Nurses and The Law 2019 QNMU

Nurses
t h e Law
and
5 th EDITION
Contents
CHAPTER 8:
How to use this book 3 120
CH
08 Being safe at work and
workers’ compensation
CHAPTER 1:
CH
01 Members rights to
representation
4 CHAPTER 9:
131
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09 Privacy and the right
CHAPTER 2: to information
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02 The Australian legal
system
9
CHAPTER 10:
143
CH
CHAPTER 3: 10 Confidentiality
CH matters
03 National registration
of nurses and
17
midwives
CHAPTER 4:
Information in a hurry 146
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04 Professional practice
issues
50
CH CHAPTER 5:
CPD 149
05 Mandatory reporting 78
CH CHAPTER 6: Bibliography 150

06 Employment issues 93
CH CHAPTER 7:
07 Your role as a witness 112 Contact us 153
Disclaimer: Every effort has been made to ensure the information in this handbook is accurate for the state of Queensland as at the time of review.
The handbook is not intended as a legal textbook and should not be relied upon as legal advice. It is intended as a general guide only. Members of the
QNMU who are seeking advice in relation to work or professional issues should contact QNMU’s Member Connect on 07 3099 3210 or 1800 177 272
or submit a Member Request for Representation form which can be found in the member section of the QNMU website. If you are a member of the
QNMU and your legal matter relates to issues outside of work (e.g. making a Will) then please submit a Legal Plus request form.
Contributors: The QNMU would like to thank the following people who contributed to developing this publication: Beth Mohle, Linda Lavarch, Judy
Simpson, Luke Forsyth, Jamie Shepherd, James Gilbert, Vonnie Semple, Katie Rowsell, Deidre Morrow, Linda Brady and Melissa Campbell.
NURSES AND THE LAW 5th EDITION 1

Foreword
Welcome to the 5th edition of Nurses and the Law.

This publication is designed to give you an overview of the
Australian legal system as it relates to your work.
As a practising nurse or midwife you may be reasonably aware of
the laws and professional guidelines that govern what you do in your
workplace, but even with that knowledge you may still find yourself in
a situation where you may not know what to do or who to contact.
This helpful guide gives you information about what to do in those
circumstances.
Beth Mohle
It also explains how the law will operate in different situations,
which is particularly important if there is the potential for professional
misconduct or criminal charges to be laid.
In this year’s Nurses and the Law we have added a chapter on
confidentiality matters, with special reference to your obligations
around social media.
We have also expanded Chapter 6 Employment Issues to include
more information about freedom of association and adverse action,
which refers to your right to be part of a union.
Other content has been updated to reflect legislative changes and Sandra Eales
reforms implemented since the last edition of Nurses and the Law
was published in 2014.
As always, we have included a CPD reflective exercise at the back
of this book to help you meet the CPD hours required as part of your
registration.
The QNMU is committed to supporting you and your profession,
and this book, designed as a free resource exclusive to members like
you, is part of that commitment.
Whether you work in the public health system, private hospitals,
aged care or community health, this handbook is for you.
We hope you enjoy Nurses and the Law 5th Edition.
Beth Mohle Sandra Eales

Secretary Assistant Secretary
2 NURSES AND THE LAW 5th EDITION

How to use
this book
T his book is designed to be a practical

resource for working nurses and midwives.
CPD resource material
One of the best uses of this publication is
It can be used as a go-to guide when you as a resource for professional growth and
need answers to specific legal queries, or as a development.
professional development tool. By reading and reflecting on what you
have read, you can use this publication to
Reference guide accumulate CPD hours for your AHPRA
Nurses and the Law is set out in an easy registration.
chapter-by-chapter fashion to enable you to
find what you are looking for fast. There are a number of ways you can reflect
on your reading and its implications for your
While we have taken every effort to ensure professional practice, but if you would like
the accuracy and currency of the information some guidance, turn to our CPD information
in this book at the time of going to print, it is page on page 149.
important to note that it is a general guide only
and should not be relied upon as legal advice.
If you are a QNMU member and need

legal or professional advice about a
workplace issue, we strongly urge you
to contact QNMU’s Member Connect
on 07 3099 3210 or 1800 177 273
or submit a Member Request for
Representation form at
www.qnmu.org.au/rfr

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01
Members rights to
representation
General information – legal Regulatory Authority (Workers’

As part of QNMU membership members Compensation Regulator) reviews,
are assured of comprehensive industrial, legal Industrial Magistrates Court, Queensland
and professional representation in relation to Industrial Relations Commission,
work-related matters. Queensland Industrial Court
These include: ■■ those convened by OHO/AHPRA/NMBA

for competency, conduct and health
■■ professional matters reported to the Office
complaints.
of the Health Ombudsman (OHO) and
referred to Australian Health Practitioner ■■ NMBA disciplinary matters in the Queensland
Regulation Agency (AHPRA)/Nursing and Civil and Administrative Tribunal (QCAT)
Midwifery Board of Australia (NMBA) ■■ appeals against decisions of the NMBA to
■■ WorkCover issues the QCAT
■■ Coronial Inquests ■■ Coronial Inquests—when the member is

required to give a statement or is summoned
■■ other inquiries.
■■ Queensland Crime and Corruption
The QNMU may provide representation
Commission
where appropriate in the following courts and
tribunals: ■■ Anti-Discrimination Commission
Queensland complaints and QIRC for work
■■ state and federal industrial relations
related complaints of alleged unlawful
commissions/courts
discrimination after they have been
■■ Magistrates’ courts in non-criminal matters investigated and referred to the QIRC
■■ those relevant to workers’ compensation by the Anti-Discrimination Commission
matters including Medical Assessment Queensland (ADCQ), and the Australian
Tribunals, The Workers’ Compensation Human Rights Commission

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01
■■ specially constituted commissions of The QNMU will not seek reimbursement from
inquiry, for example the Barrett Adolescent the member if costs are not recovered in the
Centre Commission of Inquiry (2015/16). proceedings.
Based on the QNMU’s assessment of your
For more details refer to the QNMU
matter, representation may be provided by
Member representation policy on the
either a QNMU official (e.g. an Organiser,
QNMU website at www.qnmu.org.au/
Servicing Organiser, Servicing Industrial
memberrepresentation
Officer, Industrial Officer or Professional
Officer) or by external lawyers from the QNMU
Members with work-related matters should
panel of lawyers.
contact Member Connect or submit a Member
In some proceedings costs can be awarded. Request for Representation online.
In these proceedings, the QNMU will enter
into an agreement with the member so that Members are reminded that they
if a member is successful in recovering costs should contact the QNMU as soon
from the proceedings the QNMU will seek as advice is required. Do not delay in
reimbursement from the member for any costs seeking advice.
paid by the QNMU on the member’s behalf (up Statements pertaining to issues of a
to a maximum of the amount ordered by the legal nature should not be submitted
court or tribunal). until you have contacted and/
In some proceedings, a costs order or received prior advice from the
may be made against a member. In these QNMU.
circumstances, the member will be solely
responsible to pay the costs of the other side.
Members with work-related

matters should contact
Member Connect or submit
a Member Request for
Representation online.

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01 Members rights to representation
OHO/AHPRA/NMBA matters WorkCover claims

We know there are few things more If you have suffered an injury at work,
distressing in your professional life than the QNMU can provide you with assistance
to have a complaint made against you to in applying for workers’ compensation,
the regulators including, the Nursing and appealing a Workers’ Compensation
Midwifery Board of Australia (NMBA). Regulator decision to the Queensland
Financial members* of the QNMU have access Industrial Relations Commission and
to immediate and expert legal assistance everything to do with the statutory claims
from lawyers who specialise in professional process.
registration, conduct and discipline law.
If you need advice on your workers
The QNMU retains the services of lawyers compensation claim, complete an online
who have expertise in all matters related to Member Request for Representation form.
the professional registration of nurses and
The QNMU will provide legal representation
midwives such as:
for workers’ compensation appeals subject
■■ notifications (complaints) to the OHO / to receiving legal advice confirming the likely
AHPRA/ NMBA success of such an action or appeal.
■■ problems with applications for registration,
Assistance for applications for the
renewal and re-entry
initial review of a Workers’ Compensation
■■ professional misconduct charges, including Regulator or other insurer’s decision will be
hearings in the Queensland Civil and
assessed by the QNMU and provided where
Administrative Tribunal (QCAT)
appropriate.
■■ NMBA investigations
Workers’ Compensation legislation
■■ appeals to QCAT against NMBA decisions.
timeframes make it extremely important that
Simply complete a Member Request for you seek advice as soon as possible if you
Representation form. sustain an injury at work.
Employment matters It is also vitally important that if you believe

you have suffered a psychological injury at
The QNMU employs officers with extensive
work you seek advice as soon as possible.
experience representing members in all
matters related to their employment. Psychological injury claims are the most
If you need advice and representation in difficult claims to get WorkCover to accept.
relation to employment matters, such as Early legal advice can mean the difference
disciplinary action, termination, discrimination, between your claim being accepted or
grievances, wage claims or contract reviews, rejected.
contact Member Connect or complete an online
Member Request for Representation form. Visit www.qnmu.org.au/rfr to
access the Member Request for
* Conditions apply for new members with pre-existing Representation Form.
notifications

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QNMU LegalPlus free legal service QNMU LegalPlus gives financial members
– for your personal and family legal access to expert lawyers in the areas of:
needs ■■ personal injury law including:
QNMU LegalPlus is a benefit of QNMU ◆◆ non-work related injury claims
membership, providing financial QNMU
◆◆ motor vehicle claims
members and their immediate family with
access to a free initial consultation and ◆◆ public and product liability claims
discounted legal services. ◆◆ medical negligence claims
◆◆ asbestos and dust disease claims
QNMU LegalPlus provides financial members
and immediate family members with: ◆◆ disability insurance and superannuation
claims (non-work related)
■■ one free, initial consultation# with a lawyer
to provide advice on a legal issue; ◆◆ acquired/traumatic brain injury
■■ a free standard will service; ■■ family law, including:

◆◆ separation
■■ discounted legal fees should the member
retain the firm to represent them if their ◆◆ divorce
legal issue cannot be resolved in the initial ◆◆ parenting matters
free consultation^. ◆◆ property settlement
# A reading fee may be charged in circumstances where significant amounts of documentation are required to be reviewed prior to the
consultation.
^ The QNMU does not pay for matters referred to QNMU Legal Plus firms. All cost and expenses incurred by members who engage a
QNMU LegalPlus firm must be met by the member in accordance with the terms of the client agreement between the QNMU LegalPlus
and the member.

