australian nursing federation

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1 australian nursing federatin Submissin t the public cnsultatin n the Nursing and Midwifery Bard f Australia draft Guidelines fr prfessinal indemnity insurance arrangements fr nurses and nurse practitiners January 2013 Lee Thmas Federal Secretary Yvnne Chapern Assistant Federal Secretary Australian Nursing Federatin PO Bx 4239 Kingstn ACT 2604 T: F: E:

2 Intrductin The Australian Nursing Federatin (ANF) was established in The ANF is the largest prfessinal and industrial rganisatin in Australia fr nurses and midwives, with Branches in each State and Territry f Australia. The cre business f the ANF is the prfessinal and industrial representatin f ur members and the prfessins f nursing and midwifery. The ANF has membership f ver 220,500 nurses, midwives and assistants in nursing wh are emplyed in a wide range f enterprises in urban, rural and remte lcatins in bth the public and private health and aged care sectrs. The ANF participates in the develpment f plicy relating t: nursing and midwifery practice, prfessinalism, regulatin, educatin, training, wrkfrce, and sci-ecnmic welfare; health and aged care, cmmunity services, veterans affairs, ccupatinal health and safety, industrial relatins, scial justice, human rights, immigratin, freign affairs and law refrm. The ANF Federal Office, in cnsultatin with the ANF State and Territry Branches and legal advice, has cnsidered the draft Guidelines fr PII arrangements fr nurses and nurse practitiners. Cmments belw relate generally t previus cnsultatins n the Nursing and Midwifery Bard f Australia s (NMBA) Prfessinal indemnity insurance (PII) arrangement registratin standard and Guidelines fr prfessinal indemnity insurance (PII) arrangements fr midwives and specifically t the newly develped draft Guidelines fr prfessinal indemnity insurance (PII) arrangements fr nurses and nurse practitiners. NMBA Prfessinal indemnity insurance arrangements registratin standard and Guidelines fr prfessinal indemnity insurance arrangements fr midwives The ANF has viced cncerns t the NMBA during previus cnsultatins in relatin t significant issues with bth the NMBA PII arrangements registratin standard and Guidelines fr PII arrangements fr midwives. Issues with the current Guidelines fr PII arrangements fr midwives remain unreslved. The current cnsultatin n the newly develped Guidelines fr PII arrangements fr nurses and nurse practitiners by the NMBA therefre prvides the pprtunity t yet again, state the ANF s n-ging unreslved cncerns. In the ANF submissin t the NMBA cnsultatin prvided in May 2011 n the revised NMBA PII arrangements registratin standard, a request was made t delete the prpsitin in the Standard that: Nurses and midwives in a genuine emplyment r student relatinship wuld be cvered vicariusly by the emplyer s r educatin institutin s insurance. As previusly stated in ur submissin, the ANF was f the view that this prpsitin was misleading and cnfusing.

3 - 2 - We went n t state that embedded in what is a statement f pinin, are a set f assumptins as t the existence f a cntract f insurance and such insurance cntaining an extensin f cver clause applying t the emplyer s emplyed nurses and midwives. There is n legal bligatin n emplyers t prvide insurance that extends t nurses in respect f their liability. If the NMBA cnsider that the fact f genuine emplyment in Australia is f itself adequate t prvide apprpriate PII cver fr nurses and midwives it shuld say s in clear terms. If nt, then the prpsitin shuld be mitted. In either case, the ANF suggested that the prpsitin shuld be deleted. Subsequently, the NMBA remved this statement frm the NMBA PII arrangements registratin standard. Disappintingly, hwever, reference t this issue remains in the Guidelines fr PII arrangements fr midwives, despite the ANF feedback. The Guidelines fr PII arrangements fr midwives cntinues t state in Figure 1 n page 2 that: Emplyer usually prvides PII cverage fr emplyees, BUT midwife des need t determine if he r she is cvered and Midwife des nt need t purchase insurance if apprpriate PII is prvided by emplyer It is the ANF s distinct understanding that emplyers, in fact, prvide vicarius liability cver and nt PII as has been asserted in the Guidelines fr PII arrangements fr midwives. The ANF cnsiders the abve statements t be incrrect. As the newly develped draft Guidelines fr PII arrangements fr nurses and nurse practitiners are mdelled almst entirely n the Guidelines fr PII arrangements fr midwives, this same issue remains. The NMBA s representatin in these guidelines that nurses and midwives are cvered fr PII by emplyer insurance is misleading and will prmpt them t rely upn that representatin t their detriment. It can be expected that emplyers will als rely heavily n such representatins in advising their nursing and midwifery staff that they meet the NMBA PII Registratin Standard thrugh the emplyers insurance. This advice frm emplyers will further dissuade nurses and midwives frm undertaking their wn due diligence as required by bth the Standard and Guidelines. It is therefre f utmst imprtance that nurses and midwives understand that they are required t ensure that they d in fact have PII insurance which cvers negligent acts and includes run-ff cver. The purpse f the NMBA, and subsequently the Bard s Registratin Standards, is t prtect the public and t guide the prfessin. As the PII Registratin Standard is in place t ensure public prtectin, it fllws that the guidelines shuld have the same bjective. The NMBA has a duty t prvide prfessinally accurate advice and infrmatin t nurses and midwives that they may rely upn. Each Bard member f the NMBA shares this cmmn law duty fr the prvisin f this advice. Prvisin f misleading advice which prmpts nurses and midwives t infer that their emplyer s insurance prvides indemnity fr negligent acts, when in fact this is nt the case, may result in harm t thse receiving care. Shuld this ccur, the NMBA will have failed t meet its statutry bligatin under the Natinal Law t prtect the public.

