Speechies in Business

Helping Speech Pathologists in private practice focus on what matters most: their clients

David Kinnane

Australian speech pathologists: your client is receiving an unsafe treatment from an unregistered health practitioner. What should you do?

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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:

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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Building an SLP private practice compliance system

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Important disclaimer: The information in this article is for general information purposes only and is not legal advice. 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.

Working Draft

This week, we’ve been developing a compliance system for speech pathologists at @WeSpeechies on Twitter. Here’s a quick update of where we are at:

First, what is a compliance system?

Next, let’s look at what’s been developed at an international level. Here’s a summary of International Standard ISO19600 Compliance Management Systems (Ernst & Young):

From ISO 19600, I’ve derived an 11-step process for building a compliance system:

So let’s get to it!

Step 1: Choose a Compliance Officer.

If no-one is responsible for developing the system, it will never get off the ground. For single clinician practices, the choice is easy. It’s you!

Step 2: Build strong foundations: good governance and health ethics principles.

Here are some basic business management governance principles that work for small and big private practices:

Steps 3 and 5: Identify general legal and compliance issues for your practice, and scope of system.

Compliance is not just a list of issues!

Here’s my working list of issues speech pathologists need to think about in private practice, sorted by focus:

Step 4: Identify our key stakeholders.

Here’s my working list:

Step 6: Establish a simple compliance policy.

Here’s a resource generated from our work to date:

Step 7: Identify compliance obligations and risks

7(a): What are the issues that keep you up at night?

7(b): For Australian Speech Pathologists, here’s our overview of how we are regulated.

7(c): Next, find and read the main rules that regulate speech pathologists, highlighting obligations as you go. For example, in NSW, speech pathologists’ main obligations are set out in SPA’s Code of Ethics and the Code of Conduct for Unregistered Health Practitioners.

For Australian speech pathologists in other States, the State Health regulators have agreed in principle to a National Code of Conduct for Unregistered Health Practitioners based on the NSW Code with a few critical changes. See: COAG’s Health Council documents.

So far, a few Australian States have implemented it, including Victoria, Queensland and South Australia.

7(d): Create a compliance table mapping out key compliance obligations, where to find them, and where to find practical guidance on how to meet them. Here’s our working draft, sorted by the issues identified in Step 3: WeSpeechies-Compliance-table-26-May.pdf.

Step 8: Plan how to meet compliance obligations.

8(a): Go through your Compliance Table and identify policies and procedures needed to meet your obligations. Here’s ours: WeSpeechies-Compliance-table-with-policies-and-procedures.pdf.

Here’s a list of the key policies & procedures we need to meet our compliance obligations:

Step 9: Implement policies and procedures (including training about reporting).

This is all about finalising the policies and procedures, publishing them somewhere accessible, e.g. on the practice management system, and then training staff in how to follow them and to report breaches.

A Compliance Procedure Manual is a total waste of time if people aren’t trained in what to do, especially what to do if there’s a breach. The Practice Owner/Senior Management must support staff who report breaches & near misses. Management must publish and endorse a very clear incident and escalation policy. Here’s a simple example:

To draft your policies and procedures, you can do it yourself, or look to associations or third party publishers for templates. Here’s some of our policy templates.

The key point is that policies & procedures should be drafted by someone who understands your legal & compliance obligations in your jurisdiction and must be reviewed critically by the Compliance Officer to ensure they are adequate to meet your practice’s needs/obligations.

Step 10: Test and review compliance system and breaches.

Testing includes reviewing:

  1. Complaints Register;
  2. Escalations and Incidents Reports;
  3. random client & staff files for compliance; and
  4. physical equipment.

Updates include:

  1. professional association news;
  2. regulator, government and university alerts;
  3. advice from professional advisors; and
  4. input from mentors and networks.

Step 11: Update your system.

For big, urgent or regulatory changes, you’ll need to take action immediately. The Compliance Officer should also undertake regular e.g. quarterly reviews of obligations, and policies & procedures. Again, associations can help you with this with their regular news updates.

Attention: overworked and time-poor speech pathologists in private practice!

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Do legal and compliance issues stress you out? Do you struggle to understand all your legal, compliance and ethical obligations, and to keep on top of changes?

Join us on Twitter all this week as David Kinnane curates a #WeSpeechies discussion about legal and compliance issues for speech pathologists in private practice:

Legal and compliance challenges for SLPs/SLTs in private/independent practice (and how to manage them!)

