David Kinnane

Speech pathologists: 5 best practice ways to improve your advice to clients

16 July 2016 By David Kinnane Leave a Comment

In one capacity or another, I’ve been a professional advisor for almost 20 years. Although advice-giving is a core part of what speech pathologists do, few of us are trained formally in how to do it well.

Bad professional advice can lead clients to make flawed decisions. It can also strain relationships and tarnish your reputation.

It’s sometimes assumed that advice-giving skills emerge organically, with experience and through a painful process of trial and error. But giving good advice is a skill. And, as with most skills, you can get better at it with the right knowledge, systems and practice.

So where should we look for the right knowledge?

Recently, Harvard Business School Professors David Garvin and Joshua Margolis reviewed the research about advice-giving in business and developed a framework of best practices. Applying their guidelines to speech pathology practice, here are 5 evidence-based ways to improve the quality of your professional advice:

1. Before you start, check you’re the right person for the job

Ask yourself: do you have the time, expertise and experience to help? Are there alternative and/or additional sources of guidance to advise the client comprehensively given his/her needs? Do you have a conflict? Would a second (or third) opinion help the client make a decision?

2. Develop a shared understanding with your client

(a) Set the scene: allow clients enough time to explain their challenges, ensure privacy and choose a place free from distractions like buzzing phones or the next appointment.

(b) Listen actively and without prejudice – resist the urge to jump in with your preliminary view.

(d) Agree on the scope of advice sought. Is it:

(i) one-off advice for a single decision (e.g. “Do I have a clinical issue?”, “Should I be treated now, or later?”);

(ii) counselling on how to approach a complex situation (e.g. “How do I prioritise my child’s many communications needs?“);

(iii) coaching to enhance skills (e.g. identity mapping to generate and pursue meaningful, client-centred goals); or

(iv) mentoring to provide guidance to aid long-term success (e.g. acting as a sounding board for an adult who stutters or an accent modification client facing specific challenges at work, e.g. with an important presentation).

Don’t overstep boundaries or give unsolicited advice – especially advice that is outside your scope of practice.

3. Craft alternatives

Make it clear to the client that you are an adviser – not the decision-maker. If possible, help the client generate several, evidence-based, viable choices. Spell out the rationale, principles, assumptions and evidence behind each of the options and your advice. Be prepared to challenge assumptions if the facts or situation changes (or if the client changes his or her mind).

4. Help the client make the decision

Ensure all options are evaluated, including the risks and benefits of no treatment. Communicate clearly and in Plain English. Make sure the client understands your advice. Don’t jump straight to a conclusion, e.g. that a child is a “speech” or “language” kid or assume that your client will choose the treatment you consider to be the most logical or evidence-based. Pause frequently for client/family reactions. Make sure the client knows you are available for further clarification and elaboration if and when needed (i.e. that they don’t need to make a decision on the spot, and can think about other options, risks and benefits and come back with questions or concerns).

5. Help put your client’s decision into action

Reaffirm and support the client in making an informed decision, even if the decision is ultimately not your preferred first choice. Document it. Again, convey your availability for additional guidance and support to help the client to pursue his/her goals, including during treatment.

Bottom line

Speech pathologists advise clients in several ways, from face-to-face and tele-health consultations, assessment reports, management plans, home programs, email and SMS responses to queries, therapy and training activities, outcome measurement, discharge recommendations and referrals to other health professionals. Giving professional advice competently requires us to look at our competence and impartiality, the scope of advice sought and our role in giving it, the technical content of our advice, and the process through which we evaluate different options and give our advice. Skilled advising requires creativity and collaboration with clients. We need to understand clients’ problems fully to generate evidence-based, client-centred solutions over the whole term of the professional relationship. Garvin and Margolis’ framework for advising is a useful tool to do this methodically.

Principal reference: Garvin, D.A., & Margolis, J.D. (2015). The Art of Giving and Receiving Advice, Harvard Business Review, January-February, 61.

