Health Alert. Workplace safety for mental health workers. November Considerations relating to penalty. Facts of the case

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1 Health Alert November 2013 Workplace safety for mental health workers In recent months there has been an increased media focus on the safety of mental health workers who need to deal with violent and aggressive patients. A new decision of the NSW Industrial Relations Commission has clarified the steps that an employer must take in order to provide a safe system of work for its health workers. Inspector Walker v On Track Community Programs Limited [2013] NSWIRComm 87 was a prosecution for breach of s 8(1) of the Occupational Health and Safety Act 2000 (NSW); similar provisions exist in safety legislation around Australia. Facts of the case A mentally ill client killed a health support worker who attended the client s residence. The IRC heard that the worker had not complied with the employer s Home Visiting Policy or the OHS Policy Manual. However, the employer had failed to properly assess the risks presented by this particular client who was assessed as low risk when he should have been assessed as moderate to high risk of violent behaviour. No discharge summary explaining the nature of his condition when last discharged from hospital was available to assist the employee. Considerations relating to penalty The employer pleaded guilty to failing to provide a safe system of work without risk to health. In sentencing the employer, IRC Vice President Michael Walton found that it had been reasonably foreseeable that the client would pose a serious risk to health and safety due to his history of mental illness and his unpredictable and violent nature. The absence of a discharge summary increased the risk to employees because less information was available to protect them. The discharge summary should have been obtained and reviewed before providing the client with accommodation and allowing workers to deal with him and it would have been fairly simple to do this. Following the incident, the employer revised its policies to require the production of discharge summaries before accepting recommendations of clients for its services. Vice President Walton also took into consideration that the employer had some safe work systems in place before the incident. The employer s Home Visiting Policy and OHS Policy Manual addressed the steps that the worker should have taken before attending the client s residence. The worker had failed to comply with these requirements and it was unclear why he did not do so. The maximum penalty for the offence at the time was $550,000. Vice President Walton fined the employer $115,000, following discounts for its early guilty plea, cooperation and the steps that it had taken post-incident to reform its safety system. If the offence occurred now, the maximum penalty could range between $500,000

2 and $3,000,000 under the Work Health and Safety Act 2011 (NSW). Employer considerations Employers should review any policies that deal with workplace violence and aggressive and/or mentally ill clients. There should also be an emphasis on training employees about these policies to ensure that safety systems are properly adhered to at all times. The management of risks should be prioritised according to the hierarchy of controls. There are a range of best practice guidelines provided by individual state regulators that provide assistance in implementing effective policies and systems to ensure the safety of employees, particularly when dealing with workplace violence. Jacquie Seemann Partner Marion Cole Senior Associate New federal government policy changes We take a brief look at the current status of some key areas subject to policy change under the new federal government, including: e-health; aged care; and ACNC. E-health records When the liberal government was sworn in, Tony Abbott vowed to overhaul the $700 million e-health system. The Australian Medical Association has called for the government to overhaul the scheme, with president Steve Hambleton fearing concerns over privacy have trumped common sense. In recent years, most doctors, have continued to provide strong in-principle support for shared electronic health records for patients, but some have been campaigning for an overhaul of the current e-health system. At the beginning of September 2013, around 650,000 people had registered for the personally controlled e-health record system. However, only approximately 4,000 shared health summaries have been created. A health summary is created by a patient s GP and contains details of diagnoses, allergies and medications. Health Minister Dutton considers that the system may perform much better with greater consumer involvement. Perhaps even more so, if clear financial incentive was given to GPs to spend the time inputting all the information into the patient records. The big issue facing the government is finding appropriate methods of improving the infrastructure supporting the current data transfer. The Consumers e-health Alliance has called on the government to establish a truly independent national e-health governing council that comprises medical experts, consumers, the local health IP industry and government agencies. The council would have oversight of a new entity tasked with implementation and operational responsibilities. Indeed the privacy concerns are legitimate as, under the current system, patients are able to delete elements of their e-health record after a doctor has entered information for them. The practical implication is that this enables doctor shoppers or patients who accumulate prescription drugs, to remove records that show their erratic behaviour. In an article dated 11 November published in the Sydney Morning Herald, drug addict Nathan Attard died of a drug overdose whereby 22 doctors overlooked the signs. Had Attard s GP been able to access an electronic record, his doctor shopping habits would have been recorded on the system and his death might have been prevented. It is essential that the e-health records system do not enable patients to delete information or somehow incentivise GPs not to enter the information in the first place. Cost is also an issue, as significant funding will need to be invested in order to make the system easy to use. The implementation of an efficient, useful, national e-health record system will need to overcome these issues as well as the privacy concerns outlined above. Ruth Hood Senior Associate Feng Guo Graduate Lawyer Government foreshadows change to aged care pricing guidelines The government has announced changes to the Aged Care Accommodation Pricing Regime which starts on 1 July The changes mean an increase for the level 3

