If a patient is injured during treatment, the competency of all staff involved will be scrutinised. The legal liabilities become greater if non-clinical support staff are performing certain tasks, writes KAREN CROUCH.
Increasingly, for business productivity or convenience, non-clinically trained support staff are required to perform routine clinical tasks, including patient prep such as applying eye drops, pre-testing protocols or sometimes even testing itself.
The obvious question for practitioners and owners is whether this is risky for patients and practices? Understandably, it may be a necessary division of labour to service patients in a timely fashion and driven by commercial or environmental factors; for example the prolonged pandemic impacting staff availability coupled with an increase in demand for services. However, consequences may be severe for patients, treating staff and practice owners if proper precautions aren’t observed.
Even a medically-trained and registered clinical practitioner must limit their practice and only provide services within their skill level and experience. And so, the act of a clerical staff member performing clinical tasks must be scrutinised.
The Health Practitioner Regulation National Law (NSW) states non-medically trained staff should not practise medicine nor hold themselves out to be a medical person. However, industry associations such as the Medical Board of Australia appear reluctant to specifically weigh in on the topic, implying the practice may continue to be employed provided suitable, protective measures exist and they are diligently adhered to while recognising inherent risks of sub-optimal performance.
What does this mean for non-medically trained staff who undertake clinical tasks as they too may be at risk, not to mention responsibilities of practice owners?
Research reveals diversity between clinics and the extent to which nonclinical staff undertake tasks that would typically be deemed ‘clinical’. On a regular or intermittent basis, there are certain factors to consider in assessing competency of support staff to perform clinical tasks, including:
• Level of training: This is probably the most important factor. For example, an unregistered nurse receptionist is likely to be more competent and therefore presents the safest option to protect patients, staff and practice owners;
• Process by which the task was delegated: Was the delegation made with a clear knowledge that the receptionist was sufficiently competent and suitable to perform the task? This responsibility naturally falls directly on the supervisory staff (owners if relevant) who knowingly delegate such tasks;
• Patient consent: How are clerical staff presenting themselves to patients who have every right to know who will be administering their treatment and, if appropriate, details of related medical supervision by a qualified practitioner? In the absence of such information, the patient may be giving an “uninformed, implied consent” if the employee involved is not clearly identified as a clerical staff member rather than a clinician.
Consequently, the patient may be deprived of the opportunity to either refuse treatment or pose questions about the level of oversight being provided (refer to next point). If the patient isn’t adequately informed of these conditions and afforded the right to make an informed decision, the supervisor/owner failing to do so will bear the responsibility for potentially greater penalties than just treatment mishaps;
• Supervision: Is the task being performed under the supervision (whether direct or indirect) of a clinically-registered and trained practitioner and has the patient been informed accordingly? This requirement cannot be understated, particularly where a non-clinical staff member with reasonable experience is concerned, as supervision requirements have the higher potential to be overlooked.
In performing clinical tasks, a duty of care is owed to the patient. If a patient is injured during treatment, the level of skill, knowledge and competency of staff involved will be of direct relevance to issues of legal liability. Medical practitioners may be held liable for the conduct of their non-medical ‘practitioner’ employees if the above mentioned safeguards are ignored. Even if the policy does cover treatment by non-clinical staff, it’s important to carefully review terms and conditions that must be complied with.
Medical practice indemnity policies usually cover claims against employees or errors by unsupervised staff. Medical practitioners are more exposed if employees are unqualified, untrained and/or unsupervised. These policies commonly have exclusion clauses stating acts or omissions that are beyond training and outside terms of employment are not covered. Please review your staff skill mix, delegation procedures, employment contracts and insurance arrangements in this regard.
ABOUT THE AUTHOR: Karen Crouch is Managing Director of Health Practice Creations, a company that assists with practice set-ups, administrative, legal and financial management of practices. Contact kcrouch@hpcnsw.com.au or visit www.hpcgroup.com.au.
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