sole purpose of being submitted for legal advice.

Digital Health Records The Personally Controlled Electronic Health Record (PCEHR) or eHealth record is now being replaced by the My Health Record system. The My Health Records Act 2012 (My Health Records Act), My Health Records Rule 2016 and My Health Records Regulation 2012 create the legislative framework for the digital health record system. The Australia Digital Health Agency was established in 2016 to have oversight of the integration and operation of digital health systems in Australia. For more information go to: www.digitalhealth.gov.au

My Health Record contains online summaries of an individual’s health information, such as medicines they are taking, any allergies they may have and treatments they have received. A My Health Record allows an individual’s doctors, hospitals and other healthcare providers (such as physiotherapists) to view the individual’s health information, in accordance with their access controls. Individuals are also able to access their record online. The system also enables individuals to add Medicare information, and to create their own personal health summary and health notes. My Health Record system was originally established as a self-register model but became opt-out at the end of 2018 which means that as of early 2019 every Australian who does not already have a record will automatically be registered to have a My Health Record, unless they choose not to have one. The My Health Records Act limits when and how health information included in a My Health Record can be collected, used and disclosed. Unauthorised collection, use or disclosure of My Health Record information is both a breach of the My Health Records Act and an interference with privacy. The Office of Australian Information Commission (OAIC) regulates the privacy provisions relating to My Health Record. The OAIC has a range of functions under the My Health Record system, including: ■■ investigating complaints about the mishandling of personal information in a My Health Record ■■ providing education and guidance about privacy for individuals, healthcare providers, NURSES AND THE LAW 5th EDITION 141

Privacy and the right to information

the System Operator and other participants in the system ■■ accepting data breach notifications from participants in the My Health Record system. The OAIC also has a range of enforcement powers under the Privacy Act 1988 (Privacy Act) and My Health Records Act, including: ■■ accepting enforceable undertakings to restrain or require particular conduct ■■ using Privacy Act enforcement mechanisms, such as making determinations ■■ seeking an injunction to restrain or require particular conduct ■■ seeking a civil penalty order from a Court.

142 NURSES AND THE LAW 5th EDITION

Recording conversations The QNMU is often asked about the legitimacy of using recording devices and subsequently using what is recorded. While legally in Queensland a party to a conversation may record it (though there are restrictions on how the recording can be used) the QNMU advises the general principle that if you want to record someone, seek their permission first. For more information Refer to the Invasion of Privacy Act 971 (Queensland).

Confidentially matters

Professional and ethical obligations For nurses and midwives, the duty to protect a patient’s confidentiality is outlined in the professional standards of the Nursing and Midwifery Board of Australia (NMBA).

Breach of confidentiality – legal actions There are a number of legal grounds which can support an action for breach of a confidence:

The professional standards are provided in the codes of conduct, codes of ethics, guides to professional boundaries, and standards for practice/competency standards.

■■ Breach of contract - where a contract exists between the parties, breach of confidence may be a breach of an implied term of the contract.

The Code of Conduct and Code of Ethics for both nurses and midwives state that they are to treat personal information obtained in a professional capacity as private and confidential.

■■ Negligence - a breach of confidence may represent a failure to exercise reasonable care (not dependent upon contract), and therefore be actionable as negligence. Carelessly revealing confidential information about the condition of a patient may amount to a breach of the duty of care.

For more detail refer to Chapter 4: Professional Practice Issues.

Duty not to disclose As a general principle in common law, those who receive information in confidence should not disclose it. The duty is to avoid telling unauthorised persons details that are confidential and ensuring that confidential information does not fall into the wrong hands.