Follow @WeSpeechies on Twitter this week for a step-by-step guide to build a legal and compliance system from scratch for your private practice. Participate (or lurk!) during the @WeSpeechies chat at 8.00pm, AEST, Tuesday 23 May.

What we’ll discuss

SLPs/SLTs in private/independent practice are exposed to, and challenged by, a host of legal and compliance risks. These challenges are increasing with changing demographics, new models of service delivery, an increased emphasis on evidence-based practice, and advances in technology.

In some places, a shift to market systems, private delivery of services, and an increasing reliance on casual employment and contracting arrangements also increase risks to private SLPs/SLTs.

So, how do we make sense of it all?

Different countries regulate SLP/SLT services differently, but the elements of a good compliance system are universal. This week we will explore some ideas to build and implement quality compliance programs in private SLP/SLT services.

What we’ll build together

We want our discussion to be as practical as possible and welcome your questions and input. As our discussion proceeds, we’ll build a compliance system for speech pathologists in private practice. Right from scratch, right here!

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Australian speech pathologists and new graduates: ethical alternatives to dodgy independent contracting arrangements

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For private speech pathologists hiring new graduates, independent contracting arrangements are arguably unethical and undeniably risky. But, sometimes, hiring new graduates as full-time employees isn’t feasible. Maybe workflows are too uneven or insufficient to warrant a full-time hire. And, often, new graduates want flexible arrangements, e.g. to work for a couple of different speech pathologists to get experience in different areas and/or for family reasons.

So what’s the alternative to putting new graduates on dodgy independent contracting arrangements? We count two:

1. If hours of work are reasonably predictable, hire new graduates as permanent part-time employees

Part-time employment is defined in clause 10.1 of the Health Professionals and Support Services Award 2020 (Award). Part-time employees are employees who:

  • work less than 38 hours per week on average; and
  • have reasonably predictable hours of work.

Before a new part-time employee starts work, the employer and employee need to agree in writing on a regular pattern of work, including:

  • the number of hours to be worked each week; and
  • the days of the week the employee will work; and
  • the starting and finishing times each day.

Employees and employers can be flexible when agreeing these arrangements. For example, it’s possible for the employee and employee to agree:

  • different working days and different start and finishing times on alternate weeks, e.g. working Monday and Thursday every first week for the whole day each day, and Tuesday, Wednesday, Thursday for half days every second week; and
  • to change the details as time passes and circumstances change. Again, any agreement to change the hours, days and/or starting/finishing times must be in writing signed by both parties.

Wages cannot be less than the Award rates on a pro-rata basis. So, for example, if a part-time employee works 19 hours a week, they must be paid at least half the amount of a full-time employee at Award rates (ordinary hours for full-time employees are 38 hours).

2. If hours of work are not predictable, hire new graduates as casual employees

Clause 11 of the Award deals with casual employment. Casual employees are engaged on an hourly basis, and can work up to and including 38 hours per week. Hourly wages are calculated as at least:

  • the minimum hourly rate applicable to the employee’s classification and pay point in which they are employed; plus
  • “loading” to compensate for the fact that casual employees are not entitled to many of the paid leave entitlements of full-time employees, calculated as:
    • (Monday to Friday) a loading of 25% of the minimum hourly rate; or
    • (Saturday and Sunday) a loading of 75% of the minimum hourly rate (see clause 25.1(b) of the Award).

For casual speech pathologist employees:

  • each shift (or “engagement”) is treated as a separate contract of employment; and
  • the minimum length of a shift is three hours.

As workflows even out, the relationship develops and/or as the graduate builds a case load, employees and employers may find it mutually beneficial to “upgrade” the employee to permanent part-time (or full-time) employee status.

Note that a casual employee may request that their employment be converted to full-time or part-time employment after 12 months in accordance with clause 11.7 of the Award.

Quality, up-to-date legal documentation is key

To ensure you are engaging in ethical employment practices, it’s important that your employment contracts are up-to-date, reflective of the Award, and tailored for the role of a speech pathologist (e.g. aligned with CBOS and Speech Pathology Australia’s Code of Ethics). As with independent contracting arrangements, we’ve come across a lot of poor employment contracts that do not do this.

If you are looking for a solid, up-to-date employment agreement template, check out our:

templates.