Image: https://tinyurl.com/jjd4e2c

Speechies in Business

Speechies in Business is owned and operated by David Kinnane, a Certified Practising Speech Pathologist, lawyer, writer and speaker in private practice in Sydney, Australia. You can read more about David’s professional background, qualifications and experience here.David also co-owns and co-manages Banter Speech & Language, an independent private speech pathology clinic, and Bodkin Wood Legal & Advisory, a law firm specialising in allied health issues.

Performance Appraisals for Speech Pathologists

30 June 2016 By David Kinnane Leave a Comment

With the end of the financial year upon us, many of us are in the process of conducting performance appraisals for our employed speech pathologists. Unfortunately, many of us are hampered by the lack of a speech pathologist-specific template that is adaptable for all levels of experience – from new grads to senior clinicians – and management styles.

By popular demand and on the request of our fellow speechies, we’re created an up-to-date template designed specifically for speech pathologists in private practice who want to appraise their staff collaboratively. Main features of our performance appraisal template:

consistent with the Fair Work Australia requirements;
aligned with our current range, areas and scope of practice as defined in the Competency-Based Occupational Standards for Speech Pathologists in Australia;
employees fill out first, so you can prepare for the appraisal meeting properly;
designed to generate SMART reflections and performance goals for each employee for the next 12 months, including your expected and measurable increases in their core activities (e.g. assessment, reporting and treatment), additional activities (e.g. advocacy, education, clinical research and quality improvement projects), professional development and competency, generally;
fully editable Word document: add whatever you want, subtract what you don’t need!
easily integrated with SPA’s Professional Self-Regulation (PSR) requirements. File with proof of SPA membership and PSR compliance statement.

Click here for our Speech Pathologist Performance Appraisal Agreement template.

Looked around but can’t find what you’re after? Drop us an email requesting a template, policy or procedure, and – as with this one – we’ll hop right onto it!

Australian Speech Pathologists: consent to treatment for children aged 0-13 years with separated or divorced parents

21 June 2016 By David Kinnane Leave a Comment

If you work with kids and provide quality, client-centred care, you really work with families. Sometimes, you’re working with Mum and Dad and the kids together. Other times, you might be working with a single parent, alternating parents, a relative (e.g. a grandparent), a guardian or another carer.

One question that crops up a lot in speech pathology forums is about what to do if you are working with a child whose parents are separated, going through divorce proceedings or divorced. This is a complex area of law and practice (particularly for children who are 14 years old or older – a topic for another day).

For children aged 0-13 years, here are some principles I use to manage the risks:

In most cases, the consent of either parent to provide speech pathology services to their child is sufficient. The Family Law Act 1975 (Cth) makes it clear that:
- both parents are responsible for the welfare of their children (including healthcare) until their children turn 18;
- there is a presumption that arrangements which involve shared responsibilities and cooperation between parents are in the best interests of children (section 61DA);
- each parent of a child has responsibility for the child unless:
  - the court makes a parenting order to the contrary; or
  - the parents make a parenting plan that allocates parenting responsibility differently; and
- a change in the relationship of the parents – e.g. separation, divorce, marrying or remarrying – does not affect the basic rule that each parent has responsibility for the child (section 61C).

If a non-parent relative attends with a child, I usually ask to see written confirmation from a parent authorising the relative to consent to assessment and treatment for the child.

If a guardian attends with a child, I usually ask to see evidence of the guardianship.

If a delegate of the guardian attends with a child, I usually ask to see evidence of the guardianship and a written delegation of the authority to consent from the guardian to the delegate.

In cases where I know that the parents have separated, are divorcing or are divorced, and in particular, where it is clear Court proceedings are underway, I ask the attending parent to confirm if any parenting orders have been made or are pending, or if any parenting plans have been agreed that affect the rights of the parents to make healthcare decisions for his or her child and document the response (e.g. in progress notes). Documenting the attending parent’s response to this question can be important, e.g. if you are later subpoenaed by the other parent to provide documents or to appear in Court to provide evidence.

If parenting orders have been made by a Court that appear to give one parent the sole right to make decisions for the child’s ‘day-to-day welfare and development’ or, more specifically, to make healthcare decisions for the child, consent from that parent must be obtained in accordance with the order. Without such consent, I will not assess or treat the child.