■■ Defamation - if confidential information becomes disclosed, the patient may wish to take action for any damage done to their reputation and any embarrassment they have suffered. To demonstrate that the patient has been defamed, there are several elements that need to be established. First, the information must be defamatory in nature. Second, the NURSES AND THE LAW 5th EDITION 143

Confidentially matters

information must have been published to a third party. Third, the disclosure and information must be reasonably likely to cause damage to the patient. Finally, the patient must show that they have suffered damage to their reputation. If the action is successful, damages can be awarded along with other remedies such as an apology and retraction. ■■ Criminal Defamation - defamation can also be a criminal offence under the Criminal Code of Queensland. Criminal defamation is when the author has no regards for the truth or falsity of the statement and has published it to cause serious harm to the other person. If found guilty, a maximum punishment of three years imprisonment may be imposed. However, defamation disputes are generally civil in nature and an individual will be prosecuted only when their actions are particularly malicious. ■■ Equity – the duty to preserve confidential information may lie under the doctrine of good faith. This broad principle states that when a party in a position of power receives confidential information, they must not disclose it without a valid excuse. To get equitable relief for breach of confidence, three elements must be satisfied. First, the information must be confidential in nature. Second, there must be an implied duty of confidence. Third, the information must be released or threatened to be released to the detriment of the patient. If the action is successful, remedies such as equitable damages can be awarded or equitable injunctions can be enforced to stop the information’s disclosure. There are also certain statutory provisions which require the keeping of confidence. 144 NURSES AND THE LAW 5th EDITION

Statutory duties concerning confidentiality The Hospital and Health Boards Act 2011 Qld mandates that a designated person must not disclose, directly or indirectly, confidential information to another person unless the disclosure is required or permitted under this Act. All Hospital and Health Service employees come under the definition of a designated person and as such, they must not disclose patient information. However, the Act outlines several circumstances when confidential information is permitted to be disclosed.

Justified disclosure Disclosure of information is sometimes justified in certain circumstances such as public duty.

All Hospital and Health Service employees... must not disclose patient information.

Generally the notion of public interest concerns balancing the benefits and any detriment of disclosure. For example, disclosure of information to law enforcement authorities is justified where the information is required in the course of an investigation of an actual or reasonably apprehended breach of criminal law. The law recognises an important public interest in maintaining professional duties of confidence but these duties may be overridden where there is held to be a stronger public interest in disclosure. Some examples of public interest disclosure include reporting of suspected cases of child abuse and reporting of notifiable diseases. Under the Hospital and Health Boards Act disclosure is justified where: ■■ it is permitted by an act or law ■■ the patient has consented to the release of their information

Disclosure pursuant to the giving of evidence There is no common law privilege in respect of communications between patients and health care professionals such as exists between a lawyer and their client. In Hill v Minister for Community Services and Health (1991) 102 ALR 66, it was held that in the absence of specific statutory provision, there is no Australian authority to support a claim of medical professional privilege. In the Northern Territory, Tasmania and Victoria, there has been limited statutory protection to certain patient/doctor communications. In all other jurisdictions, a health professional can be compelled to disclose patient information.

Consent Where the patient has given express or implied consent there can be no civil action for breach of confidence.

■■ the disclosure is for the care or treatment of the person to whom the information relates

Documentation and confidentiality

■■ the disclosure is about the general condition of the patient and is communicated in general terms

The starting point for understanding documentation is that it is for the purpose of a record.

■■ the disclosure is done to a person who has sufficient interest in the patient’s wellbeing ie. the patient’s regular GP or spouse

In the case of a medical record it is to facilitate an optimal patient outcome through the accurate, objective, and contemporaneous description of the ongoing care.

■■ the disclosure will prevent or lessen a serious risk to the health and safety of the patient or public ■■ the disclosure is made to the Health Ombudsman ■■ the disclosure is for the safety and wellbeing of a child.

The record serves as a method of communication from one health professional or group of health professionals, to another. Records may be used for research purposes, as educational tools, and as documentary evidence in legal proceedings. NURSES AND THE LAW 5th EDITION 145

Information in a hurry

Emergency legal situations We strongly suggest that your first step is to contact the QNMU, as we may need to notify the QNMU PII insurer. Call Member Connect on 3099 3210 or 1800 177 273 (toll-free outside Brisbane).

