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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.

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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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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Speech pathology graduates: Should you volunteer for experience and exposure?

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Every year, I’m approached by speech pathology grads who’ve been offered “opportunities” to work for private practices for free, e.g. to get some experience, prove their value to a prospective employer, or get some exposure to different client groups.

Reality bites

My views on unpaid “internships” and volunteer work for private practices are fairly well known; as is my interpretation of the legal position in Australia.

But I’m not naive.

Things are tough out there for grads in some places. Experience counts. And, as adult professionals, speech pathology graduates like all speech pathologists must make their own decisions in life – as much as I might rage and harp about exploitative practices like a worried parent.

4 questions to ask yourself

I pose four questions to grads mulling whether to do volunteer work, based on excellent advice I once heard Seth Godin give to freelance artists and contractors*:

  1. Are other people getting paid for doing the same work? If so, is it fair that you aren’t, especially if your hirer earns money from your work?
  2. Are you learning something of value? If so, are you learning enough to warrant giving away your services for free?
  3. Will you be given adequate public credit for the value you are providing? Is volunteering for the organisation/practice really likely to bolster your portfolio and make you more marketable?
  4. Does the hirer have a good reputation of hiring and paying speech pathologists who volunteer for a short time; or is the hirer known for a high turnover of staff and/or exploiting its workers? (If you don’t know, ask around – speech pathology is a small world.)

I also tell speech pathology graduates who decide to volunteer to:

(b) buy their own insurance (and not to rely on the hirer’s);
(c) keep the stint as short as possible (certainly no longer than a month); and

(d) trust their instincts and reflect regularly on whether they are getting value for their services.

If it feels like exploitation, it probably is.

* Principal Source: Godin, S. (2016). Freelancer Course via Udemy.

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Speech pathologists: how to get it all done, even when you’re off your game or feeling burnt out

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Working in a busy private practice can wear you down and burn you out over time if you’re not careful. On Monday mornings, my average to-do list includes:

In my “downtime” – I have lots of other fun things to do like managing bookings and cancellations, sending out letters and other resources to potential referrers, responding to online and offline feedback and queries from the public, reading new research and writing blogs, participating in social media, getting the pesky accounts to balance to ensure I don’t go bust and attending to any legal, HR, professional development and ethical/professional requirements.

Pushing all those half-written assessment reports up the deadline hill can feel a bit Sisyphean, knowing that, come Monday, it will all start again.

How to wear yourself out

In 2015 and early 2016, I found myself stuck in the clinic for very long hours, working late into my evenings, and often on weekends, too. My workload was eating into quality time, as well as time to exercise and meditate regularly, to work on projects to help the profession (like this one) and to have a life! I’d also fallen into the trap of working too much “in” my business – attending like a busy worker ant to the day-to-day tasks – and not enough time “on” my business, such as improving the quality of my services for clients. It was starting to affect my relationships and health, my mood and creativity, and my motivation to keep doing the work professionally.

In mid-2016, I determined that my work-habits were not sustainable. That something had to change. Quickly.

So how to do more in less time?

Since mid-2016, I’ve focused on getting more done at work in less time while maintaining ethical, and evidence-based standards and good client service. I tried out several leading “productivity systems”, and found many of them were too complex to use in practice. Then I found one that worked. I’ve used it ever since.

1. First, know your enemies: procrastination and Parkinson’s Law

For a couple of weeks, I wrote down everything I did at work, tracked my time, and then reviewed it. It was horrifying.

I found:

A. Heaps of wasted time, then guilt-laden attempts to make up for it:

  • staring at my computer, mulling big unanswerable questions;
  • getting side-tracked, starting lots of projects in parallel and not finishing any of them;
  • checking emails obsessively, a hangover from my law firm days;
  • reading breaking news on my phone;
  • engaged in pointless social media discussions; and
  • feeling guilty about not getting stuff done, so working on into the evening.

These are all examples of procrastination. They steal time from things that matter. They also deplete your attention, energy and capacity for critical thinking, which means all the “brain work” takes longer than it should to complete.

B. I was a hostage to Parkinson’s Law

On the clinical-management side of my practice, I found myself enslaved to Parkinson’s Law. Even if you haven’t heard the name, you’ll be familiar with its effects.

Parkinson’s Law says that:

Work expands to fill the time available for its completion.

I found regular weekly tasks, like planning therapy sessions, or writing reports, seemed to take the same amount of time in total, regardless of the number of clients I was seeing, or the number of reports outstanding. For example, I found that four-client-days took me roughly the same amount of time in total to prepare for as eight-client-days. I had unconsciously determined that planning took X hours, and then gave myself X hours to plan the sessions.

2. Use The Pomodoro Technique

I first heard about this simple concept when listening to a podcast while out on a jog. At first, it seemed a bit gimmicky. But I decided to give it a go. And now I’m sold on it. A Pomodoro Evangelist, if you will.

