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SLP Compliance System

Speech pathologists: let’s improve our progress notes to help our clients – and ourselves

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Why it matters:

Writing good file/progress notes of our consultations is:

  • required by our Professional Standards, Code of Ethics, Statutory Code of Conduct and NDIS Code of Conduct; and
  • helpful if a complaint is made against us or if we are sued, e.g., for professional negligence.

Case in point:

D Lane v Northern NSW Local Health District [2013] NSWDC 12 

Zoom in:

Good progress notes are:

  • accurate;
  • objective;
  • respectful;
  • contemporaneous;
  • up-to-date;
  • legible;
  • complete; 
  • securely-stored; and 
  • kept for at least the minimum period required by law (e.g. in NSW, 7 years after last service or when a child client turns 25, whichever is later).

Yes, but:

Good note taking takes time and energy. You need a system to ensure progress note-taking fits into your daily workflows and doesn’t get on top of you. 

Go deeper:

To read more about our progress note system, check it out here.

Read more:

Our Progress Note System 

D Lane v Northern NSW Local Health District [2013] NSWDC 12

Australian SLPs: do you store progress notes in a cloud-based practice management system? 

NDIS Providers: New Complaints Management and Resolution System – Policy Template now available!

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We’ve had quite a few requests for this one!

So, last week, we sat down with the National Disability Insurance Scheme (Complaints Management and Resolution) Rules 2018 and drafted a policy template designed to help you meet its requirements.

Having such a policy is a condition of registration – and something NDIS providers can expect to be asked for as part of verification or certification.

The template policy is designed to form part of your compliance system to support NDIS participants and other people to make complaints about supports and services.

We’ve used a plain English, accessible writing style, and included a complaints form, too.  We’ve also made both documents available in PDF and Word versions so you can use and adapt for your needs.

Download the NDIS Complaints Policy

By way of thanks, we’ve given a free copy of this policy template to those of you who suggested we write it.  If you can’t find a template, policy or resource, please get in touch and we will add it to our to-do list!

We’ve also just launched the policy document that will comply with the requirements of the NDIS (Incident Management and Reportable Incidents) Rules 2018.

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Australian speech pathologists: 13 things you should know about health care complaints and the Health Care Complaints Commission

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As healthcare workers, we share the responsibility to ensure we are delivering health services in a professional, safe, and ethical manner. This week, we attended a very practical workshop hosted by Tony Kofkin and his colleagues from the Health Care Complaints Commission NSW (the ‘Commission’) to better understand the role of the Commission and its complaints management process. 

Here are our 13 key takeaways for speech pathologists:

  1. Speech pathologists in Australia are “Unregistered Health Practitioners”, because we are not currently required to be registered under the Health Practitioner Regulation National Law. You can read more about this here.
  2. Speech pathologists in Australia are self-regulated. For example, members of Speech Pathology Australia are bound contractually by the Code of Ethics, and Certified Practising Speech Pathologists are also bound by professional self-regulation professional development and other obligations.
  3. Self-regulation doesn’t mean Australian speech pathologists are completely unregulated, however. Speech pathologists in New South Wales, Queensland, South Australia and Victoria, are subject to “negative licensing” under statutory Codes of Conduct. In NSW, for example, speech pathologists must display and are bound by the Code of Conduct for Unregistered Health Practitioners. This Code of Conduct is set out in Schedule 3 of the NSW Public Health Regulation 2012. A National Code – which is very similar to the NSW Code – has been implemented in South Australia, Queensland, and Victoria, and is being implemented across the other States. 
  4. Sometimes, clients, families or others may wish to make a compliant about a speech pathologist. Most of the time, this is best managed directly with the speech pathologist in question. Speech Pathology Australia has a complaints system, including an Ethics Board to investigate alleged breaches of the Code of Ethics. However, people can also make complaints about speech pathologists to the Health Care Complaints Commission (or its equivalents in other States). This is not very common, with the most serious complaints being lodged with Speech Pathology Australia and investigated by the Ethics Board.   
  5. The Commission is independent of Government (including the Minister for Health) and is obliged to investigate every written complaint it receives, although protecting public health and safety is its paramount consideration.
  6. The Code of Conduct outlines minimum standards for safe and ethical practice, and includes clauses about:
  • the need to have a clinical basis for treatment;
  • competence;
  • informed consent;
  • infection control;
  • improper relationships;
  • not making claims to cure serious illnesses;
  • working when impaired (e.g. by mental or physical illness or when under the effects of drugs and alcohol);
  • professional indemnity and other insurance requirements;
  • record keeping/progress notes; 
  • first aid;
  • privacy; and
  • displaying the Code.
The Code of Conduct for Unregistered Health Practitioners on display at our clinic.

