David Kinnane

Here’s the scenario: you find out a client is receiving an unconventional and risky treatment from an unregistered health practitioner and you’re worried that the treatment is harming your client.

What should you do?

1. First some background

(a) In Australia, speech pathologists are not  “registered health practitioners” 

Speech pathologists are unregistered health practitioners. This means speech pathologists are regulated by governments in the same way as, for example, complementary and alternative medicine practitioners, naturopaths, and reiki practitioners.

Currently, speech pathologists are regulated in the same way as these professions:

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Source: National Code of Conduct for Health Care Workers FAQs, 2015

(You can read more about how speech pathologists and other allied health professionals are regulated in Australia here.)

(b) Australian speech pathologists are effectively self-regulated

Fortunately – unlike some of the other health professions listed above – speech pathologists who are Speech Pathology Australia members are subject to a contractually binding Code of Ethics and Code of Ethics – Advertising Rules. These documents, in some ways, mitigate the regulatory gap between speech pathologists and the registered health professions and help the profession to maintain good standards of practice analogous to registered practitioners.

(c) Some State Governments regulate speech pathologists and other unregistered health professionals

For example, in New South Wales, Queensland, South Australia and Victoria, we are subject to legally binding Codes of Conduct.

The Queensland and Victorian Codes are based on a National Code of Conduct for Health Care Workers (National Code) approved by the COAG Health Council in April 2015, which in turn was based on the NSW Code of Conduct, which has been around for years.

Why do we need Codes of Conduct?

Commenting on the initial report recommending a National Code, its authors said:

“The report found that the vast majority of unregistered health practitioners practise in a safe, competent and ethical manner. There are, however, a small proportion of unregistered health practitioners who present a serious risk to the public because they are incompetent, or impaired due to physical or mental dysfunction or drug or alcohol addiction, or they engage in exploitative, predatory and illegal conduct such that, if they were a registered health practitioner, would result in cancellation of their registration and removal of their right to practise.”

(Source: Final Report: A National Code of Conduct for Health Care Workers, 2015, page 14.)

In others words, the main purpose of the Code is to protect consumers from serious risks.

2. So what are the rules about reporting other health providers to complaint authorities (and where can I find them)?

(a) New South Wales

Clause 7(4) of the Code of Conduct for Unregistered Health Practitioners provides as follows:

“A health practitioner [including a speech pathologist] who has serious concerns about the treatment provided to any of his or her clients by another health practitioner must refer the matter to the Health Care Complaints Commission.”

(b) Queensland

Clause 4 of the National Code of Conduct for Health Care Workers (Queensland) provides as follows:

“4. Health care workers to report concerns about the conduct of other health care workers.

A health care worker who, in the course of providing treatment or care, forms the reasonable belief that another health care worker has placed or is placing clients at serious risk of harm must refer the matter to the Health Ombudsman.”

(c) South Australia

Clause 6(4) of the Code of Conduct for Unregistered Health Practitioners (South Australia) provides as follows:

“Health practitioners who have serious concerns about the treatment provided to a client by another health practitioner must refer the matter to the Health and Community Services Complaints Commissioner.”

(d) Victoria

Clause 4 of the Code of Conduct for General Health Services (Victoria) provides as follows:

“4. General health service providers to report concerns about the conduct of other health service providers.

A general health service provider who, in the course of providing treatment or care, forms the reasonable belief that another health service provider has placed or is placing clients at serious risk of harm must refer the matter to the [Health Complaints] Commissioner.”

We expect other States to implement similar rules in the near future based on the National Code.

(e) What do these mandatory reporting obligations mean?

In its Final Report of April 2015 on the National Code, the Victorian Health Department, on behalf of the Australian Health Ministers Advisory Council, made the following comment:

“Commentary:

The purpose of this clause is to impose a mandatory obligation on all Code-regulated health care workers to report to the responsible health complaints entity when they become aware that another health care worker is placing clients at serious risk of harm in the health care context. This clause expands upon subclause (4) of Clause 7 of the NSW Code (subclause 6(4) of the South Australian Code), ‘Appropriate conduct in relation to treatment advice’.

Concerns have been raised about whether this clause may generate complaints that are motivated less by the desire to protect the public and more by personal interest (for example, by competing business interests). However, all health complaints entities have powers to dismiss complaints that are frivolous or lacking in substance.”

(Source: Final Report: A National Code of Conduct for Health Care Workers, 2015, page 37.)

3. What should you do if you are concerned about another health care professional’s treatment of a client?

Remember that the Codes (which have been described as a form of “negative licensing”) are designed primarily to protect consumers from unregistered health professionals who expose their clients to serious risks of harm. Arguably, the mandatory reporting requirements should be read in this context.

In Queensland and Victoria (but not in and South Australia or New South Wales), the Codes use the term “in the course of providing treatment or care”. This means that the mandatory reporting obligation only apply to health care practitioners (including speech pathologists) who become aware of another health practitioner’s professional misconduct in the course of their work. They don’t apply if you become aware of professional misconduct in a social setting or through a personal relationship, for example. (This reflects a similar scope of mandatory reporting obligations on registered health practitioners under the National Law.)

Finally, this article has only considered the legal obligation to make a report to a health complaints authority. You may have ethical obligations to consider, too.

Bottom line

If you become aware of client who is receiving potentially harmful treatment from another health professional, and are unsure about whether you have an obligation to report it to a complaints authority, we recommend strongly that you first contact Speech Pathology Australia’s Ethics team to discuss your concerns and, if necessary, seek legal advice as to whether you have a legal obligation to report it.

Principal source: COAG Health Council National Code of Conduct for Health Care Workers documents.

Related articles:

• Building an SLP Private Practice Compliance System
• Allied health regulation in Australia: 101

Important disclaimer: The information in this article is for general information purposes only and is not legal advice. It is current on the date of publication. It cannot be relied on by any person for any purpose. If this article raises any issues for your practice, you should seek independent legal advice based on the facts and circumstances of your situation. The application of laws and statutes may vary depending on the circumstances. We do not assume any liability for any damage that may be caused to anyone as a result of any act or omission on the basis of the information contained in this article.

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