From Friday August 1, 2008 ALL Massage Therapists working in NSW will be required to display a copy of the NSW Code of Conduct for Unregistered Health Professionals in their clinic(s).

This new regulation was made as an amendment to the NSW Public Health Act (1991).

The new Code of Conduct also requires Massage Therapists to display a specific notice giving clients information about the way they can make complaints to the Health Care Complaints Commission.

A copy of the Code of Conduct is available from the attachment below.

Please note that the actual Code of Conduct begins at Schedule 3 on page 3 of this document.

A.R.M. ANNUAL GENERAL MEETING NSW

Date: Sunday 30th August 2009 – 3.30pm

Venue: Marion Court, 18 Margaret Street, Strathfield NSW (Adjoining Bethany Holistic Health Centre)

See Integration of Reflexology into a massage treatment for more information

Attached below you will find the appropriate Privacy Policy Statements

The following information should enable the ARM member to comply with the amended Commonwealth Privacy Act 1988 which was enacted on 21st December 2001.  This Act affects all persons and organizations that, in the course of their operations, assemble and file an individual’s personal information.
This information has been collected and assembled for use by ARM members and has been designed to allow ARM members to obtain and file clients’ personal information, including health information, in a responsible manner which will conform to the National Privacy Principles (NPPs) as set out the Act.
Included in this information is an overview of the Act together with an explanation of the 10 National Privacy Principles (NPPs) and how they affect you.
It must also be remembered that the provisions contained in the Privacy Act apply not only to the health practitioner but also all staff who handle an individual’s health information.
Each State has their own enacted or pending Privacy Act, based mainly on the Commonwealth Privacy Act.
This information must be considered as only a guide to the Privacy Act 1988 and is not intended to be representative of a legal document.
It is recommended that all members familiarise themselves with the Act current in their State to ensure they comply with the legislation.

Further information is available from the Office of the Privacy Commissioner’s website at: www.privacy.gov.au.

This site will direct you to the Privacy Acts of all Australian States.

The following statutory requirements apply:
Privacy Act 1988 (Commonwealth)
Privacy and Personal Information Protection Act 1998 (NSW)
Health Records and Information Privacy Act 2002 (NSW)

Privacy NSW,
Office of NSW Privacy Commissioner,
PO Box A123, Sydney South, NSW, 1235,
02 9268 5588
www.lawlink.nsw.gov.au/privacynsw

Privacy Act

The Privacy Act 1988 (Commonwealth), which applied previously to the public sector, has been extended to apply to all providers of health services effective 21 December 2001 (“The Privacy Amendment, Private Sector, Act 2000”).

The amending Act prescribes ten National Privacy Principles (“NPP”) which relate to data collection, confidentiality and security.

Practitioners will note that the NPPs canvass and regulate a wide range of information collection and handling practice; in particular, obtaining informed consent of a patient to the collection of health information, the security and storage of such information, and patient access to their information.
While it is unlikely in a practical sense that the Act will require any significant change in the provider/patient relationship, administrative and procedural adjustments will need to be effected within Practices.

A provider will now need to collect health information from patients only to the extent necessary to adequately provide the requisite health service. The patient’s consent will be required to collection of the information.

Once the information is collected by the Practice, any disclosure to external parties such as other health providers will ordinarily require the consent of the patient.

Practitioners will be required to put in place an access regime where a patient requests access to their health records. There are some exceptions to the right of access where, for example, access would pose a serious threat to anyone’s life or health or have an unreasonable impact on someone else’s privacy.

Practitioners may be confronted with difficult situations where the parent, or guardian of a patient under the age of eighteen years, requests health information in respect of the child, and the child does not consent to the release of information.

Where access to information is requested, the Practice is entitled to make a reasonable charge for copying and administrative or professional time required to give effect to the access request.

Practices should set in place policies and procedures such that no information is inadvertently or unlawfully disclosed. Staff members should be made aware of the obligations of confidentiality. Office practice should be such that no staff member releases any information to any third party, whether a health provider or otherwise, without the prior consent of the patient.

Reception areas, waiting rooms and consulting rooms should be set out in such a way that any health information in respect of one patient is not inadvertently disclosed to other patients or persons.