7. Common complaint issues include:

  • professional conduct, including elder abuse and theft;
  • treatment, including treatment advice that causes significant harm; and
  • communication issues, including abruptness and refusal to answer questions.

8. If a complaint is received, the Commission generally seeks records from the speech pathologist. The Commission has coercive powers if you do not respond.

9. Investigations follow a two stage test: (1) Is there a breach of the Code of Conduct? and (2) is there a risk to public health and safety? The Commission can seek expert advice if needed.

10. The Commission has the power to make interim and final prohibition orders, preventing the speech pathologist from providing health services or imposing conditions (e.g. training, supervision) on the provision of health services. Reciprocal arrangements are in place with Queensland and South Australia (but not Victoria) to ensure that prohibition orders made in one of these states apply to the others. In practical terms, this means, as an example, a speech pathologist won’t be able to provide health services in Queensland if a prohibition order has been issued in NSW (and vice versa).

11. The Commission can also make public statements about health practitioners, and/or make comments to the speech pathologist to help the speech pathologist improve her or his practice.

12. If a speech pathologist in NSW is unhappy with the outcome, she or he can seek a review by the NSW Civil and Administrative Tribunal.

13. The Health Care Complaints Commission publishes a Register of Orders on its website. You can access it here.

To access an A3 poster of the Code of Conduct to display at your clinic or business, see the Health Care Complaints Commission’s website here.

Related articles:

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Australian SLPs: do you store progress notes in a cloud-based practice management system?

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Reputable cloud-based practice management systems, like Cliniko and HealthKit, are becoming more sophisticated. Many Australian SLPs in private practice are using them to store client progress notes.

I’m all for using systems to save time and money. And it’s hard to ignore the (as yet, unrealised) dream of a paperless clinic. But if you are using or planning to use a practice management system to store progress notes online, it’s best to be aware of some of the legal risks, if only so you can think about how best to manage them.

First, it’s worth recapping some key laws that regulate speech pathologists’ progress notes in Australia.

1. Do we need to keep progress notes?

Yes.

In most Australian States, there is a legal requirement to take progress notes. For example, under the NSW Code of Conduct for Unregistered Health Practitioners, we “must maintain accurate, legible and contemporaneous clinical records for each client consultation”. For States and Territories who have not yet implemented the National Code, there is still an ethical requirement (see clause 3.3.6 of the Speech Pathology Australia Code of Ethics).

2. Who owns progress notes?

Generally, as a matter of law, principal speech pathologists own their file notes. Sole practitioners have full ownership of their notes. Employers own the progress notes of their employed speech pathologists. In most cases, the hirer/principal owns progress notes relating to clients served by independent contractors (although this is a bit of grey area and should be documented in the contract between the hirer and the independent contractor).

In group practices, and practices with a high turnover off staff, the analysis of who owns a specific progress note (and who owes legal obligations to retain and protect it) can get complicated quickly.

3. Who, apart from the speech pathologist, has access rights to progress notes?

Clients have statutory access rights to progress, including under the Privacy Act 1988 (Cth) (“Privacy Act”).

Progress notes can also be subpoenaed by a party to litigation, e.g. in Family Court custody disputes or where there is an allegation of professional negligence.

4. For how long do speech pathologists need to keep progress notes?

This varies, State by State. But it’s longer than many people think. In NSW, the ACT, and Victoria, for example, you are required to keep progress notes until a child client turns 25, and, for adults, for seven years from the date of the last service.

You may also need to keep progress notes in some States if you anticipate litigation.

5. What are speech pathologists’ key privacy obligations with respect to progress notes?

For the purposes of the Privacy Act:

  • speech pathologists in private practice – big or small – are “health service providers”; and
  • our file notes and reports contain “health information”, which is one of the most sensitive categories of personal information.

This means that, compared to non-health related small businesses, we need to take extra steps to protect our clients’ privacy.

First, we need consent to collect health information. We also need to tell clients how we handle their information, including how we will store and protect it. The most common way of doing this is through a privacy policy and a written notice at or just after intake.

Speech pathologists must take reasonable steps to protect personal information from misuse, interference or loss; and from unauthorised access, modification or disclosure. If we are sending personal information offshore, we must take reasonable steps to ensure no privacy breaches will occur.

Since 22 February 2018, the Privacy Act has imposed a mandatory breach notification requirement on health providers for some data breaches, including breaches that health providers believe are likely to result in serious harm to patients. (You can read more about this here.)