Current as at 27 December 2020.

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Australian speech pathologists: is it ethical to hire juniors as independent contractors?

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For speech pathologists in private practice, hiring independent contractors seems cheaper and more flexible than hiring employees, e.g. if your practice has unpredictable workflows or seasonal “slow” and “busy” periods.

But there are a raft of ethical, client and commercial reasons why it may make more sense to grow your practice with employees. There are also compelling legal reasons not to go down the independent contracting route – at least without first understanding all the risks.

A. Not a new issue

I’ve addressed independent contracting arrangements in speech pathology private practice before. It’s one of those issues I come across regularly – especially with new graduates calling me for guidance about their “first job” contracting arrangements (often after signing on the dotted line).

As a profession, I think independent contracting and ethical employment practices are important topics to address openly.

B. Update

Recently, we enjoyed an excellent talk by lawyer Anna Elliott about the differences between contractors and employees*. Interestingly, the talk focused on the downsides of getting the employee-independent contractor decision wrong.

Here are some of our key takeaways from Anna’s talk, which we consider highly relevant to Australian speech pathology private practices:

1. Whatever you call your hire (independent contractor or employee), you can’t guarantee a Court or regulator will agree.

  • Even with good lawyers and great contracts, there is nothing you can do to guarantee your contractor is really (legally) a contractor.
  • The label you use to describe the worker in the contract is relevant, but doesn’t determine the answer on its own.
  • If there is a dispute (e.g. with a worker), a Court will look at all of the facts and circumstances to figure out if someone you are calling an independent contractor is really a contractor or an employee.
  • There’s a long list of factors Courts look at when deciding whether a hire is a contractor or employee (we’ve talked about some of them before). They include whether the hire:
    • has control over her/his work (freedom to decide how, when and where the services are performed);
    • can delegate or subcontract their work to others (i.e. can the hire delegate their work to another person);
    • is free to engage in other business activities and provide other services to others;
    • is really an entrepreneur who owns and operates their own business; and
    • is really working for and representing their business (and not yours).

As speech pathologists, let us pause for a second and think about the realities of some common contracting arrangements in our profession:

I’ve seen some arrangements – e.g. involving the short term hire of senior/experienced speech pathologists in practice for themselves to cover for principals or staff on leave  – where these factors are present.

I’ve seen (many more) arrangements – particularly involving new graduates and junior members of the profession – that do not satisfy any of these factors, exposing the hirer to the real legal risk that the worker is legally an employee (see below).

I’ve also seen several terribly drafted “independent contractor” contracts in the market where employee and independent contracting concepts are hopelessly muddled. Again, the risks of these arrangements lie mostly with the hirer (see below).

  • Different Courts attach different weight to factors/indicators in different cases.
  • Different regulators (e.g. the Australian Taxation Office (ATO)) have their own tests for when they think someone is a contractor.
  • Different laws define contractors and employees differently for different purposes.

Example: hirers are liable to pay superannuation entitlements for employees and for contracts wholly or principally for the labour of an individual (i.e. where more than 1/2 the contract value is for the worker’s labour, whether physical, mental or artistic). This means that, in some cases, you may be liable for a speech pathologist’s superannuation payments, even if the person is an independent contractor.

See, the ATO’s information about contractors and superannuation.

Key and recent employee/contractor cases:

2. In any event, is it ethical or commercially sensible to allow unsupervised junior independent contractors to work with your clients?

One of the (many) factors Courts look at to decide if a person is an employee or contractor is whether a worker is or has been supervised by the hirer. Employees are generally supervised by their employers because employers are usually liable for employees’ work. However, true independent contractors are expected to receive no or little supervision.

Clause 3.3.4 of Speech Pathology Australia’s (SPA) Code of Ethics deals with supervision. Among other things, it says SPA members:

  • provide appropriate supervision;
  • accept responsibility for clinical and support staff, students and volunteers who are assigned to us;
  • take reasonable steps to ensure that those clinical staff and students under our supervision:
    • understand and apply the Ethics Code; and
    • operate within their level of competence; and
  • demonstrate and discuss ethical practice with those we supervise to facilitate their ethical reasoning skills.

