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8 mental models speech pathologists in private practice can use to make better business decisions

17 February 2019 By David Kinnane Leave a Comment

The world is complex. Speech pathologists are busy. Many of us are inundated with information. Most of us are juggling work and family commitments. Quite the recipe for procrastination, getting overwhelmed, and indecision!

Productivity tools and systems help but you need mental models

Trying to remember and prioritise lists of random things – from upcoming sessions, outstanding reports, phone calls to return, articles to read, supplies to order, bills to pay, tax statements to submit – is exhausting and stressful. Productivity tools, such as the Pomodoro technique, can help. So, too, can investing in the right systems, templates and resources. But none of those things help us to make decisions.

In private practice, we all make hundreds of decisions – big and small – every week. One way to clear away clutter, sift information, and to make decisions, is to use mental models: simple representations of reality that enable us to sort the wheat from the chaff.

You are already using mental models for clinical decisions

At University, most of us were trained to use mental models to make clinical decisions. For example, most of use elements of the ICF Framework, the Participation Model, and/or the EB3P model to plan and deliver services. As professionals, we are also required to adopt an ethics framework – whether it be Beauchamp & Childress’ biomedical framework underpinning our Code of Ethics, casuistry, or another framework altogether. In devising therapy goals, most of us use models of typical development, or evidence-based therapies that are themselves built on models of speech and language, e.g. Blanks Levels or Complexity theory.

But what about mental models to help with business decisions?

Here are 8 mental models I use to make business decisions in my practice:

1.Know your Circle of Competence: I spent a lot of my early professional years pretending I knew everything – even to myself. This left me with lots of blind spots that ultimately hampered my professional development. These days, I know what I understand, and am very honest with myself about what I don’t know. When I don’t know something clinically important, I add it to the list of things to investigate. In the context of my private practice, some of the product of this work evolved into the Banter Speech blogs and ebooks. Understanding my circle of competence helps me know when to seek help, and where to spend time and money improving my skills (and the skills of my team).

2. SCAMPER your services: As speech pathology services globalise and become more innovative, we need to think about how to deliver new services, and to deliver existing services differently. One way to think creatively about service design and delivery is to use the SCAMPER model, developed by Bob Eberle. It helps people to improve their products and services by asking the following seven key questions (originally developed by Alex Osborn):

Substitute: can you substitute people, components, or materials?
Combine: Can you combine with other functions or things?
Adapt: Can you adapt functions or visual appearance?
Modify: Can you modify the size, shape, texture, or acoustics?
Put to other use: Can you find other, new, combined uses?
Eliminate: Can you reduce, simplify, or eliminate anything you don’t need?
Reverse: Can you use it for the opposite effect, or invert or reverse it?

3. Apply Hanlon’s Razor to keep perspective: Private practice can be a hot bed of paranoia and second-guessing, especially when it comes to things like negative online feedback and staffing issues. Hanlon’s Razor tells us we should not assume that people are acting with malice when we have a misunderstanding, disagreement, or receive negative feedback. If we assume that all criticism is from someone “out to get us” or someone “trying it on”, we miss opportunities to consider simple solutions, such as apologies, better systems, or more education, that makes what we do better for everyone involved. People have bad days. People make mistakes. People do things without thinking them through, especially on the Internet. If we give our staff and clients the benefit of the doubt by not projecting ill-intent onto their acts, and respond constructively, we tend to feel better about our practices and ourselves (and so do our staff and clients).

4. Exploit the magic of compounding: The process of adding interest to a fixed sum, which then earns interest on the principal and the interest added, then repeats forever, can reap enormous business rewards over time. Borrowed from the world of maths and underpinning the time value of money, compounding refers to the exponential effect that small, regular efforts can have on real world outcomes over time. In our practice, we find that working even a little bit on projects every day almost always results in better outcomes than trying to find (often non-existent) blocks of time to dedicate to projects. Breaking projects into small chunks also makes them less daunting, lowering resistance to sitting down and getting the work done.