3 pricing threshold from $455,000 to $550, 000. The government has also removed the requests for price setting documentation and certification that were in the previous government s pricing guidelines. The government will begin consulting on a new, simpler set of guidelines. Lucinda Smith Partner What next for the ACNC? The Coalition has declared an intention to abolish the ACNC and replace it with a Centre for Excellence with ownership of that centre transferred to the not-for-profit sector itself. The centre s stated focus would be on encouraging innovation, education and best practice. We understand from the ACNC that Kevin Andrews, the Minister for Social Services, has indicated that nothing will change until the end of 2014 and in the meanwhile the government will engage in targeted consultations on possible changes. It does seem that whatever happens, some form of register, annual reporting and compliance will be required of charities, whether administered by the ACNC, the ATO or another body. Pending any definite announcements from the government, charities will need to continue complying with ACNC legislation as it now stands. Jim Baillie Special Counsel Legislation update New South Wales National Disability Insurance Scheme (NSW Enabling) Bill 2013 (NSW) The object of this Bill is to authorise and facilitate the transfer of the State s public sector disability services assets in connection with the implementation of the National Disability Insurance Scheme of the Commonwealth. The Bill also makes detailed arrangements for the transfer of the employment and entitlements of public sector disability services employees. New regulations made under the Private Health Facilities Act 2007 (NSW) Private Health Facilities Amendment (Statistical Statements) Regulation 2013 (NSW) The object of this Regulation is to require the licensee of any private health facility to provide a statistical statement to the Ministry of Health each month. Currently, only the licensee of a maternity (level 1 or level 2) class private health facility is subject to the requirement. New regulations made under the Retirement Villages Act 1999 (NSW) Retirement Villages Amendment (Standard Contract) Regulation 2013 (NSW) From 1 October 2013, operator s of retirement villages must use the village contract, general inquiry document and disclosure statement prescribed by this Regulation. It is now an offence for the operator of a retirement village to enter into a retirement village contract that is not in the prescribed form. Queensland Amendment to the Hospital and Health Boards Act 2011 No. 32 (Qld) Industrial Relations (Fair Work Act Harmonisation No. 2) and Other Legislation Amendment Bill 2013 (Qld) This Bill was introduced into the Legislative Assembly on 17 October Its objective is to make amendments which complement the changes in the state s industrial relations framework, including one which gives the chief executive of Queensland Health power to issue a health employment directive that overrides a health service employee s contract. Health Ombudsman Act 2013 (Qld) This Act was passed in Queensland on 20 August 2013, the commencement date yet to be proclaimed. The explanatory notes to the Health Ombudsman Bill 2013 (Qld) state the primary policy objective of the legislation being to strengthen the complaints management system in Queensland. Section 3 of the Act outlines its main objects as follows: to protect the health and safety of the public; to promote professional, safe and confident practice

4 by health practitioners; to promote high standards of service delivery by health service organisations; and to maintain public confidence in the management of complaints and other matters relating to the provision of health services. The Act will be applicable to anyone who provides a service that comes within the definition set out in s7, irrespective of whether or not they are a registered health practitioner under the National Law. The new Health Ombudsman and Director are yet to be appointed, and there are as yet no regulations under the Act. South Australia Amendments to the Health Care Act 2008 No. 3 (SA): Health Care (Administration) Amendment Bill 2013 (SA) Its proposals include: Transfer of functions between incorporated hospitals inserts a new Division 1A into Part 5 which provides that the Governor may transfer all or some of the functions, assets, rights and liability of an incorporated hospital to another hospital and make other provisions he or she considers necessary or expedient in connection with such transfers; and Staffing arrangements inserts new s.89 to provide that an employing authority may appoint other officers or employees in addition to those of the Department and persons employed under Part 5 (Hospitals), who have skills or experience in connection with the provision of health services and who, in the opinion of the employing authority, can assist the Chief Executive or the Director in the performance of his or her functions. Statutes Amendment (Health Information) Bill 2013 (SA) It proposes to insert a requirement to attend medical examination to provide medical information in s.94 which: Creates an offence - punishable by a maximum penalty of $2,500 if an employer directs an employee to attend medical examination unless the employer believes on reasonable grounds that the employee is not fit to perform because of: injury or illness, or there will be a risk to the employee s health or safety if he or she continues to perform the inherent requirements of his or her position (if the employee is undertaking the normal duties) or modified duties (if the employee is undertaking modified duties). Employer must provide the employee with written notice - of the direction setting out the grounds on which the employer believes the examination is necessary for the employee to undertake a medical examination, and this direction must not include a requirement that the employee attend a particular medical practitioner. Creates an offence - punishable by maximum penalty of $2,500 if an employer requests an employee to provide medical information about himself or herself unless the employer has reasonable grounds for believing that: the employee is unfit to perform because of an injury or illness, or there will be risk to the employee s health, safety, work or position if he or she continues to perform. Specifies the requirements - for establishing that an employer has reasonable grounds for believing that an employee is not fit to perform the inherent requirements of his or her position, or the requirements of any modified duties, or there is a risk to an employee s health or safety because of an injury or illness, including that the belief is supported by medical information lawfully obtained from the employee. Amendment to the Health Practitioner Regulation National Law (South Australia) Act 2010 No. 5 (SA): Health Practitioner Regulation National Law (South Australia) (Protection of Title Paramedics ) Amendment Bill 2013 (SA) It proposes to insert a new s120a into Schedule 2 to make it an offence, punishable by a maximum penalty of $30,000 for a person to take or use the title of paramedic unless the person holds qualifications prescribed by the relevant regulations, subject to exemptions granted by the Minister. This applies to the

5 Sydney Melbourne Brisbane Adelaide word paramedic whether with or without any other words, used as a title, name, word or description that, indicates or could reasonably be understood to indicate that he or she is a paramedic. Amendment to the Mental Health Act 2009 No. 28 (SA) Statues Amendment (Health Information) Bill 2013 (SA) Its proposals affect: Confidentiality and disclosure of personal information amends s.106 to clarify that the person engaged or formerly engaged in the administration of the principal Act must not disclose personal information to their employer which was engaged in the course of administration of the principal Act except to the extent that he or she may be authorised or required to do so, and Defines the term employer for the purposes of s.106 of the principal Act. For further information, please click here to contact our national Health, Aged Care and Retirement Villages team This Alert is produced by Thomsons Lawyers. It is intended to provide general information in summary form on legal topics, current at the time of publication. The contents do not constitute legal advice and should not be relied upon as such. Formal legal advice should be sought in particular matters. Liability limited by a scheme approved under Professional Standards Legislation.

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