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01 Members rights to representation
◆◆ mediation ◆◆ estate planning;

◆◆ financial agreements ◆◆ family provision applications
◆◆ same-sex relationships ■■ criminal law;
◆◆ domestic violence
■■ property law, including house/unit sales
◆◆ surrogacy and purchases;
◆◆ child support
■■ immigration law.
◆◆ consent orders
◆◆ de facto law How do I access QNMU LegalPlus?
■■ wills and estate matters, including: If you need legal advice from QNMU LegalPlus
◆◆ estate administration – applications you should complete the QNMU LegalPlus
for probate, letters of administration, Referral online from the QNMU website.
transmission of title applications;
Visit www.qnmu.org.au/legalplus to
◆◆ advising on and drafting of wills,
access the QNMU LegalPlus Referral
enduring powers of attorney, powers of
Form.
attorney, advanced health directives;

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02
The Australian
Legal System
W e all operate and function within the

Australian legal system. Every aspect
of our daily lives is in some way regulated or
Sources of law
Common Law
The Australian legal system is based on
touched by the law. This is particularly the the English legal system. It has two principal
case as regulated health care professionals. sources of law. The first of these is known as
The information contained in this book the ‘common law.’ It is the law derived from
aims to give you a brief overview of the more the traditional law of England as developed by
common legal issues that you will confront judges in the courts of Australia, England and
working as a nurse, midwife or assistant-in- other countries with similar, ‘common law’ legal
nursing/personal carer. systems.
In the following paragraphs we give a short The way judges apply the law in courts is
overview of some of the key components of that in any given matter they consider any
the system. In particular we will touch on the previous decisions of courts, especially higher
following: courts, and decide cases in the same way
unless the cases are inconsistent with a higher
■■ the sources of law in the Australian legal court decision or wrong at law.
system
The courts, over time, develop legal
■■ the differences between ‘civil’ and ‘criminal’ principles which are applicable to particular
law legal situations and these principles are meant
■■ the courts and tribunals to be applied consistently from case to case.
This is known as the doctrine of precedent.
■■ the differences between federal and state
law Over many years the courts have decided
cases based on all sorts of different facts.
■■ the role of lawyers
Judges will seek to find a previous case with
■■ alternative dispute resolution. facts as close as possible to the one before

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02 The Australian Legal System
them to guide them in deciding the case in the For example, s.51(xxxv.) of the Constitution
same way. allows the Federal Government to make
Where the facts of the current case don’t laws for “conciliation and arbitration for
fit any of the previous cases that have been the prevention and settlement of industrial
decided, the judge will decide the current matter disputes extending beyond the limits of any
as consistently as possible with the previous one State”. This power is the foundation for
cases, and established legal principles, thus much of Australia’s unique and innovative
continuing to expand the common law. industrial relation systems.
Statute Law The states

Federal The states are not restricted by a list of
The second principal source of law in the powers and can legislate generally in all areas
Australian legal system is law made by the where the federal government does not have
federal, state and territory parliaments. a specific constitutional power.
The federal government has the power The laws made by state parliaments and
to legislate in relation to ‘heads’ of power the Federal Government are called ‘legislation’
contained in the Australian Constitution, or ‘statutory law’ and are made up of Acts of
largely in Part V of the Constitution. parliament and regulations.

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The differences between federal and If the federal government and the state
state law government make a law about the same
As you would expect federal laws are made thing, then the federal law overrules the state
by the federal parliament and state law by the law if there is any inconsistency between
state parliament. The federal parliament was the two laws—provided the federal law is
established in 1901 when the Commonwealth constitutionally valid.
of Australia made its first tentative steps away Parliament law versus common law
from British rule. It was established to operate Law made by parliaments overrides
within a set of rules which are contained in the the common law where the common law
Australian Constitution. is inconsistent with the intention of the
The constitution sets out what the powers parliament expressed in legislation.
of the federal parliament are and the federal Therefore the courts have to look at what
parliament can only make laws within those the legislation says, and follow that, before
powers. State governments generally can referring to the common law. This is because
make laws about anything else. our legal system, existing as it does in a

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democracy, vests the ultimate law-making When the courts are considering cases,
power in our elected representatives. some different rules apply for criminal and
civil cases. For example, in both civil and
Before an Act becomes law it must be
criminal cases the person taking the case to
passed by the parliament. While it is being
court (the plaintiff in civil cases, the prosecutor
debated by the parliament it is called a ‘Bill’
in criminal cases) has the burden of proving
and it only becomes an ‘Act’ when it is passed.
the case.
Once passed, other rules may be made to
assist how the Act is used or administered. This is called the ‘onus of proof’. In criminal
These are called subordinate legislation and matters, the prosecutor can discharge this
the most common forms are ‘regulations’ and onus by establishing the facts that support
‘statutory instruments’. a criminal offence. The standard of proof
required in a criminal matter is ‘beyond
The courts also have a role in the
reasonable doubt’.
interpretation of legislation. Sometimes
legislation may have a contentious meaning, or A good way of explaining this standard is
the effect or operation of the legislation may contained in the Supreme and District Court
be disputed between contesting parties in a Benchbook which references the direction
case. proposed in Green v The Queen (1971) 126 CLR
28 at 33:
The courts, either by making a ‘declaration’
at the request of a person as to how the
legislation should be interpreted, or in
judgement in a case, will interpret the
legislation. The decision constitutes common
law. It can be overridden by the parliament
enacting legislation.
The differences between civil and

criminal law
There are two broad branches of the law in
our legal system; ‘civil law’ and ‘criminal law’.
One helpful way to think of civil law is as a
‘sorting out’ of disagreements between people
that they can’t resolve on their own.
The disagreements could be about property,
for example a dispute over a will, or they could
be personal, for example a personal injury
claim or unfair dismissal.
Criminal law on the other hand is about
rules of behaviour and the consequences of
breaking those rules (i.e. punishment).

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A reasonable doubt is such a doubt as Other courts include the Federal Court and
you, the jury, consider to be reasonable the Federal Circuit Court, and in Queensland
on a consideration of the evidence. It the Court of Appeal, the Supreme Court, the
is therefore for you, and each of you, District Court and the Magistrates Court.
to say whether you have a doubt you Some specialist courts include the Coroners
consider reasonable. If at the end of your Court, the Queensland Industrial Court, and
deliberations, you, as reasonable persons, the Family Court of Australia.
have such a doubt about the guilt of the
In addition to the courts a number of
defendant, the charge has not been proved
tribunals exist that deal with particular
beyond reasonable doubt.
matters. These include the Federal
However, the standard of proof in civil Administrative Appeals Tribunal, and in
cases is lower and is generally referred to Queensland, the Queensland Civil and
as the ‘balance of probabilities’ test. The Administrative Tribunal (QCAT), which deals
person trying to prove a fact only needs to with nursing and midwifery matters such as
convince the court that it is more likely than disciplinary action and appeals of decisions of
not that the fact is true (see Briginshaw v the Nursing and Midwifery Board of Australia.
Briginshaw (1938) 60 CLR 336).
Alternative dispute resolution
Courts and tribunals Alternative dispute resolution (ADR) is a
Australia has a hierarchy of courts and term given to a variety of processes utilised
tribunals that administer the law. These courts for resolving civil matters with the objective of
and tribunals generally deal with either civil avoiding the expense and time of a full trial.
matters or criminal matters.
Many specialist tribunals only determine
Some courts and tribunals have become matters as a last resort where ADR has failed.
quite specialised while many are split along Many courts also have the capacity to refer
state and federal lines and deal with state and matters to an ADR process to see if the matter
federal laws respectively. can be resolved without going to trial.
Courts and tribunals can only deal with For example, in unfair dismissal matters and
matters within the limits of their authority or discrimination complaints, the first step in the
jurisdiction. process is to attend a conciliation conference.
If someone involved in a case thinks a court The conciliation conference is a without
or tribunal has acted outside their jurisdiction, prejudice, or confidential, meeting between the
or has made an incorrect decision of some parties moderated by a conciliator, with the
kind, then they can attempt to challenge that objective of seeing if the parties can resolve
decision in a higher court through a judicial the controversy between them without the
review or appeal. necessity of trial. Courts frequently order that
In Australia the highest court is the High the parties engage in mediation.
Court of Australia. Every other court must This is also a confidential process, run under
follow precedents set by the High Court. the guidance of a trained mediator, which also

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has the objective of trying to get the parties You should always seek advice from
to resolve their disagreement prior to a formal the QNMU whenever you are required to
hearing of the dispute in the Court. participate in a coronial process.
Even in the criminal jurisdiction, ADR Negligence
processes are frequently being used, for Common law principles of negligence
example justice mediations. underpin most causes of action for personal
injury. These types of civil claims are described
The role of lawyers as torts because they involve a claim for
Lawyers have two duties. They have a duty damage suffered because of a breach of a
to their client and they have a duty to the duty of care to someone.
court. A lawyer’s primary duty is to the court.
Negligence, in a tortious sense, involves
This is why the Australian legal system relies so
an ‘act’ or ‘omission’ that causes harm in
heavily on lawyers.
circumstances where that harm was reasonably
The lawyer is expected to have explained foreseeable if due care was not taken.
to their client their rights and obligations
For a plaintiff to succeed in an action
according to law and presented their client’s in negligence the requisite standard of
case comprehensively to the court to assist the proof requires the following elements to be
court in determining the matter. established on the balance of probabilities:
The conduct of lawyers is controlled and ■■ that a duty of care was owed by the health
regulated by, in Queensland, the Legal care professional
Professions Act 2007. Complaints in relation
■■ that there was a breach of that duty of care
to the conduct of lawyers are made to the
(that is, the health care professional fell
Legal Services Commission.
below the required standard of care)
Negligence and a Health ■■ that the breach of duty caused or materially
Professional’s Duty of Care contributed to the damage suffered, that
Coronial Inquiries damage being physical, mental or economic
loss and
At some point in their working life most
nurses and midwives will likely have to provide ■■ that the loss or damage suffered was
information in the Coroner’s Court as a result reasonably foreseeable in the circumstances.
of a coronial inquest into the reportable death Criminal negligence, unlike negligence in a
of a person under their care. tortious sense, goes beyond a mere matter of
The Coroner will make recommendations compensation to the plaintiff by the defendant,
based on the information given during the such that the act or omission causing harm
inquest, which may include action taken or not shows such a disregard for the life and safety of
taken by health professionals. There is more others so as to amount to a crime against the
information in relation to this and other related State and conduct deserving of punishment.
topics in Chapter 4 Professional Practice Prosecution for criminal negligence or
Issues and Chapter 7 Your role as a Witness. manslaughter requires the Crown to prove its

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02
case to the criminal standard of proof, beyond Factors that may determine the existence of
reasonable doubt. a duty of care include:
Duty of care ■■ whether the defendant knew or ought

A duty of care is based on there being a to have known of a risk and whether the
relationship of closeness or proximity between plaintiff had the means to appreciate the
the parties. It is generally accepted that a duty existence of the risk to which they were
of care will be owed by a health professional to exposed as a result of the defendant’s
a patient. conduct
Cases decided before the courts over a ■■ where the health professional is able to
number of years have established certain foresee or know of a risk, and the patient
relationships that will be recognised as has no such knowledge and is therefore
relationships where a duty of care will arise. unable to protect themselves.
Some examples of those recognised A duty of care arises between a health

categories of relationships include doctor- carer and a person when the health carer has
patient, solicitor-client, and school-child. accepted that person as their client/patient.