THE NATIONAL PRIVACY PRINCIPLES

NPP 1: Collection and NPP 10: Sensitive Information:
Set out providers’ obligations when collecting health information from patients.  These include collecting health information only with consent and collecting only the information necessary to provide the service.

Only collect information necessary to deliver the health care service and collect lawfully and not intrusively.  You must also obtain the patient’s consent to collect this information explaining why you need the information, how it will be used and to whom it may be given. 

The information included in this Journal contains an example of a Consent Statement, which can either be used separately, or could be included in the “Patient Information Form”.

NPP 2: Use and Disclosure:
Sets out how health information, once collected, can be used within the organization or disclosed to third parties outside the organization.

Information collected should only be used for the primary purpose, or for directly related secondary purposes, if the patient would reasonably expect this disclosure i.e. directly related to the patient’s health care.  This may at times require sharing this information with other health care providers.

In addition there may be circumstances where information has to be disclosed without patient consent such as some emergency situations, by law e.g. mandatory reporting etc, to fulfil a Professional Indemnity Insurance obligation and provision of information to third party payors for billing and rebate purposes.

The information included in this Journal contains an example of a “Disclosure Register” which should be used for recording disclosures made to others required under or authorised by the law without the consent of the patient.

NPP 3: Data Quality and NPP 4: Data Security:
Set standards for keeping information up-to-date, accurate and complete, as well as for protecting and securing it from loss, misuse and unauthorised access.

All patient information must be maintained in a form that is accurate, complete and up to date and to store this information in a secure manner that protects the patient’s privacy.  The access by unauthorised persons must be considered at all times.

Examples of security breaches would include, patient files being left on a desk where unauthorised persons can access the files, computer screens containing patient information being in view of others, discussing a patient’s health information on the telephone in hearing of other patients etc.

Included in this Journal is an example of a “Staff Confidentiality Agreement” which should be signed by each staff member, to acknowledge that they have read and understand the requirements of the Privacy Act.

NPP 5: Openness:
Requires providers to be open about how they handle health information, including the need to develop a document (such as a privacy policy) to clearly explain how they handle health information.

Patients need to be informed that your clinic adheres to the provisions of the Privacy Act 1988.  The information included in this Journal contains a notice which should be displayed in a prominent position in your rooms, and which alerts your patients to the fact that your clinic adheres to the National Privacy Principles of the Commonwealth privacy legislation.

Also contained in this Journal is an example of a Privacy Policy Statement, which must be made available to your patients on request.
 
NPP 6: Access and Correction:
Gives patients a general right of access to their own health records, and a right to have information corrected, if it is inaccurate, incomplete or out of date.
In general terms patients have the right to access their personal information and correct any incorrect or incomplete information.
This applies to all information gathered on or after the 21st December 2001 and any information collected before that date which is referred to or used after that date.
For example if a patient consulted you for a particularly condition on the 1st June 2001 and received treatment for the same condition, or a related condition after the 21st December 2001, they would be entitled to access their health information from the 1st June 2001 onwards as long as it related to the ongoing condition.
Patients do not have to make their request for access in writing or give reasons for wanting to access their information.  However, it may be necessary to clarify the scope of the request as patients may not necessarily require a copy of their entire file but only want access to certain records.
The request for access should be noted on the patient’s file and a charge may be levied for the copying of patient files.
There are some circumstances where access to personal health information is restricted and in these cases the reasons for denying access should be explained.

Such circumstances would include situations where the release of the information would pose a serious threat risk to a person’s health or life, or it would have an unreasonable impact on someone else’s privacy, and the request is considered frivolous or vexatious.

The rights of children to privacy must also be considered.  Based on the professional judgement of the practitioner and consistent with law, it might at times be necessary to restrict access to personal health information by parents or guardians.

The information included in this Journal contains an example of a “Patient Access Form” which can be used to record details of a patient’s access to their health information.

NPP 7: Identifiers:
Limits the use of Commonwealth government identifiers (such as the Medicate number or the Veterans Affairs number) by providers to the purposes for which they were issued.

At present the health provider is not permitted to use these identifiers for their own record keeping systems, and they must only be used or disclosed for the reasons they were issued.

NPP 8: Anonymity:
Where lawful and practicable, patients must have the option of using health services without identifying themselves.

NPP 9: Transborder data flows:
Sets out obligations for providers regarding the transfer of health information interstate and out of Australia.

