In this edition:
Learn more about Russell Kennedy's expertise in the Health sector here.
Changes to the Andrews’ Government’s “No Jab, No Play” laws will make it harder for children to avoid being immunised.
The changes will mean that immunisation history statements from the Australian Immunisation Register will be the only documents that are sufficient to demonstrate a ‘medical reason’ to avoid immunisation. Until now, letters from doctors could excuse children in Kindergartens and child care centres from being immunised.
Jenny Mikakos, the Victorian Minister for Families and Children, has cited the reason for the new legislation being “in response to a very small group of dodgy doctors who are putting the community’s health and safety at risk, who have been providing letters for parents with blanket exemptions, claiming there is a medical reason for that child not to be immunised”.
Changes to the accepted documentation to exempt children from immunisations will also assist early childhood learning services, who will now only have to deal with one set of documents for each child.
Since the introduction of the “No Jab No Play” laws two years’ ago, immunisation rates in Victoria have increased with Victoria now having a 95% immunisation rate for five-year-old children.
Read more about the changes to the legislation here.
The Office of the Australian Information Commissioner (OAIC) has announced that the Australian Government Agencies Privacy Code has been registered on the Codes Register and will come into force on 1 July 2018.
In light of the broad requirements under the Australia Privacy Principle (APP) 1.2, which requires that entitles implement practices and procedures to reasonably comply with the APPs generally, the Code sets out specific requirements and key practical steps that Agencies must implement in order to comply with APP 1.2. Such requirements include having a privacy management plan, having a designated Privacy Officer and Privacy Champion at all times, conducting and publishing privacy impact assessments, ensuring appropriate privacy education and training for staff, and regularly reviewing internal privacy processes.
The introduction of the code is said to foster a higher standard of personal information management across all Australian Government Agencies. It is expected that the code will enhance existing privacy capabilities within Agencies and build greater transparency in information handling practices.
The OAIC has also launched a privacy eLearning program and is developing further training resources for Privacy Officers. It also suggests Agencies should sign up to its Privacy Professionals’ Network to receive notifications on developments in code resources and events.
The Government Agencies Privacy Code can be accessed here.
In Kemp v Medical Board of Australia  VSC 691, the Supreme Court of Victoria has found that physicians’ privilege extends to professional regulation matters held before the Victorian Civil and Administrative Tribunal ("Tribunal").
Physician’s privilege is a legislative doctrine which prohibits a physician or surgeon from divulging information in a civil suit, action or proceeding obtained in attending the patient which is necessary to enable the physician or surgeon to prescribe or act for the patient.
The matter before the Supreme Court concerned a doctor who refused to disclose his patients’ medical records on the basis that they had not consented to the disclosure, despite the Tribunal ordering the records be produced.
The Court determined that a doctor cannot be compelled to disclose medical records, even in a proceeding before the Tribunal, without the express or implied consent of the patient to whom they relate.
This case will likely impact other regulatory matters concerning patient records and prescribing practices.
Read the full judgement here.
The Australian Health Practitioners Regulation Agency and the Australian Sports Anti-Doping Authority have announced a memorandum of understanding to enhance cooperation in investigative activities. While both organisations have significantly different roles, those roles align in respect of performance enhancing drugs prescribed by health practitioners to athletes without a genuine therapeutic need, thereby causing a risk to public health and safety.
The MOU will help to ensure the public is protected against practitioners who fail to meet their professional obligations.
Read the AHPRA media release here.
Audits by the Fair Work Ombudsman (“FWO”) have revealed that many businesses operating in the health sector are failing to comply with workplace laws.
The FWO conducted 696 audits of business that included GPs, physiotherapy services, dental services and retirement villages. FWO inspectors found that 25% of businesses audited failed to pay staff their correct entitlements and 14% breached record keeping payslip requirements under the Fair Work Act 2009 (Cth) and Fair Work Regulations 2009 (Cth). The FWO issued 16 infringement notices, 12 formal cautions, 1 compliance notice and recovered more than $109,295.
Employers in the health sector can protect themselves from financial penalties, court action and reputational damage by ensuring they understand and comply with relevant workplace laws. Managers and other HR personnel need to be aware they may be personally liable for their employer’s contravention of workplace laws. This is particularly important given the recent increases to penalties regarding underpayments and record keeping. Russell Kennedy’s Workplace Relations, Employment and Safety Team have published an article about these increased penalties.
Employees in the health sector are likely to be covered by a modern award which sets out the terms and conditions of their employment. Employers in the health sector may find interpreting and understanding their obligations under the award difficult. According to a recent article, a common challenge for employers in the health sector is knowing the correct wages to pay employees under a relevant award, particularly when employees are working outside of their ordinary working hours and may be entitled to overtime and penalty rates.
Please contact Russell Kennedy’s Workplace Relations, Employment and Safety Team for advice on modern awards and other obligations under the Fair Work Act.