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Duty of care to third parties Compliance with policies and procedures

A duty of care is owed not only to patients and usual practice will generally demonstrate
but also to other persons whose personal reasonable care. But it will not always
wellbeing and property may be harmed by provide a defence where common practice
failure to take reasonable care of a patient. is regarded by the court to be inadequate or
wrong.
Health carers are encouraged by the law to
assist those in urgent need. No health carer Vicarious liability
has been held liable for acting as a Good This is a common law legal principle which
Samaritan. basically means that an employer can be
In Queensland, by operation of section 16 liable for the wrongful acts or omissions of its
of the Law Reform Act 1995 (Qld), liability employees.
does not attach to a medical practitioner, Therefore if an employee wrongfully causes
nurse or other person prescribed under a injury or damage whilst performing their work
regulation for any act done or omitted in the related duties, the victim can sue the employer
course of rendering first aid, medical care or as well as the employee.
assistance to an injured person in emergency
circumstances where the act or omission is It is important that members do not in any
done in good faith, without gross negligence, circumstances agree to waive in whole or in
and performed without fee or reward. part their employer’s vicarious liability.
The Civil Liability Act 2003 (Qld) provides Members should also be aware that
protection from liability at law to those vicarious liability does not provide vicarious
rendering first aid, other aid or other immunity to a nurse or midwife.
assistance given to persons in distress which An employer has a right at common
includes persons injured or at risk of injury, law to seek an indemnity from a negligent
and persons who are suffering, or apparently employee; that is, an employer can sue an
suffering, from an illness. employee to recover damages resulting from
the breach of an employee’s contractual
Position of the defendant
obligation to use reasonable care and skill
The law generally does not have regard to
in the performance of their duties (Lister v
the circumstances of the defendant unless
Romford Ice 1957).
the plaintiff has knowledge of the particular
circumstances of the defendant. It is therefore strongly advised that nurses
and midwives have their own insurance,
For example, in the case where a nurse is
such as the QNMU’s professional indemnity
newly registered, the law gives no special
insurance, which is obtained as one of the
dispensation unless the plaintiff has
benefits of membership of the QNMU.
knowledge of the inadequacies and lack of skill
of the defendant. If ever you are asked to agree to waive in
whole or in part your employer’s vicarious
The gravity of the risk liability, you should always seek advice from
The greater the risk, the more care that the QNMU before you provide a response to
needs to be taken. your employer.

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03
National registration
of nurses and
midwives
T he National Registration and

Accreditation Scheme commenced on 1
July 2010. The scheme provides nationally
Paramedics are due to be included in the
National Registration and Accreditation
Scheme in late 2019.
consistent legislation regulating the
registration and accreditation of 14 health
group professions in Australia.
The 14 health professions covered by the
Scheme are:
■■ chiropractors
■■ dentists
■■ doctors
■■ nurses and midwives
■■ optometrists
■■ osteopaths
■■ pharmacists
■■ physiotherapists
■■ podiatrists
■■ psychologists
■■ medical radiation practitioners
■■ occupational therapists.
■■ Aboriginal and Torres Strait Islander health
practitioners
■■ Chinese medicine practitioners

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03 National registration of nurses and midwives
Health Practitioner Regulation The Ministerial Council (MINCO) is empowered

National Law Act 2009 to give directions to the Australian Health
The law governing the National Registration Practitioner Regulation Agency (AHPRA) about
and Accreditation Scheme is the Health the policies to be applied by AHPRA in exercising
Practitioner Regulation National Law Act its functions under the National Law.
2009 (the ‘National Law’). Australian Health Practitioner Regulation
The Act was passed by the Queensland Agency
Parliament on 3 November 2009. The National The Australian Health Practitioner
Law provides the statutory framework for the Regulation Agency (AHPRA) was established
registration and accreditation scheme for the under the National Law to provide the
regulated health professions which includes following functions:
nursing and midwifery. 1. provide administrative support to the
Since the introduction of the Health National Boards
Ombudsman Act 2013 in Queensland, the 2. develop and administer procedures for
National Law reference is to the Health the purpose of ensuring the efficient and
Practitioner Regulation National Law effective operation of the National Boards,
(Queensland). including the Nursing and Midwifery Board
of Australia (NMBA)
Structure of the national
registration scheme 3. establish procedures for the development
of accreditation standards, registration
Ministerial Council
standards and codes and guidelines
Under the National Law a ministerial council
approved by National Boards for the
has been established whose membership is
purpose of ensuring the National Scheme
made up of the health ministers of each state
operates in accordance with good
and territory and the Commonwealth.
regulatory practice
4. negotiate health agreements concerning
fees payable by health practitioners,
annual budgets of National Boards and the
services to be provided by National Boards
with each of the National Boards
The law governing the 5. establish and administer procedures for
National Registration and receiving and dealing with applications for
registrations
Accreditation Scheme is the
6. notifications against health practitioners in
Health Practitioner Regulation relation to conduct, competency and health
National Law Act 2009 (the 7. keep publicly accessible registers of
‘National Law’). registered health practitioners for each of
the health professions

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03
Pursuant to s.35 of the National Law the

functions of the NMBA include:
a. registering nurses and midwives and, if
necessary, imposing conditions on the
Essentially, AHPRA is the registration of nurses and midwives
body which supports, b. determining the requirements for

registration or endorsement of registration
administratively and
as a nurse or midwife, including any
operationally the NMBA, and arrangements of supervised practice
its state Boards. c. developing or approving standards, codes

and guidelines for nursing and midwifery
(most relevantly, registration standards)
8. keep an up-to-date register of students for
each health profession d. approving accredited programs of
study which provide qualifications for
9. keep an up-to-date register of approved
study programs for each health registration or endorsement in nursing
professional and midwifery
10. provide advice to the Ministerial Council e. assessing the knowledge and clinical
in relation to the administration of the skills of overseas trained applications for
national scheme. registration in nursing and midwifery
AHPRA is required under the National f. negotiating with AHPRA appropriate fees
Law to discharge many of these functions for nursing and midwifery registration
in conjunction with the NMBA. Essentially, g. overseeing the assessment and
AHPRA is the body which supports, investigation of matters about nurses and
administratively and operationally the NMBA, midwives referred to it by AHPRA
and its state Boards.
h. establishing panels to conduct hearings about:
The Nursing and Midwifery Board of
i. health and performance and
Australia
professional standards matters
The Nursing and Midwifery Board of
involving nurses and midwives
Australia (NMBA) was established under the
Health Practitioner Regulation (Administrative ii. health matters in relation to student
Arrangements) Act 2009. nurses and midwives
It is the board for nurses and midwives i. refering disciplinary matters to the
across Australia. Queensland Civil and Administrative
Tribunal or the Health Ombudsman,
The NMBA replaced the former Queensland
Nursing Council (QNC). The NMBA is provided j. overseeing the management of nurses
administrative assistance in the discharge of and midwives and student nurses and
its functions by AHPRA. midwives, including monitoring conditions,

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undertakings and suspensions imposed on Section 52 provides that a person is eligible

the registration of nurses and midwives or for registration as a nurse or midwife if:
students a. they hold a qualification approved by the
k. keeping an up-to-date national register of NMBA
students in the health profession b. the person has completed any period of
l. keeping an up-to-date national register of supervised practice or any examination
nurses and midwives in the profession or assessment required by a registration
standard
m. at the NMBA’s discretion, providing financial
c. the person is a suitable person to hold
or other support for health programs
general registration
for registered nurses and midwives and
student nurses and midwives. d. the person is not disqualified under the
National Law or law of another jurisdiction
Registration requirements under from applying for registration or being
the national scheme registered in nursing and midwifery
Part seven of the National Law deals e. the person meets the registration
with the registration of health practitioners. standards approved by the NMBA.
Section 53 of the National Law provides the The National Law also recognises a number
qualifications for general registration as a of other types of registration including:
nurse or midwife.
a. specialist registration
In order to be qualified for general b. provisional registration, generally to be
registration a person must satisfy the following provided in circumstances where an
criteria: individual is required to complete a period
a. The practitioner must hold an approved of supervised practice required for general
qualification for the health profession. In registration
this respect the NMBA has published a c. limited registration, which may be granted
list of approved qualifications which are in circumstances for post graduate training
available on the NMBA website. or supervised practice, or area of need
b. The person holds a qualification equivalent d. public interest limited registration

to one the NMBA considers acceptable as e. teaching or research
an approved qualification. For example, f. non-practising registration.
applicants for registration who have
Under the national scheme there are two
completed a qualification prior to the
separate registers for nurses and midwives: a
commencement of National Registration
register of nurses and a separate register of
or who have undertaken their nursing
midwives. On the register of nurses there are
and midwifery studies in a foreign
two divisions:
jurisdiction would be able to seek to have
their qualification approved under this a. Registered Nurses (division 1)
provision. b. Enrolled Nurses (division 2).

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f. endorsement for nurse practitioners

registration standard
g. endorsement for scheduled medicines RNs
h. endorsement for scheduled medicines for
midwives registration standard
i. registration standard for midwives with
scheduled medicines endorsement
j. nursing and midwifery endorsement
scheduled medicines registered nurses
registration standard.
All nurses and midwives across Australia
Student registration are required to meet and comply with the
The registration of students studying to standards relevant to their profession in order
become health practitioners is a new feature to be registered.
introduced by the National Scheme.
As of March 2011, all students enrolled in Standards are often reviewed, but
approved nursing or midwifery study programs, those on the NMBA website are
and who were not already registered, were always current. At the time of printing,
included in the National Scheme. the endorsement for scheduled
medicines RN registration standard
The NMBA registers students for the
was being review by the NMBA. QNMU
duration of their study or clinical training,
members can access consultations on
or until they are no longer enrolled in an
the NMBA’s website under ‘News’.
approved program.
Registration standards Criminal history registration standard

The NMBA has developed a number of Under Part 7, Division 6 of the National Law
registration standards which were approved the NMBA is required to undertake a criminal
by the Ministerial Council and came into effect history check of all applicants for registration.
on 1 July 2010. They are: The powers of the Board in relation to
a. criminal history registration standard criminal history checking are essentially very
similar to the obligations previously placed
b. english language skills registration standard
upon applicants for registration or enrolment
c. professional indemnity insurance with the QNC.
The NMBA will obtain a criminal history
d. continuing professional development (‘CPD’) report from CrimTrac, a state or territory
registration standard police service or, in relation to international
e. recency of practice registration standard applicants, a foreign jurisdiction.

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The existence of a criminal history does not has been decriminalised since the health
automatically mean a person is unsuitable for practitioner committed, or allegedly
registration. committed, the offence
In deciding whether a health practitioner’s g. the health practitioner’s behaviour since she
criminal history is relevant to their practice as or he committed, or allegedly committed,
a nurse or midwife the Board considers the the offence
following factors: h. the likelihood of future threat to a patient of
a. the nature and gravity of the offence or the health practitioner
alleged offence and its relevance to health i. any information given by the health
practice practitioner
b. the period of time since the health j. any other matter the NMBA considers
practitioner committed, or allegedly
relevant.
committed, the offence
Criminal history under the National Law
c. whether a finding of guilt or conviction was
includes:
recorded for the offence or a charge for the
offence is still pending 1. every conviction of a person for an offence
and every plea of guilty or finding of guilt by
d. the sentence imposed for the offence
the person for an offence
e. the ages of the health practitioner and
2. every charge made against the person for
of any victim at the time the health
an offence.
practitioner committed, or allegedly
committed, the offence Under the National Law the Criminal
Law (Rehabilitation of Offenders) Act in
f. whether or not the conduct that constituted
Queensland does not apply.
the offence or to which the charge relates
You are likely to be required to disclose a
matter to the NMBA even if no conviction was
recorded.
At the time of renewing their registration
nurses and midwives are also required to
advise the NMBA of any criminal history that
they have not previously disclosed, or which
occurred in the preceding registration year.
This does not include minor traffic or parking
infringements where you pay the fine and the
matter is resolved.
However if you are charged with a driving
offence that requires an appearance in court,
contact QNMU immediately for advice on
whether it needs to be disclosed.