The Pomodoro Technique is named after the tomato-shaped timer that was very popular in the 1980s. But you don’t need a tomato-shaped timer. I use my phone.

Here’s how to do it:

(a) Decide and stick to your “home time”. One way to stay focused is to force yourself to leave at a decent hour. (I like to have dinner with my kids, so I need to leave work in time to get home. It’s almost non-negotiable, although I still make the odd exception, e.g. if an adult client needs to see me urgently.)

(b) Jot down your “to-do” list the night before, with a “frog” at the top. This is the last task I complete before leaving work each day. I try to put the least thrilling important task at the top of the list – something Mark Twain called “eating a live frog first“. It means I can hit the ground running.

(c) Be ultra-specific in defining your goals for the day. Rather than set big, ambiguous goals (e.g. “Become a better speech pathologist”, or “Do marketing”), I set very specific goals, always starting with a specific verb/action e.g. “Plan [X] therapy sessions”, “Call [specific teacher] to discuss [specific client’s] progress”, “Read [specific article]”, “Score CELF-4 and Bus Story results for [client]”, “Write 1000 word blog on [reviewed article] for website”.

(d) As soon as I get in to work, I set my phone timer to 25 minutes. No time for checking the news or email, or reflecting on the success of my Sunday BBQ. Just straight down to “eating that frog”. During that 25 minutes, I focus on the single task. I allow no distractions.

(e) Once the timer rings, I cross off one “pomodoro” and rest for a full five minutes. I stretch, skull some coffee or water, walk around the clinic and have a chat with my team members about the day’s workflow. I do not check emails, or social media. I know exactly what’s coming up because it’s on my “to-do” list. If something unexpected and urgent comes up, I amend my “to-do” list, but only when absolutely necessary.

(f) After the five minute break, I set the timer for 25 minutes, and get stuck into the next item on my list.

(g) After four “pomodori“, give yourself a 15-30 minute break.

3. How I use the technique in my clinic

I try to do at least 10 of these 25 minute pomodori a day – 250 minutes of solid work – outside therapy sessions. Where possible, I try to set each goal to something I can do well in 25 minutes. (I got better at this over time.) If I finish a task within 25 minutes, I spend the “leftover time” improving whatever I was working on, rather than jumping to the next task or *gasp* checking my email. For longer tasks, like writing an assessment report, I dedicate multiple pomodori to it over the course of the day (usually with other tasks scheduled between each to keep me focused).

Despite the temptations, I try to take the full five minute break after each pomodoro; and reward myself with a longer break after four, even if I feel I’m “on a roll”. If I have a “great idea” about something else in the middle of a pomodoro, I simply jot down the idea in my Evernote notebook dedicated to “random thoughts”, and get back to work. At the end of the pomodoro, I review the “great idea”. If it is in fact great (which is rare), I add it to my to-do list. If not, I delete it.

I never check emails during a pomodoro. I let calls go through to voicemail if I’m in the middle of a pomodoro and there’s no-one else to pick up the phone. If someone at work wants to speak with me, I ask if it’s an emergency. If not, I tell them I will speak to them at the end of the pomodoro. (My team members are used to this now!)

4. Why does it work?

Not entirely sure! Here’s what I think:

  • Chunking big tasks into smaller tasks makes them less intimidating – easier to start.
  • More control over my day. After doing it for over six months, I’ve now internalised the habit.
  • I find it easy to focus for 25 minutes. Any longer than that, and I get bored and distracted.
  • It combats Parkinson’s Law: e.g.:
    • each Monday, I assign three pomodori to plan all my sessions from existing management plans;
    • every work day, I assign one pomodoro to resource and set up each therapy session – no more, no less.
  • The timer jolts you out of procrastination or gazing blankly at the computer.
  • As you tick off each 25 minute pomodoro you build momentum and get more out of your day.
  • When I leave at my designated “home time”, I feel like I’ve accomplished a lot. I’ve also used up most of my mental energy and attention for the day on tasks that matter. I can relax and hang out with my family without guilt.

Whatever the reasons, implementing the Pomodoro Technique has led to big and sustained improvements in my productivity. If you’re struggling to get things done efficiently, give it a go!

Principal source: Cirillo, F. (2013). The Pomodoro Technique. 3rd Edition. Updated & Expanded by FC Garage GmbH (first published 2006).

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

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When people tell me about the so-called “evils” of new technologies, I tell them about one of my first jobs as a lawyer for a big law firm.

I was working on a big international transaction led by one of Australia’s leading lawyers. Sounds glamorous? My job: to come in on Saturday morning and sit by the banks of fax machines (there were about 30 of them) and wait for an important fax from the client. While I waited, I affixed bar code stickers to documents. Then I photocopied each document and put the copies into blue lever arch folders. I then numbered the folders and dictated a note about what I’d done onto a tape recorder to be transcribed by a secretary. After 12 hours of barcoding, the fax arrived. I snatched it, still warm, and called the senior associate. I then read it out – twice – and went home.*

These days, of course, no one sits by fax machines waiting for documents. We check our emails instead. (Sometimes, several times a minute.)