If there are no Court orders in place, and one parent consents to you treating a child and the other parent contacts you to refuse consent, I try to get the parents to talk to each other to make a decision about what they think is in the best interests of the child. I also try to inform each parent objectively about the risks and benefits of different assessment and/or treatment options (including no treatment). This usually works.

If the parents can’t reach an agreement on whether the child should be treated, I’m reluctant to assess or treat the child. If Court proceedings are threatened or in progress, I might hold off assessment or treatment and suggest that the parents seek legal advice on the matter in the context of their wider Court proceedings.

At each stage, I document all communications, keep my input factual and evidence-based, and take great care not to do or say anything to any person that could make it appear that I am “taking sides”.

Consistent with principles of Australian family law, my paramount concern is the welfare of the child and my key professional obligations are to the child. For example, I remain aware of my obligations as a mandatory reporter under child protection legislation in my State.

Further reading:

Disclaimer: This article does not constitute any kind of legal advice, opinion or recommendation about rights, obligations, remedies, defences, options, or strategies. You should obtain legal advice specific to your circumstances.

Image: https://tinyurl.com/z7gsoy5

Australian Speech Pathologists: Ethical Employment Practices 101

14 June 2016 By David Kinnane Leave a Comment

I’m an optimist when it comes to the future of the speech pathology profession. But I’m also a realist.

A. Supply > demand = exploitation?

Although I remain bullish about the long-term prospects of the profession, I agree with many colleagues who think that the current supply of speech pathologists is out of whack with demand in Australia in some areas of practice. For speech pathologists seeking a job in a capital city, the risk of exploitation is real – particularly for new graduates in private practice. As a lawyer, I’ve seen it in some of the cases that come across my desk.

Speech pathology employers face a slew of legal risks in this market, too, particularly when dealing with some of the less clear-cut legal issues. Risks range from civil employee claims to criminal prosecutions, from financial strain to bankruptcy and loss of practising rights.

Some legal risks are unavoidable in business. Others are caused by a lack of knowledge about legal responsibilities or compliance systems to manage them. As with every profession, there are probably also some hirers out there engaged in what I would politely call “questionable practices”. (More on that later.)

B. Duty to be informed

In the current job market, knowing your legal rights as an employee is essential. On the employer side, you need to know this stuff if you want to protect your reputation and stay in business: ignorance of the law is no defence if a regulator comes knocking or you get sued.

So here are some employment law basics that everyone in private practice in Australia should know about. None of what follows is intended to be legal advice. But it is intended to alert you to some of the main issues you need to think about when hiring, or being hired as, an employed speech pathologist in private practice in Australia.

C. Key things you should know

1. Legislation

Australian employment arrangements are subject to the Fair Work Act 2009 (Cth).

2. Award

The modern national award for speech pathology employees in private practice is the Health Professionals and Support Services Award 2020 (MA000027). Read it. It takes 20 minutes. If you are a graduate:

you are a “Health Professional employee – level 1″ for the purposes of the Award;
if you have a Masters degree, you should be paid at least at pay point 4 (currently $1032.90 per week full-time); and
if you have a 4-year Bachelors degree, you should be paid at least at pay point 3 (currently $998.40 per week full-time).

These are the rates current as at 1 July 2020.

In addition to minimum wages, the Award covers types of employment (full time, part time, casual), ordinary hours, leave, allowances (such as travel allowance, currently $0.80 a kilometre), termination of employment, redundancy and dispute resolution.

3. Minimum employment standards

Speech pathology employment arrangements are subject to the 10 minimum National Employment Standards covering things like annual leave, long service leave and redundancy pay. Read more about these important topics via the Fair Work Ombudsman:

4. Income tax and PAYG

Employed speech pathologists earn salary and wages that are subject to income tax under the Income Tax Assessment Act of 1997 (Cth) and the Income Tax Assessment Act of 1936 (Cth). This tax is withheld from employees and “paid as you go” (PAYG) by employers on their behalf. You can read more about PAYG here.