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However the standard has been reviewed by

the NMBA and now requires:
“An applicant for registration as a
registered nurse and/or a registered
midwife who has provided evidence
of completion of five (5) years*(full-
time equivalent) of education taught
The existence of a and assessed in English, in any of
the recognised countries listed in this
criminal history does not registration standard, is considered
to have demonstrated English
automatically mean a language proficiency and has met the
person is unsuitable for requirements of this standard.”
In respect of the type of education required
registration. by the standard the new English Standard
provides:
If you have a criminal history when you “The completion of five (5) years (full-
apply for registration, or during the course time equivalent) education taught and
of a registration year or if you are required assessed in English means five (5) years
pursuant to s.130 of the National Law to full-time equivalent of either:
disclose a ‘relevant event’ (a charge against
■■ tertiary and secondary; or
you, or a guilty plea or finding—see further
information in Chapter 5: Mandatory ■■ tertiary and vocational; or
Reporting) you should contact the QNMU for ■■ combined tertiary, secondary and
assistance with disclosing such matters to the vocational education”
Board. Failure to disclose a relevant event can In the absence of being able to demonstrate
result in the NMBA taking disciplinary action five (5) years fulltime education taught
against you. and assessed in English, applicants must
The NMBA may also conduct audits from undertake a NMBA approved test of English
time to time of registered practitioners which proficiency. Currently the NMBA approved
will usually include a criminal history check. tests are:
a. the International English Language Testing
English language skills registration
standard System (IELTS) Examination Academic
Module with a minimum score of seven in
The NMBA’s English language skills
each of the four bands; listening, reading,
registration standard was a source of
writing and speaking, or
significant controversy upon the introduction
of the National Scheme and made it quite b. completing with grades of A or B each of
difficult for some nurses and midwives to meet the four components of the Occupational
the standard. English Language Test (OET).

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The National Board recognises the following Unfortunately this hardship has not been
countries where the applicant was taught and remedied by the new standard. Despite the
assessed in English at either vocational and exemption in the English Standard which
tertiary or combined secondary, vocational states that “the Board reserves the right to
and/or tertiary education levels: consider and/or grant an exemption … where
■■ Australia there is compelling evidence demonstrating
■■ Canada English language proficiency equivalent to
■■ New Zealand the standard”, the NMBA has inexplicably
■■ Republic of Ireland constrained this exemption to groups of
■■ South Africa applicants, removing its ability to determine
■■ United Kingdom applications on their merit, on a case by case
■■ United State of America basis.
This registration standard does not provide The QNMU can arrange advice or assistance
the NMBA any scope whatsoever to consider for financial members with applications for
other evidence which may indicate that an registration who may have difficulty complying
applicant for registration has suitable English with the English Standard.
language skills to practise in the profession. Professional indemnity insurance
The QNMU believes that nurses and midwives arrangements registration standard
must have sufficient English language skills to Perhaps the most significant change in
safely practise in the profession. the registration requirements for nurses and
midwives brought about by the National
However, the QNMU believes that, for many
Scheme is the National Law’s requirement
reasons, the reliance solely on examinations
that nurses and midwives have in place
aimed to assess the academic ability of
‘appropriate professional indemnity insurance
students applying for study at tertiary
arrangements’ as a requirement of practice.
institutions in Australia, which completely
ignores any evidence of vocational English Section 129 of the National Law provides
language skills, will ultimately disadvantage that a nurse or midwife must not practise in
nurses and contribute further to the nursing the profession unless they have ‘appropriate
and midwifery skill shortage in Australia. professional indemnity insurance arrangements’
in force in relation to their practice.
The English language standard has caused
immense hardship to many nurses and A failure to hold these arrangements,
midwives applying for registration since the although not an offence, could constitute
commencement of the national registration grounds for the NMBA taking action against a
scheme. nurse or midwife.
Many nurses and midwives, who undertook Nurses and midwives are also required to
their secondary education and nursing or declare on their annual renewals that they
midwifery education in English, have been held ‘appropriate professional indemnity
unable to obtain registration because of this insurance arrangements’ in the preceding
standard. registration year.

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A nurse or midwife can be registered with The midwife is also required to comply with
the NMBA without appropriate professional any requirements set out in a code or guideline
indemnity insurance arrangements in place approved by the NMBA in relation to midwives
provided they do not practise until they satisfy practising private midwifery.
the NMBA’s professional indemnity insurance
Other important information
arrangements registration standard.
Like the English standard, there has been
The registration standard applies to significant controversy surrounding the
registered and enrolled nurses, registered professional indemnity insurance registration
nurses endorsed as nurse practitioners, standard.
registered midwives, and registered midwives
The QNMU argued, prior to the
endorsed as midwife practitioners.
commencement of the National Scheme, that it
The registration standard does not apply made a number of assertions that were wrong
to students of nursing and midwifery, nurses at law and were liable to lead nurses and
and midwives who have non-practising midwives into unwittingly breaching s.129 of the
registration, and registered midwives who are National Law.
exempt from the registration standard under
As a consequence of this controversy, the
the National Law.
NMBA released a new professional indemnity
Exempt registered midwives insurance registration standard which
Section 284 of the National Law provides commenced on 10 January 2012.
that midwives practising private midwifery The new PII Standard is significantly
will be exempt from the requirement to hold different to the one introduced at the
appropriate professional indemnity insurance commencement of national registration.
arrangements during a transition period.
Private practice midwifery is defined in the
National Law as practising the midwifery
profession in the course of attending a home
birth, without appropriate professional
indemnity insurance arrangements in force ...a nurse or midwife
and when you are not employed by another
entity. Therefore, this exemption does not must not practise in the
apply to midwives employed by a hospital or
other health service provider. profession unless they have
The midwife must obtain the informed ‘appropriate professional
consent (meaning written consent) that the
woman (to birth) is aware that the midwife indemnity insurance
does not have appropriate professional
indemnity insurance arrangements in place
arrangements’ in force in
and any other information which may be relation to their practice.
required by the NMBA.

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How do I meet the NMBA’s PII

standard?
You must not practise unless
you are covered by appropriate
PII arrangements which cover
your full scope of practice (s.129
National Law).
PII requirements will differ
depending on the type of
practice in which you engage and
according to the particular level of
risk that attaches to such practice.
Your PII must cover you for:
a. civil liability for loss arising
from any negligent act, error or
omission
b. appropriate retroactive cover
for matters arising from prior
practice
The following section addresses questions c. automatic reinstatement and

frequently asked by nurses and midwives d. run-off cover for when you
about their obligations to: cease practice.
1. have professional indemnity insurance The PII standard states that it is
2. meet the PII Standard, and your responsibility to understand
3. comply with the Health Practitioner the nature of the insurance cover
Regulation National Law Act 2009 under which you practice. It is
(National Law). not acceptable to simply rely on
the assurances of others — such
as your employer — that you are
covered.
On your application for renewal,
you are required to confirm to the
NMBA that you are covered by
appropriate PII.
If you are unable to confirm this,
you will not be able to practise
until you have appropriate PII in
place.

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AHPRA may audit your compliance with If I am a nurse operating as an independent

this PII Standard. Failure to be truthful on contractor or sub-contractor, will the QNMU
PII cover me?
your renewal form will make you liable not
only for disciplinary action by the NMBA, but Yes. The QNMU PII obtained as a benefit
also criminal charges for swearing a false of membership will cover you when practicing
declaration. as an independent contractor or sub-
contractor with your own ABN in your own
If you practise without appropriate PII
name only.
insurance, you will have breached the National
Law, making yourself liable for disciplinary Any work carried out in a trading name —
action by the NMBA. registered or unregistered, company, trust
or foundation, partnership, joint venture or
This may result in the NMBA cancelling your
any other business name or entity is excluded
registration.
under the QNMU PII policy.
The QNMU’s PII provided as a benefit of
What does the QNMU’s PII do for me?
membership to financial QNMU members
meets the requirements of the NMBA’s PII The QNMU’s PII is a guarantee to members
Standard. that they are complying with the PII standard.
QNMU PII covers the full scope of practice of
My employer tells me I am completely covered all registered nurses and employed midwives
by their insurance. Is this correct?
practising in Queensland.
The NMBA’s PII standard squarely places
the responsibility for compliance with the PII It contains retroactive cover and run-off
standard upon you. cover, and it has extensions of coverage for
public liability and product liability claims.
It is not enough to rely upon the assurances
of others that you meet the standard. You The QNMU’s PII is perhaps the best product
must ensure that the PII that you declare to available to nurses and employed midwives in
the NMBA covers your full scope of practice. Australia.
If you are a QNMU member you are fully If you are a QNMU member, you have QNMU
covered, but if you have colleagues who rely comprehensive insurance and you meet the PII
upon your employer for PII cover, please standard.
advise them that they need to check the
employer’s insurance policy to ensure that it The QNMU strongly advises nurses
covers their practice for civil liability, negligent and midwives to hold their own
acts or omissions, retroactive cover, automatic professional indemnity insurance
reinstatement and runoff cover. policy obtained as a benefit of QNMU
membership.
If their employer’s policy does not cover all of
It is the easiest and cheapest way
the above, they will not meet the PII standard
of obtaining comprehensive PII that
and will be liable for disciplinary action by the
meets the PII standard.
NMBA.

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Insurance issues for midwives antenatal and postnatal care to women in

The NMBA has published the Guidelines their care, regardless of the planned location
for Professional Indemnity Insurance of the birth.
Arrangements for Midwives. The exemption is only available if midwives
Aside from setting out the insurance meet the requirements set out in s.284 of the
requirements for midwives generally, this National Law.
sets out the requirements for obtaining an In order to be eligible for the exemption,
exemption under s.284 of the National Law. midwives must meet the following
As stated earlier, private practice midwives requirements:
engaged in home birthing are currently exempt 1. Informed consent must be given by the
from the professional indemnity registration woman who is the client of the midwife who
standard for that aspect of the care. is in private practice. Informed consent is
The exemption under s.284 of the National defined specifically as written consent given
Law does not apply to independent midwives by a woman after she has been given a
in private practice who do not engage in home written statement by a midwife that includes:
birthing. ■■ a statement that appropriate PII
One professional indemnity insurance arrangements will not be in force
scheme available to independent midwives in relation to the midwife’s practice
is subsidised by the federal government and of private midwifery in attending a
offered by Medical Insurance Group Australia, homebirth, and
and has been available to private practice ■■ any other information required by the
midwives since 1 November 2010. Board.
This product enables independent midwives 2. The Board requires that all midwives
to offer Medicare funded care to expectant practise according to the following:
mothers.
■■ Code of Professional Conduct for
However, it is only available to those Midwives in Australia
who can demonstrate that a collaborative
arrangement is in place with a medical ■■ Code of Ethics for Midwives in Australia
practitioner, or that an individual care plan and the National Competency
(for each woman) has been provided to the Standards for the Midwife.
hospital providing obstetric services. Midwives should contact the QNMU for
This exemption from the requirement to advice on this insurance and other insurance
have professional indemnity insurance in s.284 options.
of the National Law is strictly limited to the Continuing professional development
provision of private intrapartum care provided registration standard
in a homebirth setting. The National Law requires health
Midwives working in private practice will practitioners to engage in continuing
still require appropriate insurance to provide professional development. It also requires the