Know your rights when making statements or giving interviews Do not make any statements (other than simple incident reports) until you have contacted the QNMU for advice. You are not obliged to give a statement to the police in relation to any investigation they may be conducting. You are only required to give the police your name and address. You should always seek advice from the QNMU before agreeing to be interviewed by, or giving a statement to police, your employer or other party (e.g. your employerâ&#x20AC;&#x2122;s lawyer). If you believe that any statement you make may incriminate you or make you liable in an action for negligence, then you should politely decline to make any report to any person in authority until such time as legal advice is received.

Never be pressured into making a statement in these circumstances Refrain from discussing the issue with any other staff members. 146 NURSES AND THE LAW 5th EDITION

You must be given adequate time to prepare and seek advice on any statement you make. You should not initially refuse to provide a statement, but you should make it clear that you require time to prepare and seek advice about the matter. If the statement is required in a matter involving a patient, ask for access to the patient’s medical and nursing chart. You must be given the opportunity to sit down and read the patient’s file before making any statement. Health agencies should maintain records for at least seven years from the last entry. For babies, this period extends to when the child reaches the age of 21.

A guide to accessing legal representation as a QNMU member The QNMU may provide legal services to financial members for some employment and professional matters, if the matter is one that is not covered by our expert Servicing Team. Assistance may be provided in the form of advice, representation or referral to legal practitioners. Unfinancial members (members that owe membership fees of three months in accordance with The Rules of the Queensland Nurses and Midwives’ Union) are not entitled to legal services or any of the privileges of membership.

How to access the QNMU’s legal services You should contact the QNMU in the first instance to discuss your issue with staff on our Member Connect hotline. If you are calling from Brisbane, you should ring 3099 3210. If you are calling from outside of Brisbane, you should ring 1800 177 273.

At this stage, you may be asked to submit an online Member Request for Representation (RFR) form. Visit www.qnmu.org.au/rfr to access the Member Request for Representation Form. Note: Some matters have definite timeframes in which they must be dealt with. Please advise the QNMU as soon as possible if you believe you have a matter which may need legal assistance.

Employment-related assistance The QNMU provides assistance to financial members for employment-related matters in the following instances. 1. Advice is provided for: a. WorkCover claims, including WorkCover applications and rehabilitation programs b. Nursing and Midwifery Board of Australia (NMBA) matters where concerns about your competence, health or conduct are raised c. anti-discrimination matters prior to lodging a complaint before the Anti-discrimination Commission Queensland d. complaints about your conduct as a nurse or midwife lodged with the Office of the Health Ombudsman (OHO). Please note this includes unregistered AINs/PCAs. 2. Legal representation is provided for: a. NMBA matters where members are required to – NURSES AND THE LAW 5th EDITION 147

Information in a hurry

i. respond to a notification regarding their conduct, competency or health ii. respond to the particulars of a complaint under investigation by OHO or AHPRA iii. appear before the Queensland Civil and Administrative Tribunal (QCAT) after action is taken against them in accordance with the National Law. b. WorkCover matters where, after receiving advice from the Union’s lawyers that your case is more likely to succeed than not succeed in pursuing a – i. statutory review, and ii. an appeal c. coronial inquests where – i. the death was previously notified to the QNMU and the insurer in accordance with the QNMU’s professional indemnity insurance policy, and ii. the member is summoned to give evidence before a Coroner’s Court d. civil claims of negligence made against the member which are accepted by the insurer. 3. Members who have a WorkCover claim accepted may be referred to the Union’s lawyers for advice only, on their prospects of success in a common law claim for negligence against their employer. This advice is funded by the QNMU. 148 NURSES AND THE LAW 5th EDITION