5. Deal with the harsh realities of the Red Queen Effect: As the Red Queen says to Alice in C.S. Lewis’ Through the Looking Glass: “Now, here, you see, it takes all the running you can do, to keep in the same place”. In a competitive market for services, standing still means going backwards. Every year, we discharge clients and must attract new ones; and we may lose staff and have to replace them. To thrive, we have to first deal with the “churn” of clients and staff, before considering growth plans. If we fail to account for churn, we’ll find ourselves over-stretched and behind competitors who manage their own churn more efficiently.

6. Understand Dunbar’s Number: This is the number of individuals a primate can get to know and trust deeply, and is related to the size of the primate’s neocortex. For humans, the number is around 150 individuals (with a range of ~100-250). Dunbar himself expressed the rule informally as “the number of people you would not feel embarrassed about joining uninvited for a drink if you happened to bump into them in a bar”. Although the network effect tells us that organisations like Facebook, LinkedIn and Twitter become more valuable as more people join them, the Dunbar effect reminds us that there is a limit to the number of people with whom we can maintain stable, inter-personal relationships. It also explains why larger communities (including communities of speech pathologists) need laws, regulations, and rules of conduct to function effectively.

7. Improve team performance with the Drexler/Sibbet Team Performance Model: This is a simple model for building a team to carry out projects. If you treat your practice as an ongoing project, Drexler/Sibbet’s model can help you think about how your team members are interacting and how the team is performing.

Source/Credit: https://davidsibbet.com/process-models/

8. Use your stakeholders’ “Narrative Instincts”: We are wired to tell stories. We are also wired to listen to them. If you want to help educate or persuade people to your cause, frame your facts within stories. You may have noticed me not so subtly using the tactic in this very blog!

Can employers access employees’ personal phones?

13 January 2019 By David Kinnane Leave a Comment

Like too many employment law issues in Australia, the answer is that: “it depends”.

The rise of the personal smart phone

When I was a young man, it was common for employers to issue employees with IT-approved “work” phones. Many of us had two phones: one for business, and another for personal calls.
These days, it seems like many (if not most) private practices no longer provide staff with phones. Instead, employees access their employers’ email and other systems through their own, personal smart phones.
Like most speech pathologists, on my phone, I have a mixture of business and personal information contained in emails and through various client and IT management systems accessible through apps. My employees are in the same boat.

Work information belongs to employers

Information employers provide to staff during the course of their employment belongs to employers.
Client information is, of course, confidential. Express and implied terms of employment protect employers’ ownership of that information, even if it is stored on an employee’s phone.

Read your contracts and workplace policies

There is no general legal right for an employer to search an employee’s phone. But employers can take steps to ensure employees are meeting their obligations under their employment contracts and workplace policies.
Employers can only inspect employees’ phones if:
- they have an express right to do so under:
  - an employment contract; or
  - a workplace policy (e.g. an Acceptable IT Use Policy, or Investigations Policy, or Code of Conduct); and/or
- where they instruct an employee to hand over their phone and it is a “reasonable and lawful instruction”.

Workplace investigations and privacy considerations

Employers will have good grounds for instructing an employee to hand over their phone for inspection if they have reasonable grounds to suspect that evidence of a breach of a workplace policy, employment contract and/or other misconduct will be found on the phone, e.g. that the employers’ intellectual property or confidential information has been stolen, or that workplace safety or anti-discrimination laws have been broken.
Because an employee’s phone will probably contain personal information about the employee that has nothing to do with work, employers need to think about the Privacy Act 1988 (Cth) when accessing an employee’s phone. But exemptions exist for “employee records” and also where the employer “has reason to suspect unlawful activity or misconduct of a serious nature” and “reasonably believes that the collection or use is necessary to take appropriate action”, which, together may cover most of the employment-related material of interest to the employer. (Remember that the Privacy Act applies to private practices of any size, because we are health businesses.)

The employer owns the work WiFi system

The employer owns the practice’s WiFi system, and so will have the right to monitor employee access to practice systems using personal devices. But care needs to be taken to comply with State and Commonwealth workplace surveillance laws. For example:
- in NSW, employers cannot carry out surveillance of an employee’s phone/computer without prior notice in writing and a policy (see s10 of the Workplace Surveillance Act 2005 (NSW)); and
- under Commonwealth laws, employers have to notify employees of any listening to or recordings of workplace communications, including phone calls and emails (Telecommunications (Interception and Access) Act 1979 (Cth)).