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NMBA to develop a continuing professional by completing only 20 hours of CPD per year,
development registration standard. provided that the 20 hours is relevant to both
The NMBA’s continuing professional professions.
development (CPD) registration standard Registered nurses and midwives who
requires nurses and midwives to participate hold Scheduled Medicine Endorsements
in at least 20 hours of continuing professional while endorsed as Nurse Practitioners must
development per year for each division of complete at least ten hours of education per
nursing and if registered as a midwife. year specifically related to their endorsement.
This means that if you concurrent One hour of active learning equates to one
registration as a RN and an EN, you must hour of CPD.
complete 20 hours of CPD relevant to both Nurses and midwives are encouraged to
Divisions. review this registration standard in detail
If you have dual registration as a nurse and and seek advice from the QNMU if they have
midwife, you must also complete 20 hours of any questions in relation to whether the
CPD for each registration type. CPD activities training that they are undertaking satisfies the
which are relevant to both nursing and registration standards.
midwifery professions may be counted in each Recency of practice registration standard
portfolio of professional development. The National Law requires that nurses and
This means that a person registered on both midwives must have undertaken sufficient
registers can satisfy the registration standard practice to demonstrate competence within

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the previous five year period. Sufficient three (3) years full time experience in
practice can be proved by the following: advanced practice nursing role within the
a. practising within the profession within the past six (6) years from the receipt date of
past five years for a period equivalent to a application with the NMBA
minimum of three months full time ■■ a qualification at a Masters degree level, or
b. successful completion of a program or education equivalent as determined by the
assessment approved by the NMBA NMBA and approved under section 49 of
the National Law, which is included in the
c. successful completion of a supervised NMBA approved list of programs of study
practice experience approved by the NMBA. for endorsement as a nurse practitioner
This standard has caused some problems ■■ compliance with the NMBA’s National
for nurses and midwives returning to the Competency Standards for the Nurse
profession after taking time out to have Practitioner
children.
■■ compliance with the NMBA’s registration
The problem is exacerbated in Queensland standard on continuing professional
by the shortage of accredited re-entry
development.
courses.
Part 7 of the National Law does provide for
Registration standard for endorsement
for scheduled medicines for midwives
the NMBA to grant various types of conditional
The scope of this endorsement under section
registration which theoretically could be used
94 of the National Law applies to a class of
by the NMBA to assist nurses and midwives to
midwives, but not all midwives.
return to practice.
The Registered Midwife Endorsed is qualified
Nurses or midwives who require to prescribe schedule 2, 3, 4 and 8 medicines.
further advice in relation to whether
To be eligible for endorsement for
they satisfy the recency of practice
scheduled medicines under section 94 of
registration standard should contact
the National Law, applicants must be able
the QNMU.
to demonstrate they meet all the following
requirements:
Nurse Practitioner registration standard
■■ current Registered Midwife in Australia with
As an applicant seeking endorsement as a
no restrictions to practice
Nurse Practitioner, the applicant must be able
to demonstrate: ■■ the equivalent of three (3) years full time
initial registration experience as a midwife
■■ general registration as a nurse with no
conditions relating to unsatisfactory ■■ evidence of current competence to provide
professional performance or unprofessional pregnancy, labour, birth and post natal
conduct care, through professional practice review
■■ the required amount of experience in ■■ successful completion of an approved
advanced nursing practice, the equivalent professional practice review program for

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midwives working across the continuum of 1989 (Cwlth), s.52D, to the extent required to
midwifery care practice nursing in a particular area described
■■ 10 additional hours per year of continuing and listed under the relevant Drug Therapy
professional development relating to Protocol, Chief Health Officer standing order or
context of practice, prescribing and health service permit that must be compliant
administration of medicines, diagnostic with Queensland legislation.
investigations, consultation and referral Please note, the Health Drugs and Poisons
■■ successful completion of an approved Bill is currently under review and it is expected
qualification to prescribe scheduled the legislative requirements will change after
medicines required for practice across that this book is published.
continuum of midwifery care in accordance The eligible qualifications for endorsement
with relevant State and Territory legislation. for scheduled medicines, are under an NMBA
Registration standard for endorsement approved program of study published on their
for schedules medicines registered website.
nurses (rural and isolated practice)
Following endorsement the registered nurse
This standard sets out the qualifications is expected to comply with any guidelines
and other requirements that must be met by
on obtaining, supplying and administering
an applicant and endorsed registered nurse,
scheduled medicines, as issued by the NMBA
under section 94 of the National Law, to be
and published in accordance with s.39 of the
qualified to obtain, supply and administer
National Law on the NMBA website.
scheduled 2, 3, 4, and 8 medicines for nursing
practice in a rural and isolated practice area This endorsement also requires 10 additional
within the meaning of the current poisons hours of CPD relating to obtaining, supplying
standard under the Therapeutic Goods Act and administration of scheduled medicines.
The eligible qualifications

for endorsement for
scheduled medicines, are
under an NMBA approved
program of study published
on their website.

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Scheduled medicines endorsed midwife ■■ complete a NMBA midwifery professional

registration standard practice program every three years
An applicant seeking to be identified as across the continuum of midwifery care to
scheduled medicines endorsed midwife under demonstrate continuing competence in the
s. 38(2) of the National Law must be able provision of pregnancy, labour, birth and
to meet all the requirements of the NMBA postnatal care to women and their infants.
including:
Endorsements
■■ current registration as a midwife in
Another change brought about by the
Australia
■■ the equivalent of three (3) years full-time Scheme is the consolidation of nursing and
post-registration experience as a midwife midwifery endorsements.
and evidence of current competence
There was a substantial change in relation
to provide pregnancy, labour, birth and
to endorsements that previously existed in
postnatal care through professional
Queensland and were recognised by the QNC.
practice review
Endorsements in relation to sexual health,
■■ approved qualification, or the ability to gain mental health and immunisation are no longer
such a qualification within an 18 month recognised as individual endorsements which
period to acquire the skills required to can be recorded on the Register.
prescribe scheduled medicines required for
The Ministerial Council has approved three
practice across the continuum of midwifery
endorsements under the National Law. These
care. For example:
endorsements are:
◆◆ an Australian Nursing and Midwifery
1. endorsement for Nurse Practitioners
Accreditation Council (ANMAC)
accredited and NMBA approved 2. endorsement for scheduled medicines RNs
study program to develop midwives’ 3. endorsement for scheduled medicines for
knowledge and skills in prescribing midwives.
medicines or, Nurses who previously held a Rural and
◆◆ an substantially equivalent program. Remote Area Practice endorsements were
granted a scheduled medicines endorsement.
A scheduled medicines endorsed midwife is
required: Prior to the National Law, enrolled nurses
who were qualified to administer medicines
■■ to undertake an additional 10 hours
were know as Endorsed ENs.
of specified continuing professional
development (CPD) a year relating to These ENs are now known as Enrolled
context of practice, prescribing and Nurses on the Division 2 Register as they are
administration of medicines, diagnostic no longer endorsed under the National Law.
investigations, consultation and referral, in Enrolled nurses without a medication
addition to the 20 hours of CPD for general qualification will have a notation on the
registration as a midwife. Register of Practitioners that they do not

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hold a NMBA approved qualification in The objects of the National Law are also
administering medicines. relevant to the NMBA’s use of competency,
health and conduct action powers under the
In Queensland, under changes to the
National Law.
Health (Drugs and Poisons) Regulation 1996,
endorsed nurses who held immunisation Firstly, it is a ‘guiding principle’ under s.3(3)
program and sexual health endorsements (a) that the National Law must operate in a
that were recognised with the Queensland transparent, accountable, efficient, effective
Nursing Council or who have obtained a and fair way.
qualification approved by the chief executive, Secondly, s.3(3)(c) provides that any
are authorised to continue to possess and restrictions on the practice of a nurse or
supply medications under an approved drug midwife, or student nurse or midwife, are
therapy protocol (DTP). to be imposed under the scheme only if it
This authorisation is conditional on the is necessary to ensure health services are
requirement that they supply evidence of provided safely and are of an appropriate
completing an approved course. Queensland quality.
Health has stated that courses previously These objectives govern the NMBA’s use
accredited by the QNC are recognised as of the powers provided to it under Part 8
approved courses. of the National Law in relation to health,
performance and conduct.
Nurses and midwives who require
As discussed earlier one of the major
further advice in relation to these
changes brought about by the national
endorsements should review the
registration process has been the registration
endorsement registration standards
of students.
on the NMBA’s website at
www.nursingmidwiferyboard.gov.au Students are also liable to be subjected to
or contact the QNMU. conduct and health processes by the NMBA
in a limited number of circumstances. For
more information see Chapter 5: Mandatory
Conduct, competency, health and
reporting.
disciplinary matters
Under s.3(2)(a) of the National Law, one Mandatory reporting
of the National Law’s objectives is to provide As discussed in Chapter 5: Mandatory
for the protection of the public by ensuring reporting, the National Law places an
that only nurses and midwives who are obligation upon health practitioners,
suitably trained and qualified to practise in a employers and education institutions to
competent and ethical manner are registered. mandatorily notify AHPRA in relation to certain
This objective forms the basis for the conduct, performance and health issues
powers provided to the NMBA to take action relating to nurses, midwives and students.
against nurses and midwives in relation to These notifications form the basis of the
notifications. powers of the NMBA to take action in relation

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to health, performance and conduct issues Given that the NMBA, together with AHPRA,
concerning nurses and midwives. continue to deal with other disciplinary
Notifications can also be made on a matters under the National Law, it is relevant
voluntary basis. Section 144(1) of the National to outline the powers available under the
Law sets out the basis upon which voluntary National Law as follows.
notifications can be made against nurses, The process
midwives and students. Mandatory and voluntary notifications
Mandatory or voluntary notifications made are made to the Health Ombudsman either
pursuant to the National Law are now made verbally or in writing as a complaint.
as a complaint to the Health Ombudsman. These notifications or complaints must
The Health Ombudsman Act 2013 (Qld) include particulars of the basis upon which
varies how Part 8 of the National Law the mandatory or voluntary notification is
provides for the disciplinary arrangements made.
for nurses and midwives. What powers the If a health service complaint is referred by
Health Ombudsman has and how they may the Health Ombudsman to the NMBA, AHPRA
be exercised, is outlined at the end of this must, within 60 days after receipt, conduct a
chapter. preliminary assessment of the referred matter
It has been QNMU’s experience that the and decide whether it relates to a nurse or
Health Ombudsman manages all serious midwife or student and whether the referred
allegations against Queensland nurses — matter relates to a matter that is a ground for
namely, matters that indicate a nurse has notification (the grounds for notification are
engaged in professional misconduct or where discussed in Chapter 5).
a ground may exist for the suspension or Section 151 of the National Law provides
cancellation of a nurse’s registration. that the NMBA may decide to take no further
Matters relating to performance action in relation to the referred matter if it
(competence) and health impairment are reasonably believes:
usually referred to AHPRA by the Health ■■ the complaint is frivolous, vexatious,
Ombudsman. misconceived or lacking in substance
The National Law in Queensland contains ■■ too long a period of time has lapsed to
a partial exemption to making a mandatory make an investigation practicable
notification.
■■ that, given the person is no longer
If you are providing a health service to a registered, it is not in the public interest to
health practitioner who may have engaged in deal with the complaint
notifiable conduct, you are NOT required to
■■ the NMBA has already dealt with the
make a complaint or notification if you believe
subject matter of the complaint, or
the conduct relates to an impairment that will
not place the public at substantial risk of harm ■■ the complaint has been dealt with
and is not professional misconduct. adequately by another entity.