It’s trite to say that technology has changed the way many professionals do their work. New technologies can make our jobs easier. But they trigger a bunch of ethical challenges, too.

Lawyers, such as Tahlia Gordon, have been talking about these issues in the legal sector for a while. Many are just as relevant to speech pathologists.

Here are 5 technology-related ethical issues we all need to think about:

1. Mobile device and “wearable” data breaches

Issue: Most speech pathologists use mobile phones, iPads and other mobile devices for work. I’ve spotted a few trend-setting speech pathologists wearing Apple Watches and other “wearables”. Client confidential information stored on devices like these can leak or be misused. Devices can be lost or stolen. They can also be hacked, e.g. when using unsecured wireless networks in cafes. Often, the information stored on our devices is unencrypted.

Mitigators: Your Code of Conduct should cover technology use, prohibit work via unsecured networks, require password protection, and encryption of sensitive confidential information. Client consents should be requested and obtained before sending reports and other data to them over unencrypted networks.

2. Social media misuses and abuses

Issue: Lots of speech pathologists use Facebook, LinkedIn, Twitter, YouTube, and other social media platforms, especially in private practice. Ethical risks include accidentally disclosing confidential information, breaches of our advertising rules (see Speech Pathology Australia’s Policies & Procedures Manual, Section 3.03), saying something defamatory in the heat of the moment (e.g. when responding to a “troll”, negative online review or challenging comment, inadvertently forming a speech-pathologist-client relationship (e.g. by giving advice over social media), and being hacked.

Mitigators: Have a robust Social Media Policy and enforce it. On social media platforms like Facebook, adopt House Rules about the types of behaviour that are not tolerated when interacting with your page.

3. Plagiarised and ghost-written online content

Issue: Content-rich blogs can attract clients and establish credibility and authority. However, it takes time to establish and maintain a decent blog, and many speech pathologists simply don’t have the time to do it. Sometimes, it can be tempting to use someone else’s work, presenting it as your own without attribution. This is plagiarism and is unethical. Another option is to outsource your blog to a junior staff member or freelancer or “ghost-writer”. If mishandled, these ghost blogs can damage your reputation: a blog that purports to be written by you but is in fact written by someone else may be deceptive. It can also undermine the trust that a good blog establishes with readers. Ghost-written blogs may also be factually incorrect – especially if written by a freelance writer with a limited knowledge of speech pathology. As the blog owner, you have an ethical responsibility to ensure that the information included in your blog is accurate and not misleading.

Mitigators: Always attribute sources. Use appropriate website disclaimers.  Have a clear editorial policy about your content. Review blog content critically before posting to ensure it is technically correct and not misleading.

4. Cloud-based software

Issue: Services like Dropbox, Evernote, and Google Docs are cost effective tools to create, edit, share and access documents from multiple devices. But using these services can be an legal and ethical minefield when it comes to questions like “Who owns the data?”, “Where is the data stored?”, “Is the data confidential, encrypted and/or otherwise protected?”, “Who can access the information?”, “What happens if the service provider goes bust?” and “Does the service comply with applicable privacy and health record laws?”. Regulators like the Office of the Australian Information Commissioner have published lists of questions to ask cloud-based service providers about privacy. But, in practice, it’s very difficult to get straight answers to these questions from service providers, and impossible to negotiate changes to the service terms of big generic service providers like Dropbox.

Mitigators: Have a well-drafted Privacy Policy and follow it. Don’t store confidential client data in the cloud. If you do, investigate “medical quality” cloud storage systems that warrant that they are compliant with privacy and health record laws, rather than generic cloud-based storage services like Dropbox.

5. Giving free advice online

Issue: These days, any member of the public with an Internet connection is a potential client. The line between general informational advice and speech pathology advice can be hard to draw, particularly if you respond to specific comments and questions made by users in response to content on your site.

Mitigators: Use appropriate disclaimers. Do not offer recommendations tailored to the unique facts of a person’s circumstances online. Instead, invite the person to contact you personally to discuss their circumstances and to explore whether you are in a position to help them prior to deciding whether to establish a speech pathologist-client relationship.

Bottom line

Almost all speech pathologists use technology to deliver speech pathology services to clients. Most of us – me included – probably don’t give much conscious thought to some of the ethical issues that arise from new technologies. We should. It’s tempting to wait for professional bodies and ethics experts to figure out rules to manage some of these issues. But we should use our professional judgment to decide how to use technology ethically in our everyday practice, remembering that our professional ethics are based on values, not rules.

Principal source: Gordon, Tahlia. (2015). 7 ethics nightmares you didn’t know you had. Law Society of NSW Journal Issue 13 (July), 34-37.

* Actually, being a Saturday night in the 1990s, I probably went to the pub.

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