The Federal Court held in Griffiths v Rose [2011] FCA 30 that an employer’s monitoring of its employees use of work-provided IT equipment to ensure compliance with the employer’s code of conduct, was lawful under the Privacy Act. Logically, some lawyers think this would apply to an employee’s use of a personal device via the practice WiFi system.

Bottom line

Employers and employees should review their employment contracts and workplace policies to assess whether employers have the express right to access employees’ phones and, if so, in what circumstances. If there is a workplace investigation into an employee’s conduct, it is very common for the employee to be asked to give the employer access to his/her phone for the purposes of conducting the investigation. When an employee refuses, the key legal issue is whether the request was lawful and reasonable in the circumstances. Employees should be aware that, generally, employers own information created by employees during the course of their employment, and own workplace WiFi systems.

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

Related articles:

The tech-savvy speech pathologist: 5 technology-based ethics challenges and how to tackle them

Key source: De Flamingh, J. & Magness, P. (2018). The limitations of a modern day bag search. Law Society Journal, 48(76-77).

Image: https://tinyurl.com/y7ko9zul

Happy New Year!

11 January 2019 By David Kinnane Leave a Comment

Happy New Year to all our friends, followers and fellow speech pathologists! We wish you all the best with your practices in 2019.

We’ll be uploading lots of new products this year, so feel free to check back in on a regular basis.

Hope you like our new video and feel free to contact us at hello@speechiesinbusiness.com.au if you’d like to get in touch.

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. David sits on Speech Pathology Australia’s Ethics Board and Professional Standards Advisory Committee and is a part-time Associate Lecturer at the University of Technology Sydney’s Graduate School of Health.

When is a casual employee really a permanent employee?

21 November 2018 By David Kinnane Leave a Comment

In Australian employment law matters, the real world substance of a work relationship often trumps what the contract says.

For example, sometimes people called independent contractors in contracts are really employees. Similarly, sometimes people called casual employees in contracts are really permanent employees – a point recently made clear by the Full Court of the Federal Court of Australia (the Court) in WorkPac Pty Limited v Skene (see case citation and link below).

Casual v permanent employee: Why does it matter?

Unlike permanent employees, casual employees are not entitled to lots of benefits under the Fair Work Act 2009 (Cth) (the FW Act), including paid leave, notice of termination, redundancy pay and paid holidays. To compensate for the lack of these entitlements, casual employees are paid a “casual loading”, currently 25% of base pay for Monday-Friday hours for speech pathologists in private practice under the Health Professionals and Support Services Award (see clause 26.2).

To be a true casual employee, the employee must have no advance commitment as to the duration of their employment or the days (or hours) worked. Some indicators of casual employment include:

irregular work patterns;
uncertainty as to the period over which employment is offered;
discontinuity; and
intermittency of work and unpredictability.

Can you side-step the issue by simply defining an employee as “casual” in their contract?

No.

Things like what the contract says, payments of casual loading, the need to submit timesheets, and the right to terminate at short notice (e.g. 1 hour) are relevant, but not of themselves decisive. Instead, what matters is the real world “objective” substance of the relationship between the employee and employer at the time. For example, there must be no long-term, firm, advance and mutual commitment to work an agreed pattern of hours.

What happens if the employer gets it wrong?

If the employee is really a permanent employee, she/he is entitled to annual leave and other entitlements under the National Employment Standards and/or the Award. In theory, employers should be able to set off any casual loading paid to the employee against these payments. But, in the Skene case, this didn’t happen because the employer had not designated a specific amount or percentage of wages to be casual loading.

Another consequence of getting it wrong is that the employer might be liable for penalties under the FW Act. The Court made it clear that ignorance of the law is no excuse, and that it’s a serious offence to mis-classify a permanent employee as a casual employee.

Bottom line

When deciding whether an employee is casual or permanent, Australian courts apply a substance over form test. Simply labelling an employee as “casual” in the employment contract and/or paying casual loading is not enough to guarantee the employee is truly casual from a legal perspective.