4 - 3 - Draft Guidelines prfessinal indemnity insurance fr nurses and nurse practitiners The premise f the draft guidelines is t prvide directin and further detail abut the requirements fr PII arrangements in the Registratin Standard hwever this seems t be an unwieldy tl that des nt necessarily prvide the clarity required. It appears t be an almst exact replicatin f the Guidelines fr PII arrangements fr midwives. These guidelines make n reference t being applicable t enrlled nurses, wh als require PII t practice. What is the NMBA s intentin fr the prvisin f guidance t enrlled nurses n the issue f PII arrangements? Specific cmments: Scpe f Insurance required (Pages 4 and 5) In rder t understand what cnstitutes apprpriate PII arrangements fr each registered nurse r nurse practitiner, the Natinal Bard prvides the fllwing infrmatin that registered nurses and nurse practitiners are required t cnsider: the practice setting and type f services and care prvided the client grup the vlume f clients t whm treatment, advice, guidance r care is prvided by the registered nurse r nurse practitiner the health status f the registered nurse r nurse practitiner s client grup previus histry f insurance claims and the type f claim made against the registered nurse r nurse practitiner n the past, if any the prfessinal experience f the registered nurse r nurse practitiner advice frm the indemnity insurers, prfessinal assciatins and industrial rganisatins, including advice regarding the histry and vlume f prfessinal liability claims experience by ther members f the prfessin, prvided by a relevant prfessinal rganisatin advice f an insurance brker the registered nurse r nurse practitiner s current emplyment status an emplyee wrking exclusively in public r private health services, r in private medical practices wrking as a sle practitiner (either full time r part time basis) wrking in businesses wned by the registered nurse r nurse practitiner r in a partnership r cllective; r where a registered nurse r nurse practitiner is emplyed (full-time r part-time) by a cmpany that is wned slely by the registered nurses r nurse practitiners where the nly directrs f that cmpany are registered nurses r nurse practitiners wrking fr part f the time as an emplyee and fr anther part f their time as a registered nurse r nurse practitiner in private practice prviding nursing r nurse practitiner services in a vluntary, subsidised r therwise unpaid capacity

5 - 4 - This sectin des nt prvide fr mre clarity as there is n guidance as t the applicatin f the cnsideratins. The fllwing questins are raised: Pint 1 the practice setting Wuld a nurse in a reginal r rural setting require mre PII as there may be less medical and general resurces available? Pint 4 cnsider the health status f client grup Des this mean multiple c mrbidities are mre f an issue than acute episdes f care? Shuld a nurse wrking in aged care require mre r less PII than a nurse wrking in an Intensive Care Unit? Pint 6 the prfessinal experience f the registered nurse r nurse practitiner Des the less experienced r mre experienced nurse (with greater respnsibility) require mre r less PII cver? Pint 7 advice frm. Which prfessinal rganisatin wuld have the cmplete knwledge f the number and histry f claims? Where an emplyer is suppsedly prviding PII thrugh their vicarius liability hw is the individual nurse r nurse practitiner t access this infrmatin t ask advice? Pint 9 the registered nurse r nurse practitiner emplyment status What is the difference between vluntary r therwise unpaid capacity? This last pint n vlunteer wrk shuld stipulate within Australia (this is mentined later in the examples). Des nt cver ther areas f emplyment, fr example schl nurses, wh d nt fall within wrking in either public r private health services categries. Run-ff cver (Page 5) Registered nurse r nurse practitiners are required t maintain run-ff cver fr the whle time after they have ceased t practice privately t be prtected against claims that may arise in the future. The fllwing questins are raised: Is this until death? Is there a time limit? Des this mean registered nurses and nurse practitiners emplyed in public r private health services are nt required t have run ff cver? This statement is unclear and cnfusing if the intent is fr all registered nurses and nurse practitiners t cntinue t maintain run-ff cver.