Complaints:
an “Incident Record” which should be used when a complaint is made by a patient regarding the handling of their personal information.

Like the Commonwealth Privacy Act which established National Privacy Principles, the Health Records Act of each state establishes privacy standards for the handling of health information.

Health information is broadly defined to include information or an opinion about an individual’s health or disability, expressed wishes about health services, health services provided or sought, and information collected in providing the health services.

Each state’s Act provides a right of access to a patient’s own health information.

Health information is held if it is contained in a document.  The purpose of each States Act is the specific protection of health records. Each state’s Act applies to not just health providers, but also any other organizations or entity which may not traditionally have been regarded as part of the health care system.

These other organisations include gymnasiums, weight loss centres, personal trainers and employers, to the extent that health information is collected or held or used by any such organization.

There are nine prescribed Health Privacy Principles (HPP).  The HPPs are similar to the National Privacy Principles which may vary from state to state.  The HPPs can be summarised as follows:

HPP1
Collection of health information – must be necessary for an organization’s activities and collected lawfully, fairly and non-intrusively – an individual must be told who is collecting and why.

HPP 2
Use and disclosure of health information – not to be used or disclosed other than for the purpose collected, without consent, except in prescribed circumstances.

HPP 3
Data quality – personal information collected, used or disclosed must be, as far as possible, accurate, complete and up-to-date.

HPP 4
Data security and retention – personal information must be protected from misuse or loss and destroyed or permanently de-identified when no longer needed.

HPP 5
Openness – policies and practices of organizations in relation to management of health information must be set out in a document to be made available to the public on request.

HPP 6
Access and correction of health information – on request, except in prescribed circumstances – out-of-date, incomplete and inaccurate information must be corrected.

HPP 7
Identifiers – only if necessary to organization’s activities – identifiers used by other agencies cannot be used or disclosed without the consent of the individual.

HPP 8
Anonymity – wherever lawful and practicable, individuals must be able to enter into a transaction with an organization without identifying themselves.

HPP 9
Trans-border data flows – personal information can only be transferred outside each state where the individual consents or the recipient organization is subject to similar privacy principles or in prescribed circumstances.

The Health Records Act of each state provides that complaints are dealt with by the Health Services Commissioner or equivalent.  The Commissioner may make rulings and can refer matters to the Civil and Administrative Tribunal or equivalent for binding orders.

Compliance notices can also be issued in respect of contraventions of the Act and the failure to comply with such notices is a criminal offence.

Where enacted the States’ Privacy Acts are usually modelled on the ACT Health Records (Privacy and Access Act 1997). Please refer to:

www.privacy.gov.au

In the event of any conflict between the provisions of the Privacy Act Commonwealth and the States’ Privacy Acts, the provisions of the Commonwealth Act will take precedence and to the extent of the inconsistency. The relevant provisions of the states’ Act will not have effect.  In many respects the states Act may overlap and duplicate the Commonwealth legislation.

DISCLAIMER:

It is essential that each ARM member obtain a copy of the state’s privacy act in which they reside or practise.

The information presented is not a legal document.  The information is given in good faith as a summary, however the ARM, its Committees or Administration staff cannot be held legally responsible if you do not obtain and follow the relevant Privacy Policy or Privacy Act in the State or Territory in which you reside.
 

HEALTH CARE COMPLAINTS COMMISSION

HANDLING COMPLAINTS

Information for Unregistered Health Practitioners

General principles

Timeliness
Respond to complaints as soon as possible, even if it is just to explain the process.

Give a commitment to a certain timeframe and stick to it. Keep the complainant informed and if there is a delay and explain the reasons for this.

Address all aspects
Provide a full response that addresses the important issues and shows the complainant that the complaint has been taken seriously.

Acknowledge areas of disagreement, or varying accounts without dismissing what the complainant has said.

Try not to be defensive
Acknowledge the distress of the complainant.

Acknowledge any errors that did occur and apologies, if appropriate. In any event be sympathetic.

Try to understand the situation from the complainant's perspective. Find out what would resolve the matter for them, for example a written response, a phone discussion, changes in policy or procedure, or a meeting.

Avoid official or technical language, jargon and clichés. Consider the cultural background and the use of interpreters.