Not supervising an inexperienced speech pathologist who is working with your clients is a recipe for disaster. Deciding not to supervise a hire (e.g. to help ensure the hire is seen as an independent contractor) may conflict with:

  • your ethical duties to clients and to SPA;
  • your consumer rights-based duties to clients to ensure you are providing a fit and proper service;
  • your insurance obligations to your professional indemnity insurer; and
  • your commercial objective to protect your reputation and the reputation of your practice.

This is especially the case with junior members of the profession – and, in particular, with new graduate speech pathologists.

3. If you get it wrong, it can be expensive for your practice (and for you personally).

If you think you’ve hired a contractor and, down the track, the worker or a regulator claims the worker is or was really your employee, you may be liable for:

  • unpaid employment entitlements (e.g. annual leave, reasonable notice, and civil penalties for breaches of the National Employment Standards);
  • Pay As You Go (PAYG) tax penalties up to 100% of the tax that should have been withheld;
  • civil penalties for sham contracting arrangements (It’s an offence to represent that an employment contract is an independent contracting arrangement (also known as a contract for services). This is known as “sham contracting”.);
  • damages for breach of contract;
  • unfair dismissal claim (reinstatement or up to 6 months salary); and/or
  • uncapped damages/civil penalties for “adverse action penalties”.

For example, in a 2015 case, the employer company was hit with a penalty of almost $200,000 and the director was fined over $35,000 personally for sham contracting, failure to pay superannuation, holiday, weekend and casual loadings and failure to keep records. (It could have been twice as much if the employer hadn’t admitted contraventions, or if it had involved more than one employee.)

Some of these risks – e.g. sham contracting and unpaid entitlements – remain risks for 6 years from when they first arise. Others may remain for even longer than this.

These risks can also affect your ability to sell your practice, e.g. you might have to give the buyer an indemnity for these risks, and you can’t contract out of statutory obligations.

4. Even “true” independent contractors may be able to claim against you if they think their contract is “harsh or unfair”.

The Independent Contractors Act 2006 (Cth) gives the Federal Court of Australia (on the application of an aggrieved worker) the ability to review contracts that are harsh or unfair, e.g. because:

  • the bargaining power of the hirer was much stronger than the contractor, and the hirer used their better bargaining position to put undue pressure on the contractor; or
  • you are paying the independent contractor less than they would have received as an employee.

This exposes hirers of independent contractors to additional risks, especially if hiring inexperienced new grads with little bargaining power and not paying them enough.

Read the recent cases:

5. Hiring staff through labour hire companies is also risky.

In some industries, hirers have attempted to reduce some of the above legal risks by hiring staff through labour hire companies. These are arrangements where the hirer engages the labour hire company to supply staff.

While these arrangements may reduce some risks (e.g. superannuation liabilities), they don’t eliminate others. For example, in the recent Quest case, the High Court of Australia found that using a labour hire company did not eliminate a hirer’s risk of being found to have engaged in sham contracting arrangements.

Politically, labour hire companies have come under significant parliamentary scrutiny recently, including in Queensland, Victoria and South Australia.

With the ongoing “Uberfication” of service jobs (including speech pathology), we expect that labour hire companies and the businesses that use them will remain under the spotlight for the foreseeable future.

Bottom line

Speech pathologists who hire independent contractors to work with their clients need to know about the risks. Some legal risks can be reduced by using good quality contracts. But the conduct of the parties – the “real world reality” of the situation – must be consistent with the intended/stated relationship. Regulators and Courts look at all the facts and circumstances to assess whether a hire is really a contractor or an employee. Getting it wrong can be very expensive.

Hiring contractors to provide speech pathology services to staff also gives rise to ethical and commercial risks. These include how to delegate to and supervise staff adequately (especially junior staff), how to monitor the quality of your services, and to protect your reputation.

There are no easy answers here; and I’m not suggesting that the use of independent contracting arrangements in our industry should cease. But speech pathologists who want to hire contracting staff to grow their business should first educate themselves on the legal risks (and take legal advice if unsure), think through the ethical issues, and consider the commercial pros and cons (including to team morale and reputation).

What do I do in my practice to manage these risks? At the moment, I hire staff as employees.

Principal source: * Elliott, A. (2016). “Contractor v Employee: Getting the Relationship Right and the Consequences of Getting it Wrong”. College of Law online course, watched on 17 March 2017.

Important disclaimer: The information in this article is for general information purposes only and is not legal advice. It is current as at its date of publication. It cannot be relied on by any person for any purpose. If this issue 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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