4. If a member is successful in recovering costs in any proceedings, the Union may seek reimbursement from the member of any costs paid by the Union on the member’s behalf in launching the proceedings. The Union will not seek reimbursement from the member if costs are not recovered in the proceedings. Please be aware that the Union will not pay for any costs which are unable to be recovered from the other party in this event. The Union will also not pay for costs for other parties if they are awarded against a member. (These matters are always discussed with members involved and they are advised in writing of the Union’s determination with respect to the matter of costs.) 5. The Union does not provide legal representation through its lawyers for the following types of matters: a. criminal proceedings b. defamation claims by members c. civil claims not accepted by the insurer and/or not arising out of employment matters.

The Union will not seek reimbursement from the member if costs are not recovered in the proceedings.

CPD reflective exercise

Completing this reflective exercise will contribute to your Continuing Professional Development (CPD) hours.

Exercise for Nurses and the Law, 5th edition The following questions are offered as a guide to assist you in reflecting upon the information received or skills applied in the CPD activity.

The Nursing and Midwifery Board of Australia requires all nurses and midwives to complete a minimum of 20 hours CPD per registration year for each respective profession for which the individual holds current registration.

1. Select one chapter between chapter 3 and chapter 10 in Nurses and the Law, 5th edition.

For example, an individual who is a Registered Nurse and a midwife must complete 40 hours of CPD.

2. What application does the content of this chapter have for your context of practice? 3. After reading the chapter, what were the key elements you learnt and how you will apply these in the context of your practice?

Please refer to www.nursingmidwifery board.gov.au/Registration-Standards.aspx for full details. Effective learning is not simply reading a journal article — it requires you to reflect on your readings and integrate new information where it is relevant to improve your practice. It should include:

■■ looking for learning points/objectives within the content on which you reflect

■■ considering how you might apply these

4. Can you provide any examples of inconsistencies between the chapter content and the professional practices at your workplace? If so, what role can you play in improving, changing or raising awareness about this matter in your workplace? 5. After reading the chapter, what personal attributes might you maintain, change or improve for better practice? Why?

in other situations to enhance your performance

■■ changing or modifying your practice in response to the learning undertaken.

THE FOLLOWING IS AN EXAMPLE ONLY OF A RECORD OF CPD HOURS

(based on the ANMF continuing education packages): Date

01-092017

Source or provider details InScope Journal

Identified learning needs

Action Plan

Type of activity

Description of topic/s covered during activity and outcome

Reflection on activity and specification to practice

Increase Read SelfCriteria and resources Answered reflective knowledge re article and directed relevant to delegation exercise questions. Read Delegation & answer and required levels relevant NMBA codes & Supervision reflective of supervision. guidelines. Translated questions Increased knowledge knowledge into practice re delegation and and discussed with supervision of EN/AIN. colleagues.

No./Title/ Description of evidence provided

CPD hours

Journal article with reflective exercise questions.

2.5 hrs

NURSES AND THE LAW 5th EDITION 149

Bibliography and resources

Legal texts Butterworths Concise Australian Legal Dictionary, 2nd Edition (1998). Butterworths Australia, citing R v Bateman (1925) 19 Cr App R 8. Forrester, K & Griffiths, D. Essentials of law for health professionals, 2nd Edition (2005). Elsevier. Marickville, New South Wales. Gilbert, Christopher D. Queensland Administrative Law. (1994). Law Book Co. Sydney Staunton, P & Chiarella, M. Nursing and the Law, 8th Edition (2016). Elsevier Australia. Sydney.