Lessons learned
Where there has been an error, outline what went wrong, how it happened, what is being done to stop it happening again and that you are sorry that it happened.

When a complaint is lodged with the Health Care Complaints Commission

The Health Care Complaints Commission is an independent body dealing with complaints about health service providers in NSW.

This includes complaints about unregistered practitioners, such as acupuncturists, naturopaths or masseurs.

What is an unregistered practitioner?
An unregistered practitioner is any health practitioner, who is not required to be registered under a health registration Act (for example the Medical Practice Act), or who provides services that are unrelated to their registration.

What is the legislative framework for dealing with complaints?
The key features of legislation regarding complaints against unregistered health practitioners are:
 

• Code of Conduct for unregistered health service providers that came into effect on 1 August 2008.
• The Health Care Complaints Commission's power to deal with and investigate complaints about an unregistered health service provider breaching the code of conduct.
• The Commission's powers to take action against unregistered health practitioners, including issuing prohibition orders, is an offence for an unregistered It health service provider to continue to provide a health service in breach of a prohibition order.
• It is an offence for an unregistered health service provider to provide a health service in breach of a prohibition order.
• It is an offence for a deregistered health practitioner to provide health services in breach of an order of the relevant Tribunal or board.
• Any health practitioner who has been deregistered from a profession and who continues to offer a health service must inform clients about that deregistration before commencing to provide that health service.

Code of Conduct
A code of conduct for unregistered health practitioners came into effect on 1 August 2008.
The intention of the code is to set out the minimum practice and ethical standards with which unregistered health service providers are required to comply.

The code of conduct informs consumers what they can expect from practitioners and the mechanisms by which they may complain about the conduct of, or services provided by, an unregistered health service provider.

A full copy of the code is printed in the centre pages of the current Journal – to remove and use for display in your work place

The key aspects of the code are:

• Health practitioners must provide health services in safe and ethical manner.
• Health practitioners diagnosed with an infectious medical condition must ensure that he or she practices in a manner that does not put clients at risk.
• Health practitioners must not make claims to cure certain serious illnesses.
• Health practitioners must adopt standard precautions for infection control.
• Health practitioners must not dissuade clients from seeking or continuing with treatment by a registered medical practitioner and must accept the rights of their clients to make informed choices in relation to their health care.
• Health practitioners must not practice under the influence of alcohol or drugs.
• Health practitioners must not practice with certain physical or mental conditions.
• Health practitioners must not financially exploit clients.
• Health practitioners are required to have an adequate clinical basis for treatments.
• Health practitioners must not misinform their clients.
• Health practitioners must not engage in a sexual or improper personal relationship with a client.
• Health practitioners must comply with relevant privacy laws.
• Health practitioners must keep appropriate records.
• Health practitioners must keep appropriate insurance.
• Health practitioners must display code and other information (with some exceptions).

Powers of the Commission

The Commission has the power to: 

• Issue an order prohibiting the person from providing health services for a period of time
• Issue an order placing conditions on the provision of health services provide a warning to the public about the practitioner and his or her services.

To do so, the Commission must find that the provider has: 

• Breached the code of conduct; or
• Been convicted of an offence under Part 2A of the Public Health Act; or
• Been convicted of an offence under the Fair Trading Act 1987 (NSW) or the Trade Practices Act 1974 (Cth) relating to the provision of health care services.

Stages in the complaints process

When dealing with complaints about unregistered health practitioners the Commission will generally take the following steps:

1. Commission receives complaint
When the Commission receives a complaint, it will contact the complainant to clarify the issues; notify the provider and seek their response to the complaint.

2. Assessment
When assessing a complaint the Commission may obtain health records to assist the assessment of clinical issues; and may seek advice from independent experts in the area.

The Commission assesses all relevant information, including the complaint, any response from the provider, health records and any expert advice.

At the end of the assessment, the Commission may:

Refer to another body
In some cases, it is appropriate to refer a complaint to another body to be dealt with by them. This may include referral to a body such as the Therapeutic Good Administration or the Office of Fair Trading to consider taking appropriate action.

Refer to assisted resolution
Often a complaint may be resolved with the assistance of a Resolution Officer. Participation in assisted resolution is voluntary.