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Upon receiving a referred matter the NMBA was improperly obtained and the nurse,
must notify the nurse, midwife or student midwife or student’s registration has been
concerned as soon as practicable. cancelled or suspended under the law of
The NMBA must notify the Health another jurisdiction.
Ombudsman as soon as practicable if the Right to make submission
NMBA forms a reasonable belief that a Section 157 of the National Law provides
nurse or midwife has behaved in a way that that immediate action cannot be taken unless
constitutes professional misconduct or that the NMBA provides details of the complaint to
there is another ground for the suspension the nurse, midwife or student.
or cancellation of a nurse or midwife’s
This ‘show cause’ process allows nurses,
registration.
midwives and students an opportunity
Immediate action to provide submissions in relation to the
The National Law provides that the NMBA notification to the NMBA before it makes its
may, in certain circumstances, take immediate decision.
action following receipt of a referred complaint. The period afforded to nurses and midwives
Immediate action is defined in s.155 to in this situation is often very brief and may
include suspension, imposition of a condition, depend on how serious the NMBA considers
accepting an undertaking or accepting the the allegations to be.
surrender of the nurse, midwife or student’s Often only 48 hours are provided for a nurse
registration. or midwife to respond to a proposal by the
The NMBA’s power to take immediate NMBA to take immediate action.
action arises when the NMBA reasonably If the NMBA determines to take immediate
believes that the nurse or midwife’s conduct, action following the consideration of any
performance or health poses a serious risk to submissions from the nurse, midwife or
people and immediate action is necessary to student, they must give notification of their
protect public health and safety. decision to the nurse, midwife or student and
take any further action prescribed under the
In relation to students, the NMBA may take
National Law in relation to the complaint.
immediate action if it reasonably believes that
the student poses a serious risk to people
because they’ve been charged with an offence
punishable by 12 months imprisonment or
more, they have an impairment or they have The National Law provides
contravened a condition on their registration that the NMBA may, in certain
or undertaking, and such immediate action is
necessary to protect public health or safety. circumstances, take immediate
Another basis for the NMBA to take action following receipt of a
immediate action is where evidence exists to referred complaint.
suggest that a nurse or midwife’s registration

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Health and performance Action by the Nursing and

assessments Midwifery Board of Australia
The National Law provides the NMBA with Section 178 of the National Law outlines the
powers, not only in relation to health issues but circumstances in which the NMBA may take
also in relation to performance matters. action in relation to a health, competency or
This includes, directing a nurse or midwife conduct matter against a nurse, midwife or
to undertake an independent medical student.
assessment in circumstances where it believes The grounds upon which the NMBA may take
that the nurse or midwife’s ability to discharge action are:
their duties is impaired by a mental or physical
a. if the nurse or midwife’s practice or
condition.
professional conduct may be unsatisfactory,
Section 169 of the National Law provides or
that where the NMBA reasonably believes that
b. the nurse, midwife or student has or may
a nurse, midwife or student has or may have
have an impairment, or
an impairment they can require that person to
undergo a health assessment. c. a student has been charged with an
offence that is punishable by 12 months
Section 170 provides a similar power where
the NMBA reasonably believes that a nurse or imprisonment or more, or
midwife may be practising the profession in a d. a student has contravened a condition of
way that is unsatisfactory. registration or an undertaking given to the
Students cannot be directed to undertake a NMBA.
performance assessment. The reference to ‘reasonably believes’ in
A copy of the report must be given to section 178 imports the civil standard of proof;
the nurse, midwife or student, aside from that is the NMBA must be satisfied, on the
health assessments where to do so may be balance of probabilities, that the nurses of
prejudicial to the nurse, midwife or student’s midwife has engaged in the conduct alleged.
physical or mental health or wellbeing. In the absence of evidence sufficient for the
In these circumstances the report will NMBA to be reasonably satisfied, the NMBA
be given to the nurse, midwife or student’s should determine to take no further action in
treating medical practitioner, who cannot respect of the complaint under s.151.
release a copy of the report until such time The action that the NMBA may take in
as the potential detrimental impact upon the relation to a complaint is as follows:
health of the person ceases to exist.
a. caution the nurse, midwife or student
Upon receiving the assessor’s report, the
NMBA may decide to take further action under b. accept an undertaking from the nurse,
the National Law, refer the matter to another midwife or student
entity such as the Health Ombudsman or take c. impose conditions on the nurse, midwife or
no further action. student’s registration, for example further

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training, or requiring the practitioner to The NMBA must give written notice of the
do or refrain from doing something in decision to the nurse, midwife or student and,
connection with their practice if the decision arose as a result of a complaint,
d. refer the matter to another entity such as the complainant (s.180).
the Health Ombudsman.
Panels
Right to make a submission Perhaps one of the most significant, yet so
The NMBA cannot take any action in relation far rarely used, changes brought about by the
to a complaint unless a show cause process National Law is the creation of Health Panels
occurs. and Performance and Professional Standards
Section 179 of the National Law provides Panels.
that if the NMBA proposes to take action
Health Panels
against a nurse, midwife or student, the
NMBA must give the nurse, midwife or student A Health Panel can be established if the
written notice of the proposed action and NMBA reasonably believes that a nurse, midwife
allow the nurse, midwife or student to provide or student has an impairment and the NMBA
a written submission to the NMBA about the decides it is necessary or appropriate for the
proposed action. matter to be referred to a panel (s.180[1][b]).
After considering the nurse, midwife or The NMBA has not published guidelines
student’s submission, the NMBA can either related to the circumstances in which the
take no further action or take the proposed NMBA may deem it necessary or appropriate
action. for a matter to be referred to the Panel.

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The National Law does not provide significant view the panels appear to be quasi-courts
guidance in relation to when National Boards designed to deal with performance and
should use a Health Panel or Performance and professional standard matters which are likely
Professional Standards Panel in the legislation. to be too complex for the NMBA to make a
The Health Panel must consist of at least decision solely on the basis of a complaint and
one member who is a nurse or midwife, one submissions from the person subject of the
member who is a medical practitioner with complaint; and problem matters where there
expertise relevant to the alleged impairment, is a degree of dispute in relation to the subject
and at least one member who is not and has matter of a complaint.
never been a nurse or midwife. This view is reinforced by the fact that the
panels have hearings at which the person
Performance and Professional
subject to the complaint can appear and, in
Standards Panels
some circumstances, be legally represented.
The NMBA can also establish a Performance
and Professional Standards Panel if it When a matter is referred to the panel, the
reasonably believes that a nurse or midwife’s panel must give notice of its hearing of the
professional conduct, or the way they practise matter to the nurse, midwife or student who
their profession, is or may be unsatisfactory, and is the subject of the hearing. This notice must
the NMBA decides it is necessary or appropriate specify:
for the matter to be referred to a panel (s.182[1]). ■■ the date, time and place of the hearing
Again, no guidance is provided by the ■■ the nature of the hearing and the matters
legislation in relation to when it is necessary or to be considered
appropriate for the NMBA to establish a panel,
■■ that the nurse, midwife or student is
nor have any guidelines providing assistance
required to attend the hearing
in interpretation of this section been issued by
AHPRA, or the NMBA. ■■ that the nurse, midwife or student may be
accompanied by a lawyer or another person
In the QNMU’s view, panels would most likely
be used when the credibility of witnesses or ■■ that if they fail to attend, the hearing may
evidence is contested. continue and the panel will make a decision
in their absence.
Once the NMBA determines to establish a
panel, the panel then runs independently from The panel is also required to advise the nurse,
the NMBA. midwife or student of the possible decisions they
may make at the conclusion of the hearing.
A Performance and Professional Standards
Panel must consist of at least three members. Legal representation
At least half, but not more than two thirds, of Section 186 provides that a nurse, midwife
the members of the panel must be nurses and or student who is the subject of the hearing
midwives. may be ‘accompanied’ by a lawyer or ‘another
At least one member of the panel must be person’ such as a QNMU representative, family
a community representative. In the QNMU’s member, or other support person.

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Section 186(2) of the National Law provides b. the panel reasonably believes the evidence
that a lawyer may appear on behalf of the demonstrates professional misconduct or
nurse, midwife or student only with leave of that the nurse or midwife’s registration may
the panel. Leave may be granted only if the have been improperly obtained.
panel considers it appropriate in the particular
Decisions of the panel
circumstances of the hearing.
Section 191 of the National Law provides
This particular provision is similar to that after hearing a matter about a nurse or
provisions in relation to legal representation in midwife a panel may decide to take no further
industrial commissions and other tribunals. action or make the following findings that the:
Generally, in such tribunals, leave will be a. nurse or midwife’s behaviour constitutes
granted in circumstances where the complexity unsatisfactory professional performance
of the matter, both factually and in relation to
b. nurse or midwife’s behaviour constitutes
legal principles that will be considered by the
unprofessional conduct
panel, are such that the assistance of a lawyer
representing the person subject of the hearing c. nurse or midwife has an impairment
is desirable. d. matter be referred to the responsible
If the panel is convened as a result of a tribunal
notification made to AHPRA and referred the e. matter be referred to another health
NMBA, the notifier is able to make submissions complaints entity for investigation.
to the panel about the matter.
If a student is the subject of a Health Panel
The panel is required by s.185(2) of the the panel may decide that the student has an
National Law to observe the principles of impairment, that the matter be referred to a
natural justice and is not bound by the formal health complaints entity, or that the student
legal rules of evidence. has no case to answer and that no further
This is similar to many quasi-courts in action is to be taken in relation to the matter.
Australia, such as industrial commissions, In relation to decisions that a nurse, midwife
however it is the experience of the QNMU that, or student has an impairment, or that the
although the strict rules of evidence that may nurse or midwife has behaved in a way
exist in a civil court are not necessarily followed that constitutes unsatisfactory professional
by such tribunals, generally significant principles performance or unprofessional conduct, the
of the rules of evidence are complied with. panel can take the following actions:
A hearing before a panel is not open to the a. impose conditions on the nurse, midwife or
public (s.189). student’s registration
A panel must stop hearing a matter and b. for a Health Panel, suspend the nurse,
require the NMBA to refer a matter to the midwife or student’s registration
QCAT if:
c. for a Performance and Professional
a. the nurse, midwife or student request the Standards Panel, caution or reprimand the
matter be referred to the QCAT nurse or midwife.