To mitigate the risk, employers should ensure that any casual loading paid to employees is specifically quantified in the employee’s contract and payslips. This may allow the employer to set-off that amount against any claimed entitlements. But the risk cannot be eliminated by legal drafting, as Courts will look at the true relationship between the employer and employee. Employers should therefore seek legal advice to assess the level of this risk for their businesses.

Case: WorkPac Pty Limited v Skene [2018] FCAFC 131. Full case access via the Federal Court of Australia website here.

Principal source: De Flamingh, J. & Kiley, E. (2018). Another casual conundrum: substance over form prevails (again), Law Society of NSW Journal, 72-74.

Image: https://tinyurl.com/ycvxcayp

Workplace safety for Australian Speech Pathologists in private practice: 8 things you can do this week to make your clinics safer for everyone

11 November 2018 By David Kinnane Leave a Comment

We all want our staff to be safe at work. And most practice owners I know do a lot of work to ensure staff are safe, including employees, contractors and sub-contractors, labour hire employees, students and other volunteers.

But we can always do better!

Workplace safety laws are numerous and complex, and it’s not surprising that some private practice owners are unsure about even some of their most basic legal obligations. But – as lawyers love to say – ignorance of the law is no excuse.

Private practice owners should of course seek detailed legal advice about their workplace safety legal obligations. But, to help fellow private practice owners in Australia, we thought it would be useful to provide some practical tips about things you can do quickly to improve workplace safety (and work safety law compliance) at your clinic:

Read the regulators’ fact sheets. If you don’t know the “who, what, when, where, and why” of workplace safety laws or even what “PCBU”* means, schedule and spend exactly one hour reading the fact sheets from SafeWork Australia and your State workplace safety regulator, e.g. SafeWork NSW. Even if you think you are up-to-speed, you’re almost guaranteed to learn something new – and to spot gaps in your current practices.

Display the mandatory “Medical Emergency Plan” poster in your clinic. You can access the NSW version here.

Put up the “If you get injured at work” poster. This is also mandatory. Display the poster prominently at work. You can download the NSW version here.

Create/revise an Injury Register: If you don’t have one (and you are required to!), create a simple injury register to keep records of injuries that occur at work. Courtesy of WorkSafe Victoria, here’s a good template here.

Double-check your workers compensation arrangements: Details vary State by State, but most private practices (and almost all private practices in NSW) are required to take out workers compensation insurance. In NSW, for example, we buy insurance from a public financial corporation set up by the NSW Government called icare. You can read more about it here.

Implement an infection control procedure. In NSW, Queensland, South Australia and Victoria, Speech Pathologists (as unregistered health practitioners) are required to have infection control procedures. In other States and Territories, it’s probably required anyway under workplace safety laws. You can write your own. Here’s an inexpensive template tailored for speech pathologists, based on the one we use in our practice.

Revise your emergency and first aid plans. Both written plans are legally required in all States:

for emergency plans, there’s a useful checklist from SafeWork Australia here.

for first aid requirements (e.g. including to have trained first aid providers and first aid kits), check out information from SafeWork Australia here.

Hold a dedicated workplace safety staff meeting. Set up a meeting with all your staff to discuss all the topics above, and workplace safety more generally. Consult with staff about safety in your clinic. Use the opportunity to explain your legal obligations. Also train/remind staff about their obligations to:

take reasonable care of themselves;
not do anything that would affect the health and safety of others at work;
follow your reasonable health and safety instructions, including to:
- work safely;
- follow instructions;
- ask you if unsure about how to perform work safely (especially in higher risk areas like dysphagia treatments and when conducting oro-motor assessments); and
- report injuries and unsafe and unhealthy situations to you and the health and safety representative at your work.

Of course, there are a lot of other things you need to do to comply with workplace safety laws – we’ve only touched on some of the basics. But doing these 8 things as soon as possible will at least get you started as you strive to make your workplace safer for everyone!

Key sources:

* PCBU stands for “Person Conducting a Business or Undertaking”. If you own a private practice business, that’s you!

Image: https://tinyurl.com/yckprbvt