5. Superannuation contributions

In addition to employee salaries, employers must make superannuation payments for employees under the Superannuation Guarantee (Administration) Act 1992 (Cth). Currently, these superannuation contributions are equal to 9.50% of an employee’s salary and wages. You can calculate superannuation contributions here.

6. Employment Contracts – key things to look out for and to seek advice on

Before signing up, read your draft employment contract carefully. Unfortunately, as we’ve lamented elsewhere, many of the precedent speech pathology contracts floating around are littered with serious errors. Some contain very outdated references. Some contain straight-out illegal terms.

At a minimum, make sure your contract refers to the correct Award (including pay point), the National Employment Standards and the Fair Work Act 2009 (Cth). Make sure you are being hired as a speech pathologist (seems obvious, but be wary of titles like “consultant” or “advisor”, and especially “assistant” or “support worker”).

Watch out for:

overly long probation periods – probation periods should not be longer than six months – and provisions that seek to claw back expenses or costs if an employee is terminated at or before the end of the probation period;
clauses that seek to restrict what paid work you can do for others while you are employed;
clauses that seek to restrict:
- where you can work; and/or
- what kinds or work you can do,
  if/when you leave (I’ve seen some pretty broad restraint of trade clauses out there in the market);
clauses that purport to restrict your ability to start your own practice if you leave;
minimum numbers of clients you must see every day, especially if the number is disproportionate to your experience levels to do the job ethically; and
clauses that purport to make your pay conditional, e.g. on the employer first getting paid by a client or third party.

Prospective employees should also be aware of their key duties to the employer, e.g. to co-operate, to use care and skill, to act with fidelity and good faith (e.g. not to steal business, make secret profits on the side, seek to entice other staff away, not to disclose confidential information to others, not to assert ownership rights over the employer’s intellectual property). A solid written employment contract will deal with many of these terms, but Courts sometimes imply these terms when the contract is silent (or not written down).

7. Sham contracting arrangements – pretending an employee is an “independent contractor”

This is a big topic and warrants a couple of articles on its own.

In short, hiring independent contractors is a common practice for speech pathologists. It’s usually cheaper for hirers because they don’t have to pay employee entitlements (like leave) or make superannuation contributions or pay PAYG tax instalments. It can also be more flexible for the workers who can work for different hirers and do different kinds of work.

Some of the independent contracting arrangements I see out in the market are, in reality, poorly disguised employment arrangements. It’s a grey area in some cases – the principles are clear, but the application can be tricky. But the legal risks of getting it wrong fall mostly on the hirer/employer. For example:

a disgruntled contractor may sue a business claiming he/she is an employee entitled to annual leave and other employee entitlements;
Fair Work Australia may fine a business for entering into a “sham” arrangement, i.e. alleging the ’employer’ attempted to disguise an employment relationship as an independent contracting arrangement to avoid responsibility for employee entitlements; and/or
the Australian Taxation Office (ATO) may audit and then prosecute the business (and sometimes its owners), e.g. for failing to withhold ’employee’ income and other taxes as required for employees.

If you don’t know much about this important issue, start with these resources:

Fair Work Ombudsman: Contractors and employees – what’s the difference?
Fair Work Ombudsman: Sham Contracting Arrangements
ATO: Employee/Contractor Decision Tool
ATO: Difference between Employees and Contractors
ATO: Employee or contractor – Myths and facts

If you’re still not sure, seek legal advice before signing up.

8. “Volunteers” doing speech pathology work

This another area of controversy – and one where I hold strong views. Here, I’m not talking about students on placements, which are usually classed as “Vocational Placements” for the purposes of the Fair Work Act and are thus legal.

I’m talking about speech pathology graduates and other speech pathologists being given the “opportunity” to do volunteer work for other speech pathologists, e.g. to overcome a “lack of experience” hurdle. These are sometimes very informal arrangements, with nothing in writing. Other times, they are structured as an “unpaid trial” or “unpaid internships” offering alleged perks like free training, networking opportunities and training.