6 - 5 - Run-ff cver scheme (Page 5) and Emplyed registered nurses and nurse practitiners (Page 5) These tw headings are ne after the ther with n cntent in between - presumably there is infrmatin missing after the Run-ff cver scheme heading as the cntent under Emplyed registered nurses and nurse practitiners des nt relate t the run-ff cver scheme. As this guideline appears t be a cut and paste f the Guidelines fr PII arrangements fr midwives, presumably there is cntent that needs t be included and shuld identify the time perid required fr run-ff cver after cessatin f practice. Emplyed registered nurses and nurse practitiners (Pages 5 and 6) Mst registered nurses and nurse practitiners wh are emplyees are cvered by their emplyers insurance. Emplyed registered nurses and nurse practitiners are advised t check their PII arrangements with their emplying rganisatin. As stated earlier, this statement is incrrect and shuld be remved. Emplyers prvide vicarius liability cver and nt PII as has been asserted. Reliance n the emplyer s vicarius liability insurance as PII culd als lead t situatins f a cnflict f interest between the rganisatin and the individual nurse r nurse practitiner shuld a claim arise (with respect t dual liability r ptential jint liability). Emplyed registered nurses and nurse practitiners als wrking in private practice (Page 6) Sme registered nurses and nurse practitiners may als prvide services t clients while emplyed in public r private health services, r in private medical practices; and may als cnduct part f their practice in private practice where their emplyer s indemnity insurance wuld cver their practice. This is very cnfusing and may need an example, but in additin it appears t cntradict the next paragraph where it states: This may arise in a frmal business arrangement where a Registered Nurse r Nurse Practitiner (generally with the knwledge and agreement f their emplyers) has established a private practice but als wrks as an emplyee in public r private health services, r in private medical practices. Registered nurses and nurse practitiners wrking in private practice and wrking as emplyees must have their wn PII arrangements in place t cver the services they prvide fr their private clients. One statement suggests they wuld be cvered by their emplyer s insurance and the secnd states they must have their wn PII. It is mst unlikely that an emplyed nurse wrking utside f their emplyment in a private capacity wuld be cvered by insurance prvided in their emplyed psitin. It appears there has been an errr in the first paragraph detailed abve which suggests that the emplyer s insurance wuld cver their practice when in fact it shuld state that it wuld nt cver their practice. There als needs t be clarity in relatin t the situatin where a nurse may vlunteer their services nt as a nurse but as a first aider. Wuld the requirement fr PII still ccur? There is n mentin here f Gd Samaritan acts. This shuld be identified as either an act that wuld require PII r nt.

7 - 6 - Registered nurses and nurse practitiners in private practice (Page 6) The first paragraph in this sectin is very cnfusing and wuld perhaps benefit frm each pint/example being separated with a new line. The last pint in this paragraph states: Private nursing r nurse practitiner practice is where the nly directrs f that cmpany are practicing registered nurses r nurse practitiners. If the cmpany has registered nurses r nurse practitiners as directrs but they als emply ther nurses r nurse practitiners des this apply r nly in a limited fashin? Is this statement trying t express that if the nly practising registered nurses r nurse practitiners are als directrs f that cmpany then each practising registered nurse r nurse practitiner wuld require PII? Definitins (Page 7) Run-ff cver means insurance that prtects a practitiner wh has ceased a particular practice against claims that arise ut f, r are a cnsequence f, activities that were undertaken when he r she was cnducting that practice r business. This type f cver may be included in a PII plicy r may need t be purchased separately. There is n reference t the time perid required fr run- ff cver. The extent f runff cver required in accrdance with persnal injury law varies acrss the state and territry jurisdictins. The limitatin perids and run-ff cver required fr each f the eight Australian jurisdictins shuld be prvided. Cnclusin The Australian Nursing Federatin is pleased t have been given the pprtunity t prvide submissin t the cnsultatin n the newly develped Guidelines fr PII arrangements fr nurses and nurse practitiners. We are keen fr the nging issues in relatin t the Guidelines fr PII arrangements fr midwives t be reslved by the NMBA. Given the cncerns utlined in ur submissin, the ANF requests that the issues identified with the existing Guidelines fr PII arrangements fr midwives are addressed and that the draft Guidelines fr PII arrangements fr nurses and nurse practitiners are als amended accrdingly.

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