■■ Endorsement for scheduled medicines registered nurses (rural and isolated practice) registration standard

Codes and Guidelines www.nursingmidwiferyboard.gov.au/ Codes-and-Guidelines.aspx ■■ Guidelines and Assessment Frameworks for Registration Standards ■■ Professional Practice Guidelines ■■ Competency Standards ■■ Code of Ethics and Professional Conduct

The Queensland Law Handbook (online edition). Caxton Legal Centre Inc. Brisbane. https://queenslandlawhandbook.org.au/the-

■■ Principles for the Assessment of National Competency Standards

queensland-law-handbook/

■■ Professional Boundaries

NMBA materials

Other materials

Registration standards www.nursingmidwiferyboard.gov.au/ Registration-Standards.aspx ■■ Registration standard for eligible midwives ■■ Registration standard for endorsement for scheduled medicines for midwives ■■ Criminal history registration standard ■■ English language skills registration standard ■■ Professional indemnity insurance registration standard ■■ Continuing professional development (CPD) registration standard ■■ Recency of practice registration standard ■■ Endorsement of nurse practitioner’s registration standard 150 NURSES AND THE LAW 5th EDITION

■■ Decision Making Framework

Ainsworth, Frank. Mandatory reporting of child abuse and neglect: Why would you want it? [online]. Developing Practice: The Child, Youth and Family Work Journal; 4; Winter 2002; 5-8. Australian Commission on Safety and Quality in Health Care. www.safetyandquality.gov.au Cashmore, Judy. Mandatory reporting: Is it the culprit? Where is the evidence? [online]. Developing Practice: The Child, Youth and Family Work Journal; 4; Winter 2002; 9-12. Harries, M & Clare, M. Mandatory Reporting of Child Abuse: Evidence and Options. [online]. Report by the Discipline of Social Work and Social Policy, University of Western Australia, for the Western Australian Child Protection Council; July 2002. www.celt.uwa.edu. au/__data/assets/pdf_file/0009/1102131/ MRFinalReport.pdf

Health Care Improvement Unit. Queensland Government Clinical Excellence Division. https://clinicalexcellence.qld.gov.au/about-us/ what-we-do/healthcare-improvement-unit

The Health (Drugs and Poisons) Regulation 1996: What Nurses Need to Know. Environmental Health Unit, Queensland Health; April 2000.

Hill v Minister for Community Services and Health (1991) 102 ALR 66.

Tomison, Adam. Mandatory Reporting: A Question of Theory versus Practice [online]. Developing Practice: The Child, Youth and Family Work Journal; Issue 4; Winter 2002; 13-17.

Holland, G. Mandatory reporting of abuse: The influence of legislation on doctors’ reporting behaviour. Youth Studies Australia; vol 18; no 2; 1999; 30-36. Lister v Romford Ice (1957) AC 555; Wylie v. The ANI Corporation Ltd [2002] 1 Qd. R. 320. Minister for Health & Minister for Sport, Media Release “e-Health Record Review”; 20 December 2013. Minister for Health & Minister for Sport, Media Release “Report into the Personally Controlled Electronic Health Record”; 19 May 2014. Office of the Australian Information Commissioner. www.oaic.gov.au Open Disclosure Framework. Australian Open Disclosure Standard. Australian Commission on Safety and Quality in Healthcare. www.safetyandquality.gov.au/publications/ australian-open-disclosure-framework Office of the Information Commissioner Queensland. www.oic.qld.gov.au Quinton, P. Mandatory Reporting paper prepared by Peter Quinton. Issues paper (ACT Community Law Reform Committee) no. 9; 1991. Australian Capital Territory Community Law Reform Committee. Canberra. Resource Sheets; Resource Sheet No 3 August. Mandatory reporting of child abuse. 2007, National Child Protection Clearinghouse, Australian Institute of Family Studies.