Spoiler alert: I think many “volunteer arrangements” are legally questionable and should be stamped out.

The Fair Work Ombudsman makes it clear that true volunteers:

must not do “productive work” – this would, in my view, clearly capture providing speech pathology services for money and would probably apply to doing free screeners too if they are part of an initiative to generate business for a private practice hirer (which they almost always are);
should be the main beneficiaries of the arrangement; and
must receive a meaningful learning experience, training or skills development from the position.

Otherwise, there’s a good risk that the “volunteer” is, in reality, an employee and entitled to be paid accordingly. Again, the main legal/economic risks of getting this wrong is on the hirer, although the short-term damage of engaging in dodgy volunteer “hiring” of course hits the volunteers too, with collateral damage to the profession’s reputation.

In my view, short-term, purely observation/shadowing arrangements might be okay, provided the volunteer learns a lot and isn’t expected to do anything productive. But, if the “volunteer” is expected to engage in speech pathology-related professional work to benefit the hirer, the volunteer might have good grounds down the track to make a claim against the hirer for unpaid wages and entitlements (and interest) as an employee – especially if the volunteer comes away from the “opportunity” less than impressed or feeling exploited.

You can read more about unpaid work arrangements here. For members of Speech Pathology Australia, there is a Position Statement on Volunteering in Speech Pathology (behind the members’ wall), which binds members. But the Position Statement is arguably more permissive than employment laws, and remember that your legal obligations come first.

Bottom line

There’s lots of speech pathologists around, especially in big cities, and more competition between private practices than ever before. This makes it hard to land a job; and puts business pressure on private practices to hire efficiently. If we want to avoid a race to the bottom, we must uphold good hiring practices; and, to do that, we need to know our basic employment rights and responsibilities. I hope that this overview was a useful start for some of you pursuing this goal, though you should seek legal advice particular to your own situation before doing (or not doing) something related to any of the topics touched on above.

Just as a nation’s greatness is measured by how it treats its weakest members*, a profession’s greatness is measured by how it treats its new graduates and other vulnerable members. As a profession, we’re good at helping our clients. But we need to help each other, too. A good start is to ensure we meet – and preferably exceed – our employment law responsibilities.

*Quotation: Mahatma Gandhi.

Image: https://tinyurl.com/hfafrtz

Received a subpoena? 12 tips for speech pathologists

26 April 2016 By David Kinnane Leave a Comment

When working with kids, most of us try to provide family-centred healthcare. The upsides include better therapy and real world outcomes. But the downsides can include getting embroiled in family and other disputes, including Family Court and other litigation.

If you’re in private practice and work with kids, you should expect to receive the odd subpoena. For example, in the last 12 months, I’ve received two.

A subpoena is a writ (a court-issued command). There are two main kinds, both with fancy Latin names:

Subpoena ad testificandum: these require you to attend court and give evidence as a witness in person.
Subpoena duces tecum (also known as a “subpoena for the production of evidence”): these require you to attend and deliver certain documents in your possession to court.

“Sub poena” means “under penalty”, which is what happens if you fail to do what the subpoena says. In our experience, speech pathologists tend to receive subpoenas for the production of evidence more often than subpoenas to be witnesses.

So how should you handle subpoenas to produce documents?

Here are 12 tips when receiving subpoenas issued by Australian courts:

1. Don’t panic.

It’s never a good feeling to receive a subpoena. But in most cases – particularly Family Court cases – the court dispute is not about you or your service, it’s about the welfare of a client. In most cases, all you will be asked to do is to provide documents in your possession or control that relate to a client.

2. Valid subpoenas override client confidentiality.

Speech pathologists are hard-wired to protect client confidentiality – especially on sensitive matters relating to a client’s healthcare. But, as with mandatory reporting requirements, a valid subpoena overrides our ethical obligations to protect a client’s confidential information. If the subpoena appears to have been issued by a court, you should assume it’s valid and do what it says, unless you actually know it’s fake and have received independent legal advice from your lawyer that you do not need to comply. In practice, we assume all subpoenas we receive are real and valid.