Refer to conciliation
Some complaints are suitable for conciliation and are referred to the Health Conciliation Registry. The Registry maintains a panel of independent expert conciliators who can facilitate a meeting of the parties to the complaint and guide them in finding a resolution. Conciliation is a voluntary and confidential process.

Discontinue
The Commission can discontinue dealing with a complaint for many reasons including the age of the matter or that it might be better dealt with by some alternative means of redress.

Investigate
The Commission refers complaints about individual practitioners for formal investigation where the complaint

• raises a significant issue of public health
• evidence of a breach of the code of conduct.

3. Investigation
The purpose of an investigation is to obtain information so that the Commission can determine the most appropriate action (if any) to take. The focus of investigations is on the protection of public health and safety.

At the end of an investigation the Commission may:

Terminate
That is to take no further action. This involves cases where the investigation found no evidence of inappropriate conduct, care or treatment.

Refer matter to Director of Public Prosecutions
The Commission may refer the matter to the Director of Public Prosecutions for the consideration of criminal charges.

Make comments
The Commission will make comments to a health practitioner where poor care or treatment was provided, but there is insufficient evidence to justify placing conditions on the practitioner, making a prohibition order, or issuing a public warning.

Issue a public warning
If the Commission finds that that the health practitioner has breached the code of conduct, or has been convicted of a relevant offence, and is of the opinion that the practitioner poses a substantial risk to the health of members of the public, the Commission may issue a public warning.

This allows the Commission to quickly and effectively warn the public about unregistered health service providers who provide services that are a risk to the public.

Issue a prohibition order placing conditions
If the Commission finds that the health practitioner has breached the code of conduct, or has been convicted of a relevant offence, and is of the opinion that the practitioner poses a substantial risk to the health of members of the public, the Commission can issue a prohibition order that places conditions on the provision of health services.

The power to limit a prohibition to a particular type of health service allows the Commission to take action to protect the public from those aspects of the person's practice that are of particular concern or danger to the public whilst allowing the person to continue to practice in areas that do not present a risk.

The unregistered practitioner must advise potential patients of the provisions of the prohibition order before treating them. A breach of the order is a criminal offence.

Issue a blanket prohibition order
The final option open to the Commission if it finds that that the health practitioner has breached the code of conduct, or has been convicted of a relevant offence, and is of the opinion that the practitioner poses a substantial risk to the health of members of the public, is the issuing of a prohibition order against an unregistered health practitioner.

The power to impose a blanket prohibition on a person providing health services allows the Health Care Complaints Commission to ensure that unregistered health service providers who have practiced in a highly unethical or dangerous fashion are prohibited from providing future health services to the public.

Right to appeal
The practitioner has the right to appeal against the Commission's decision. The appeal has to be made to the Administrative Decisions Tribunal within 28 days from the date of the Commission's decision.

COMMNICATION WITH THE HEALTH SERVICE PROVIDER

In dealing with a complaint against an unregistered health practitioner, the Commission is obliged to communicate with the practitioner during the handling of the complaint against them.

The key steps where the Commission will usually communicate or notify a practitioner are:

• On receipt of the complaint
• After an assessment decision has been made
• In the closing stages of the investigation the Commission must notify the practitioner that the Commission is proposing to either:

1.    Make comments to the practitioner
2.    Issue a public warning
3.    Place conditions on the practitioner
4.    Issue a prohibition order

This allows the practitioner to make a submission in relation to the proposed action.
After the receipt of the practitioners submission, if the Commission decides to place conditions, or issue a public warning or prohibition order, the Commission will provide the practitioner with a statement of the decision.
Communication with other parties
In addition to communicating with the practitioner, the Commission is obliged to notify an employer when it decides to investigate a practitioner.

More information
For more information about the Commission, please visit the website www.hccc.nsw.gov.au.

To access the legislation and the notice to display, please use the following link
http://www.health.nsw.gov.au/aboutus/legal/amendreg2008.asp

Contact the Commission

Office address
Level 13, 323 Castlereagh Street, Sydney NSW 2000

Hours of business
9.00am to 5.00pm Monday to Friday

Postal address
Locked Mail Bag 18 Strawberry Hills, NSW 2012 or
DX11617 SYDNEY DOWNTOWN

Telephone:  (02) 9219 7444
Toll Free in NSW: 1800 043 159
Fax:  (02) 9281 4585