Websites of interest ■■ Ageing and Aged Care (Federal Department of Health) https://agedcare.health.gov.au/ ensuring-quality/aged-care-qualityand-compliance/aged-care-quality-andcompliance-resources ■■ Anti Discrimination Commission Queensland www.adcq.qld.gov.au ■■ Australian Commission on Safety and Quality in Health Care www.safetyandquality.gov.au ■■ Australian Digital Health Agency www.digitalhealth.gov.au ■■ Australian Health Practitioner Regulation Authority www.ahpra.gov.au ■■ Australian Nursing and Midwifery Accreditation Council www.anmac.org.au ■■ Department of Health www.health.gov.au ■■ Fair Work Commission www.fwc.gov.au ■■ Fair Work Ombudsman www.fairwork.gov.au ■■ Federal Register of Legislation www.legislation.gov.au ■■ My Health Record www.myhealthrecord.gov.au ■■ Office of the Australian Information Commissioner www.oaic.gov.au ■■ Office of the Information Commissioner Queensland www.oic.qld.gov.au NURSES AND THE LAW 5th EDITION 151

Bibliography and resources

■■ Office of the Queensland Parliamentary Counsel – Queensland Legislation www.legislation.qld.gov.au/OQPChome.htm ■■ Nursing and Midwifery Board of Australia www.nursingmidwiferyboard.gov.au ■■ Queensland Nurses and Midwives’ Union www.qnmu.org.au ■■ Queensland Industrial Relations Commission (QIRC) www.qirc.qld.gov.au ■■ Industrial Relations (Queensland Treasury) www.treasury.qld.gov.au/fair-and-safework/industrial-relations

■■ Family Law Act 1975 (Cth) ■■ Freedom of Information Act 1982 (Cth) ■■ Guardianship and Administration Act 2000 (Qld) ■■ Health Act 1937 (Qld) ■■ Health (Drugs and Poisons) Regulation 1996 (Qld) ■■ Health Practitioner Regulation National Law Act 20 ■■ Hospital and Health Boards Act 2011 (Qld) ■■ Health Ombudsman Act 2013 (Qld)

■■ The Queensland Law Handbook https://queenslandlawhandbook.org.au/ the-queensland-law-handbook

■■ Industrial Relations Act 2016 (Qld)

■■ Workplace Health and Safety Queensland www.worksafe.qld.gov.au

■■ Law Reform Act 1995

■■ WorkCover Queensland www.worksafe.qld.gov.au ■■ Workers’ Compensation Regulator www.worksafe.qld.gov.au

■■ Information Privacy Act 2009 (Qld) ■■ Invasion of Privacy Act 1971 (Qld) ■■ Mental Health Act 2016 (Qld)My Health Records Act 2012 (Cth) ■■ Police Powers and Responsibility Act 2000 (Qld) ■■ Powers of Attorney Act 1998 (Qld)

Legislation

■■ Privacy Act 1988 (Cth)

■■ Aged Care Act 1997 (Cth)

■■ Private Health Facilities Act 1999 (Qld)

■■ Age Discrimination Act 2004 (Cth)

■■ Public Health Act 2005

■■ Anti-Discrimination Act 1991 (Qld)

■■ Public Interest Disclosure Act 2010

■■ Child Protection Act 1999 (Qld)

■■ Public Service Act 2008

■■ Coroners Act 2003 (Qld) ■■ Civil Liability Act 2003 (Qld)

■■ Queensland Civil and Administration Tribunal Act 2009 (QCAT)

■■ Criminal Code Act 1899 (Qld)

■■ Right to Information Act 2009 (Qld)

■■ Criminal Law (Rehabilitation of Offenders) Act 1986 (Qld)

■■ Sex Discrimination Act 1984 (Cth)

■■ Defamation Act 2005 (Qld)

■■ Transplantation and Anatomy Act 1979 (Qld)

■■ Disability Services Act 2006 (Qld)

■■ Workplace Health and Safety Act 2011 (Qld)

■■ Fair Work Act 2009 (Cth)

■■ Workplace Health and Safety Regulation 1997

■■ Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (Cth) ■■ Fair Work (Registered Organisations) Act 2009 (Cth) 152 NURSES AND THE LAW 5th EDITION

■■ Workers’ Compensation and Rehabilitation Act 2003 ■■ Working with Children (Risk Management and Screening) Act 2000 (Qld)

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