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Following making their determination, the matter and the likelihood of proving relevant
panel must give notice of its decision to the matters before QCAT.
NMBA.
Additionally, the Director must refer a
The NMBA must give written notice of the matter to QCAT if it is a matter, that under
decision to the nurse, midwife or student and, the National Law, would require the Health
where relevant, the notifier within 30 days of Ombudsman to refer to QCAT. Those
receiving this decision (s.192). circumstances include:
a. where a nurse or midwife has engaged
QCAT disciplinary action
in behaviour which the NMBA reasonably
In Craig v Medical Board of South Australia
believes may constitute professional
(2001) 79 SASR 545 the South Australian
misconduct, or
Court of Appeal succinctly stated the purposes
of disciplinary proceedings in respect of b. where the NMBA reasonably believes that
professional discipline: the nurse or midwife’s registration was
improperly obtained.
The purpose of disciplinary proceedings
is to protect the public, not to punish The NMBA must also refer matters to QCAT
the practitioner in the sense in which as directed by a panel established by the
punishment is administered pursuant to NMBA.
the criminal law. A disciplinary tribunal The National Law provides definitions for
protects the public by making orders unsatisfactory professional performance,
which will prevent persons who are unfit to unprofessional conduct, and professional
practice from practising, or by making an misconduct.
order which will secure the maintenance of
These definitions are an attempt to
proper professional standards.
consolidate the many and varied terms and
As noted above, the office of the Health phrases that previously existed under the
Ombudsman will manage all serious allegations numerous regulatory regimes.
against Queensland nurses and midwives.
Professional misconduct is defined in the
The Health Ombudsman will have the National Law as being:
power to refer a health service complaint
a. unprofessional conduct that amounts to
about a nurse or midwife to the Director of
conduct substantially below the standard
Proceedings who will then decide whether to
reasonably expected of a nurse or midwife
refer the complaint to the Queensland Civil
of an equivalent level of training or
and Administrative Tribunal (QCAT).
experience
The role of the Director of Proceedings
b. more than one instance of unprofessional
is outlined in the Health Ombudsman
conduct
section later in this chapter. Nonetheless, in
determining whether to refer a complaint c. conduct of the nurse or midwife, whether
to QCAT, the Director must have regard to, occurring in connection with their practice
among other things, the seriousness of the or not, that is inconsistent with the nurse

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or midwife being a fit and proper person to Unsatisfactory professional performance is

hold registration. defined by the National Law as being where
The National Law defines unprofessional the knowledge, skill or judgement possessed,
conduct as being conduct of a lesser standard or the care exercised by the nurse or midwife
than might reasonably be expected of the nurse in the practise of their profession is below the
or midwife by the public or the practitioner’s standard reasonably expected of a nurse or
professional peers. Unprofessional conduct midwife of an equivalent level of training or
includes such things as: experience.
a. a contravention by the nurse or midwife of It is only professional misconduct which is

the National Law referred to QCAT for disciplinary proceedings.
b. a contravention of a conditional undertaking The QCAT was established under the

Queensland Civil and Administrative Tribunal
c. the conviction of a nurse or midwife of an
Act 2009. Prior to this the Queensland Nursing
offence under another Act which may affect
Tribunal had carriage of nursing disciplinary
the nurse or midwife’s suitability to continue
matters under the Nursing Act 1992.
to practise
It was also the tribunal which, prior to 1 July
d. providing a person with health services that
2010, had carriage for most disciplinary matters
are excessive, unnecessary or otherwise
relating to health professions in Queensland.
not reasonably required for the person’s
wellbeing Although QCAT is less formal than civil
e. attempting to influence another registered courts such as the Supreme or District Court,
health practitioner in a way that it still uses many procedures and formalities
compromises patient care found in civil courts.
f. accepting a benefit as inducement, The QNMU will, in most cases, provide

consideration or reward for referring a representation to nurse, midwife and student
person to a health service provider or financial members who are the subject of
recommending they use or consult with a NMBA referrals to QCAT.
health service provider Parties to proceedings in relation to matters
g. offering another person a benefit, referred to the QCAT are the nurse, midwife or
consideration or reward in return for that student as the respondent to the proceedings
person referring people to the practitioner or and the NMBA as the referrer, or applicant,
recommencing that people use their service of charges preferred against the nurse or
midwife to QCAT.
h. referring or recommending someone use
or consult a health service provider if the The procedures and rules applicable in
nurse or midwife has a pecuniary interest in QCAT are found within the QCAT Act, the
giving the referral or recommendation and Queensland Civil and Administrative Tribunal
in circumstances where they don’t disclose Rules 2009 and practice directions issued by
the pecuniary interest. QCAT.

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Therefore nurses and midwives may be ■■ impose a fine of not more than $30,000 to
required to draft legal submissions, call be paid to the NMBA
witnesses and cross examine witnesses called ■■ suspend the nurse or midwife’s registration
by the NMBA. ■■ cancel the nurse or midwife’s registration.
Nurses, midwives and students are strongly If the QCAT determines to cancel the nurse
advised to seek advice from the QNMU if or midwife’s registration, QCAT can disqualify
they ever become subject to proceedings in the nurse or midwife from applying for
QCAT. registration of a specified period and prohibit
A significant change in the way in which the person from using a specified title or
disciplinary action is dealt with under the providing a specified health service.
National Law is that QCAT can award costs
Decisions regarding students
against parties in proceedings brought under
the National Law. After hearing a matter in relation to a
student QCAT may decide that the student
Under previous state nursing laws
has an impairment or that the student has
costs could either not be awarded in such
no case to answer and that no further action
proceedings, were capped to a specific
should be taken.
maximum amount or could only be ordered in
very limited circumstances. If QCAT decides that the student has an
impairment, QCAT can determine to impose
Following a hearing, QCAT can decide that
a condition on the student’s registration or
the nurse or midwife has no case to answer
suspend the student’s registration.
and that no further action should be taken
against them or make one or more of the Appeals
following decisions that the nurse or midwife
Section 199 of the National Law gives nurses
has:
and midwives the right to appeal against
■■ engaged in unsatisfactory professional certain decisions of the NMBA, Health Panels
performance and Performance and Professional Standards
■■ engaged in behaviour that constitutes Panels.
unprofessional conduct
Appeals against decisions from these bodies
■■ behaved in a way that constitutes are to QCAT. If the appeal is successful, the
professional misconduct decision of the NMBA or panel will be set aside;
■■ an impairment that is, have no effect.
■■ obtained registration improperly.
In very limited circumstances QCAT may
In relation to these decisions QCAT can grant a ‘stay’ of the NMBA or panel decision
determine to impose the following sanctions pending hearing the appeal.
on the nurse or midwife:
Nurses and midwives should seek advice
■■ caution or reprimand from the QNMU in relation to whether they
■■ impose conditions on the nurse or midwife’s are able to appeal decisions of the NMBA or
registration panels which they disagree with.

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The Queensland Health and midwives, and inadequate responses to

Ombudsman these allegations.
The office of the Health Ombudsman Further, that there are confused roles
heralds a new era in health service complaints between the existing health complaints
management in Queensland. management entities, and inadequate
transparency and accountability in the health
The following section of the chapter
complaints management system.
summarises the functions, powers and
responsibilities the Act bestows upon the Objectives
Health Ombudsman and outlines the process The main objects of the Act are:
of the new health service complaints regime.
1. “to protect the health and safety of the public
Background 2. to promote:
The explanatory notes to the Health
a. professional, safe and competent
Ombudsman Bill 2013 (the “Bill”) state that
practice by health practitioners; and
inquiries, and media reports in relation to
certain health practitioners, highlighted b. high standards of service delivery by
fundamental deficiencies in the way the health service organisations; and
Queensland public is protected by the 3. to maintain public confidence in the
existing health complaints management management of complaints and other
system. matters relating to the provision of health
The explanatory notes contend that the services”.
existing system has resulted in unjustified The main principle for administering the Act
delays in dealing with serious allegations is that the health and safety of the public is
against health practitioners, including nurses paramount.
The office of the Health

Ombudsman heralds a new era
in health service complaints
management in Queensland.

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Achievement of objectives All health service complaints are now

The Act creates the new statutory position received by the Health Ombudsman.
of Health Ombudsman which abolishes the The Health Ombudsman’s role is to manage
Health Quality and Complaints Commission all serious allegations against Queensland
(the “HQCC”) and changes the way in which nurses—namely, matters that indicate a nurse
notifications and complaints against all nurses has engaged in professional misconduct or
are to be dealt with in Queensland. where a ground may exist for the suspension
The Health Ombudsman is tasked with or cancellation of a nurse’s registration.
delivering a transparent, accountable and The NMBA will deal with any disciplinary
fair system for effectively and expeditiously matters under the National Law that are
dealing with complaints and other matters referred to it by the Health Ombudsman.
related to the provision of health services.
Health service complaints
The Act does not amend the Health Health service is broadly defined by the Act as:
Practitioner Regulation National Law Act
“a service that is, or purports to be,
2009 (“National Law”), which is adopted by
a service for maintaining, improving,
reference to a number of other jurisdictions,
restoring or managing people’s health and
but modifies how the National Law applies in
wellbeing”, and includes a support service
Queensland.
for a health service (eg patient transport).
Queensland becomes what is referred to as
A health service can be provided at
a “co-regulatory” jurisdiction, somewhat similar
any place and includes alternative and
to the position of New South Wales with regard
complementary medicine (s.7).
to health practitioner notification matters.
It follows that any complaint about a health
The functions of the Australian Health
service is intended to be managed by the
Practitioner Regulation Agency (AHPRA) and
Health Ombudsman.
the Nursing and Midwifery Board of Australia
(NMBA) in relation to Queensland nurses’ Additionally, mandatory or voluntary
registration will remain the same. notifications made pursuant to the National
Law are treated as if the notification was a
However, there are changes to the way complaint to the Health Ombudsman.
complaints against nurses are received and
administered. Expansion to cover unregistered health
practitioners
The Act amends the National Law so that
The Act also covers health service providers.
Queensland is a co-regulatory jurisdiction for
A health service provider is:
the purposes of the National Law. As stated,
this will not affect the national registration of a. a health practitioner under the National
nurses or midwives, but enables Queensland Law (eg practitioners already required to be
to vary how Part 8 of the National Law registered — RN, EN, Midwife) or
provides for the disciplinary arrangements for b. another individual who provides a health
nurses and midwives. service or

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c. an entity who provides a health service ■■ to provide information to the public,

(health service organisation) (s.8). health practitioners and health service
This means the Act will capture Assistants in organisations about:
Nursing or any other individual who provides ◆◆ providing health services in a way that
a health service such as Personal Carers and minimises health service complaints
wards persons.
◆◆ resolving health service complaints.
The Health Ombudsman will refer to the (s.25)
National Code of Conduct for Unregistered
The Health Ombudsman has power to do
Health Workers when determining if such
all things that are necessary or convenient
workers have engaged in unsatisfactory
to be done for or in connection with the
conduct.
performance of the Health Ombudsman’s
In the event any member, whether functions. (s.26)
registered or unregistered, receives a show
In performing the Health Ombudsman’s
cause notice from the Health Ombudsman, it is
functions, the Health Ombudsman is required
strongly advised that they contact the QNMU
to act independently, impartially and in the
immediately.
public interest. (s.26).
This is because the Act has strict timelines
The powers of the Health Ombudsman
that must be observed and extensions of time
were increased recently following the passage
will not be granted.
of legislation through the Queensland
Functions and powers Parliament.
The Health Ombudsman’s functions The QNMU opposed many of these
include: expansions of power through submissions
■■ to receive health service complaints and and presentations to the Parliamentary
take relevant action to deal with them Committee prior to the passing of the
under the Act amending Bill.
■■ to identify and deal with health service As a result of the amendments, the Health
issues by undertaking investigations, Ombudsman’s powers to take immediate
inquiries and other relevant action action were broadened and the definition of
what a ‘health service’ is remains unclear.
■■ to identify and report on systemic issues
in the way health services are provided, Dealing with complaints
including issues affecting the quality of Any person can make a complaint about a
health services nurse. Examples of persons who may make a
■■ to monitor the national board’s and complaint about a nurse include: an individual
national agency’s performance of their to whom a health service was provided; a
functions relating to the health, conduct parent, guardian or other representative
and performance of health practitioners of an individual to whom a health service
who provide health services in Queensland was provided; or a health practitioner with