6. Progress notes stored in practice management systems

The laws above apply regardless of how you write progress notes or where you store them. Storing progress notes in a cloud-based practice management system raises a few additional issues speech pathologists need to think about.

To help make the discussion as practical as possible, I looked at the Cliniko and HealthKit Terms of Use as of 9 July 2018. I don’t currently use either service in my practice, but I know both are reputable services used by many speech pathologists.

(a) Who is responsible for complying with Australian laws that regulate progress notes stored on practice management systems?

The speech pathologist.

Health service providers, including speech pathologists, cannot delegate their legal obligations to service providers. Most practice management system companies make this very clear in their terms of use. For example:

  • Cliniko’s terms state that the speech pathologist using the service “must comply with all applicable rules and regulations, including without limitation privacy laws, and must not infringe or violate third party rights”; and
  • HealthKit’s terms state that a speech pathologist using the service warrants that they “manage Personal Information in accordance with Australian Privacy Principles….”.

(b) Does the speech pathologist still own their notes?

Probably, though it’s best to check before using a practice management system to store progress notes. For example, Cliniko expressly claims no intellectual property rights over the data or other material speech pathologists provide. HealthKit’s Terms of Use appear to be silent on this point.

(c) Do you need client consent to store progress notes in a cloud-based practice management system?

In our view, yes. And, in their terms, some providers appear to agree with us.

For example, HealthKit’s terms state that speech pathologists using the service must warrant (promise) that they “have disclosed to and obtained the consent of patients that their personal and non-personal data, including health records and payments information, are stored on [HealthKit]…[and] further warrant that [they] have disclosed and obtained patients’ consent for the possible uses of the information stored on this site”. HealthKit’s terms go on to state that speech pathologists using the site warrant that, “where in your reasonable belief the patient is physically or mentally incapable of consent, you have disclosed and obtained the consent of the patient’s guardian, next of kin or other relevant party”.

(d) What happens if the practice management system loses or deletes your progress notes, goes down, if your service is suspended or terminated, if the provider goes out of business, or if the service is otherwise discontinued?

The speech pathologist remains on the hook for the privacy, health record retention and other obligations in respect of progress notes. Even if the management system deletes or otherwise loses your data.

Most practice management system companies are very clear on this. For example:

  • the Cliniko terms provide that use of their service is at the speech pathologist’s sole risk and that the speech pathologist is solely responsible for any damage resulting from use of their service; and that the entire risk arising out of use, security or performance of their service remains with the speech pathologist. They also make it clear that if there is loss or damage to your data, your only remedy will be for the company to “use reasonable commercial endeavours to restore the lost or damaged data from the latest back-up of such data” maintained by the company. They also make it clear that they do not promise to provide an uninterrupted or error free service.
  • the HealthKit terms provide that the service is provided on an “as is” and “as available” basis and that they may (among other things) “discontinue this web site and its services or delete the data you provide, whether temporarily or permanently”.

(e) With whom can the practice management system company share progress notes containing health information?

This varies from company to company. For example:

  • the HealthKit terms state that “sometimes we may transfer information to persons outside Australia (e.g. a contractor located in another country who provides us with services). By giving us your personal information, you consent to such disclosures”. They also state that they can share information with Medicare, the Department of Veterans’ Affairs and “our SMS provider and other third parties that we contract or with whom we integrate for the for the purpose of identifying you”.
  • the Cliniko terms state that users consent to the company “transferring your data to third party IT providers, including our website host and back-up service provider, outside Australia”. Cliniko’s Privacy Policy states that their use of data that is personal information relating to third parties (including clients) is limited to providing support and technical assistance.

In practice, this means you need to look carefully at the specific provider’s terms of use and privacy policy. In particular, you need to check that the service provider does not claim the right to use your clients’ data for direct marketing, or to sell it to third parties for commercial purposes.

(f) What happens if the practice management provider suffers a data breach involving your progress notes?

The speech pathologist is responsible to their clients and the regulator for compliance with the Privacy Act, including the mandatory notification requirements for serious breaches. To do this – obviously – you need to know that a breach has occurred and speech pathologists should check that their service provider will notify them in a timely fashion that a data breach has occurred. Cliniko, for example, states in their Privacy Policy that they will notify users within 72 hours of discovering a breach.

Bottom line

Storing progress notes on a cloud-based practice management system is an attractive proposition for many speech pathologists. Storing progress notes in the cloud raises compliance issues, including with respect to client privacy and the retention of health records. Regardless of how speech pathologists write and store their progress notes, they are responsible for complying with Australian laws that apply to the creation, storage, use and disclosure of health records.

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.

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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.

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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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