3. Date stamp, read, diarise.

Record the date on which you actually received the subpoena. Read the subpoena carefully. Consider what you are required to provide and by when and, if necessary, recall files from storage. Diarise the last date on which you can submit the documents with a reminder three days before the deadline. If you don’t understand what you need to submit or think there has been a mistake (e.g. wrong date, you have no record relating to the person’s name), ring the relevant Court Registry and make enquiries (note the case number before contacting the Court Registry as you will be asked for it).

4. Keep the envelope.

Retain the subpoena and the envelope it came in. Do not throw the envelope away. Keep it with the subpoena (we always staple it to the subpoena). In the event there is disagreement about what you received, you want to be able to show everything that has been sent to you including the envelope.

5. Collate, check and copy documents.

Leave enough time to comply with the subpoena. It always takes much longer than expected to find, collate and copy all the relevant documents. If you are in any doubt about whether particular documents fit within the scope of the subpoena, discuss with a lawyer. In our experience, subpoenas are usually very widely drafted to capture all documents relating directly or indirectly to the client in your possession or control. All documents means all documents – don’t leave documents out, even if they contain errors, are drafts or are embarrassing to you or other people. It’s not up to you to decide whether including a document is in the best interests of your client. All means all.

6. Keep a record of documents submitted.

If permitted by the subpoena, we submit copies and keep the originals on file. Generally, the subpoenaed documents will not be returned to you. If you need the documents to be returned, check with the relevant Court Registry as to how you can have them returned.

7. Submit.

If you can, personally submit the documents to the Court/Court Registry. If you can’t submit the documents personally, then leave plenty of time for the documents to be delivered prior to the deadline date and make sure the subpoena allows documents to be delivered other than by personal attendance. If you are permitted to mail the documents, send the documents by registered post or courier (unless the subpoena tells you to do it a different way). Keep a copy of the tracking number/code of the parcel and track the delivery of the parcel.

8. Where should you go?

When delivering documents to a Court/Court Registry, make sure you are in the right place. Sometimes a Court House can be in a different location from a Court Registry, e.g. the District Court Sydney at Downing Centre versus the District Court Sydney Registry at John Maddison Tower. Sometimes, the filing of general documents is handled in a different room/on a different floor from the filing of subpoenaed documents, e.g. Family Court of Australia, Parramatta Registry. If in doubt, ask the Court Security Guard or other staff.

9. Dated court receipt.

Ask for confirmation of receipt from the Court. This can take the form of an acknowledgment letter or photocopy of the front page of the subpoena with the Court’s date stamp affixed. Make sure the receipt has been dated. The last time we submitted documents to the Family Court, the Registry Clerk did not date the acknowledgment letter. Luckily we noticed before we left the Registry. This is particularly important as you may need to show that you submitted the subpoenaed documents within time.

10. File note it.

Make a file note about what you submitted, who you submitted it to, when you submitted the subpoenaed documents and how. This is useful in case the documents later go missing in the system.

11. Bank the cheque.

When you receive a subpoena, it usually comes with a small cheque to cover expenses. It’s usually not much, e.g. $25. Bank it as soon as you can. There are law firms that have a practice of cancelling subpoena cheques as soon as they receive documents, so don’t be caught out. Make sure you get compensated (in part, at least) for your photocopying costs!

12. Respond promptly to any suggestion you haven’t complied.

If you receive correspondence from the lawyers who subpoenaed documents claiming that you have not submitted the documents (and this is not uncommon given the volume of documents that a Court or Registry receives), promptly write to the firm providing a copy of the Court/Registry acknowledgment. Send the correspondence by fax, with the original correspondence following by mail or courier. Do not do it by email.

Disclaimer: This article provides some general tips associated with speech pathologists receiving subpoenas in Australia. This article is current as at the date of its publication. This article does not constitute any kind of legal advice, opinion or recommendation about rights, obligations, remedies, defences, options, or strategies. You should obtain legal advice specific to your circumstances.

Image: https://tinyurl.com/j4qb6gb