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concerns about the health, conduct or 2. local resolution

performance of the nurse. (s.32)
3. immediate registration action
The complaint is initially assessed by the
4. investigate the subject matter
Office of the Health Ombudsman in the same
way for both registered and unregistered 5. refer the complaint to AHPRA or an entity of
practitioners. the State or Commonwealth
The Health Ombudsman must decide within 6. refer the complaint to the Director of
seven (7) days to accept a complaint and take Proceedings
relevant action, or decide to take no further 7. conciliation, or
action in respect of a complaint.
8. conduct an inquiry into the subject matter
Irrespective of what the Health Ombudsman of the complaint.
decides, written notice of the decision is to
A brief synopsis of each relevant action is
be provided to both the complainant and
set out below. For detailed information nurses
the nurse within seven days of receiving the
notification. should refer to the Act or seek advice from the
QNMU.
At any time, the Health Ombudsman may
decide to take no further action in relation to 1. Assessment of the complaint
a health service complaint about a nurse if the The purpose of the Health Ombudsman
Health Ombudsman reasonably considers the undertaking an assessment of a health
complaint: service complaint is to gather and analyse
■■ is frivolous, vexatious, trivial or not made in information and then decide the most
good faith appropriate way of dealing with the
complaint (s.46).
■■ is misconceived or lacking in substance
Nonetheless, there is no requirement for the
■■ is being adequately dealt with by another
Health Ombudsman to assess a complaint
appropriate entity
before taking relevant action.
■■ has been resolved or otherwise
If the Health Ombudsman assesses a
appropriately finalised by the Health
complaint, the assessment is to be completed
Ombudsman or another appropriate entity,
within 30 days, save for situations where a
or
further 30 day extension may be granted
■■ despite reasonable efforts by the Health due to the size or complexity of the matter
Ombudsman or another appropriate entity, or because of the time taken to obtain a
cannot be resolved (s.44). submission from either the complainant or the
Once the Health Ombudsman accepts a health service provider.
complaint, there are a number of relevant Submissions from either the complainant or
actions that may be taken for dealing with the the health service provider are to be provided
complaint. These include: within the stated period, that is, within
1. assessment of the complaint fourteen days.

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2. Local resolution a nurse if, amongst other things, the Health

The purpose of local resolution is to facilitate Ombudsman reasonably believes that
resolution between the complainant and the because of the nurse’s health, conduct or
health service provider as quickly as possible performance, the nurse poses a serious risk
and with minimal intervention by the Health to persons or it is necessary to take action to
Ombudsman. protect public health and safety.
The Health Ombudsman is only able to The Act also provides that the Health
facilitate a local resolution of a health service Ombudsman may take immediate registration
complaint in the following circumstances if: action against a nurse at any time, even if a
health service complaint has not been made
a. the complaint relates to the provision of a
against the nurse.
health service to the complainant
As under the National Law, if the Health
b. the complainant has made a complaint on
Ombudsman proposes to take immediate
behalf of his or her child or someone for
registration action against the registration of
whom the complainant is a guardian under
a nurse of midwife, the Health Ombudsman
the Guardianship and Administration Act
must comply with the show cause process.
2000 (Qld)
That is, the Health Ombudsman must give
c. the complaint relates to a health service the nurse a notice stating the proposed action
provided to someone who is deceased and invite the nurse to make a submission
and the complainant is a member of the within a stated period of at least seven (7)
deceased’s family or days.
d. a complaint is made on behalf of a recipient In the event a nurse is issued with a
of a health service who has asked the notice from the Health Ombudsman, the
complainant to make a complaint on their nurse should contact the QNMU for advice
behalf (s.38(2)). immediately.
3. Immediate registration action
Part 7 of the Act gives the Health
Ombudsman power to take immediate
registration action and to issue interim
prohibition orders against Queensland nurses
and midwives.
a. Immediate registration action
The Health Ombudsman
Pursuant to the Act, immediate registration
action in relation to a nurse means the has power to take
suspension of, or imposition of a condition on,
the nurse’s registration. immediate registration
The Health Ombudsman has power to action against a nurse...
take immediate registration action against

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b. Interim prohibition orders competence or professional affiliations

(s.68).
For unregistered practitioners, there’s the
possibility of new forms of action that may be The Ombudsman will also be able to
taken against them which are currently not commence action against unregistered
available. The Ombudsman can issue “interim practitioners in QCAT. QCAT can make
prohibition orders”. prohibition orders (s.113) — with similar effect
to interim prohibition orders.
A prohibition order or an interim prohibition
order is an order that can be issued to an Prohibition orders will be published (s.79).
unregistered health practitioner worker: There is no mention in the legislation about
■■ “prohibiting the practitioner from providing of the length of prohibition orders; possibly
any health service or a stated health they could be in effect indefinitely. Appeal may
service” or be to the Supreme Court.
■■ “imposing stated restrictions on the provision Contravening a prohibition order or interim

of any health service, or a stated health prohibition order has a maximum penalty of
service, by the practitioner” (s.67, s.113). $22,000 (s.78).
In other words, this means stopping 4. Investigate the subject matter

someone practicing, despite them not holding If the Health Ombudsman considers that
registration. an investigation of a matter is relevant
These orders can be issued if, because of to achieving the objects of the Act, an
the unregistered practitioner’s health, conduct investigation of the subject matter of the
or performance, they pose a serious risk to health service complaint may be undertaken.
persons. The Health Minister also has power to direct
The serious risk of harm can be things like: the Health Ombudsman to undertake an
investigation.
a. practising the practitioner’s profession
unsafely, incompetently or while intoxicated Investigations under Part 8 of the Act are
to be completed within one (1) year of being
by alcohol or drugs
commenced. Extensions of no more than
b. financially exploiting the person three months may be granted in the event the
c. engaging in a sexual or improper personal investigation has not been completed.
relationship with the person
5. Refer the complaint to AHPRA
d. discouraging the person from seeking Referrals of health service complaints
clinically accepted care or treatment may be made by the Health Ombudsman
e. making false or misleading claims about to AHPRA or another entity of the State or
the health benefits of a particular health Commonwealth.
service, or 6. Referral to QCAT
f. making false or misleading claims about QCAT has jurisdiction to review decisions by
the practitioner’s qualifications, training, the Health Ombudsman to take immediate

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03
registration action, issue an interim prohibition completed. That is, an investigation, immediate
order. QCAT also has jurisdiction to hear registration action, or a referral.
matters referred to it by AHPRA and the
It should be noted that if a nurse
office of the Health Ombudsman and to hear
participates in conciliation, anything said
applications to change or remove conditions
or admitted during the conciliation, or any
imposed on a nurse’s registration by QCAT.
document prepared for, or in the course of the
If the Health Ombudsman considers a conciliation, is privileged.
complaint should be referred to QCAT, the
8. Conduct an inquiry
complaint must first be referred to the
The Health Ombudsman may conduct an
Director of Proceedings.
inquiry into any of the following if the Health
The Director is a lawyer within the Office of Ombudsman considers it would be in the
the Health Ombudsman who will determine public interest to do so:
whether a matter is to be referred to QCAT or
■■ a matter to which a health service
back to the Health Ombudsman.
complaint relates
In deciding whether a complaint ought to
■■ a systemic issue relating to the provision of
be referred to QCAT, the Director must have
a health service
regard to the following:
■■ another matter that the Health
■■ the paramount guiding principle
Ombudsman considers is relevant to
■■ the seriousness of the matter achieving an object of the Act.
■■ the likelihood of proving matters before
Limitation of time
QCAT
Section 44 of the Act provides that the
■■ the orders that the QCAT may make Health Ombudsman may elect not to take any
■■ any other relevant matters. action on a complaint if the subject matter of
the complaint arose more than two (2) years
If a complaint is a matter that the Health
earlier.
Ombudsman is required to refer directly to
QCAT pursuant to the National Law, then the Nonetheless, in the event the Ombudsman
Director must refer the matter to QCAT. reasonably considers that the nurse, who
is subject of the complaint, has acted in
7. Conciliation
a manner that constitutes professional
Conciliation is a form of dispute resolution. misconduct, or in the event another ground
The purpose of conciliating a health service exists for the suspension or cancellation of the
complaint is to enable the complainant nurse’s registration, the time limitation does
and the health service provider to settle not apply.
a complaint in a reasonable way and, if
necessary, enter an agreement to give effect
to such settlement (s. 38(2)).
The Act provides that conciliation cannot
commence until other relevant action has been

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Professional
practice issues
P ursuant to the National Law, the NMBA

develops policies, professional standards,
guidelines, position statements, frameworks
conduct expectations for all midwives and
nurses, in all practice settings, in Australia.
They describe the principles of professional
and fact sheets to provide guidance to the behaviour that guide safe practice, and
professions. clearly outline the conduct expected of
midwives by their colleagues and the broader
These documents can be found on their
community.
website. They are often referred to by the
Health Ombudsman, AHPRA and employers Each code contains four domains, with
when determining what is professional each domain having profession-specific
practice and conduct. principles and values that set out the legal
requirements, professional behaviour and
Professional Standards conduct expectations for all midwives and
A breach of any standard for the profession nurses.
can result in action by the relevant regulator The principles and values apply to all areas
for unprofessional conduct or professional of practice, with an understanding that
misconduct, depending upon the seriousness both professions will exercise professional
of the breach. It can also result in action by judgement in applying them, with the goal of
your employer. delivering the best possible outcomes.
Codes of Conduct for Midwives and The four domains are:

Nurses 1. Practise legally.
There are two separate codes of conduct
2. Practise safely, effectively and
for midwives and nurses. Both the Code
collaboratively.
of Conduct for Midwives and the Code
of Conduct for Nurses set out the legal 3. Act with professional integrity.
requirements, professional behaviour and 4. Promote health and wellbeing.

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Midwife and nurse members should review Standards for Practice

their respective code in its entirety on the The NMBA provides separate Standards
NMBA website. for Practice for Enrolled Nurses, Registered
Nurses, Nurse Practitioners and Midwives. The
Codes of Ethics for Midwives and Nurses
purpose of these standards is to:
As with the Codes of conduct, there are
■■ create the minimum requirements for
separate codes of ethics for midwives and
accepted professional practice
nurses.
■■ assist nurses and midwives in determining
These are:
their respective scopes of practice, both
■■ The International Confederation of individual and of the profession, and
Midwives Code of Ethics for Midwives; and
■■ provide a clear framework for assessing the
■■ The International Council of Nurses Code of performance of a nurse or midwife.
Ethics for Nurses.
These standards can also be found on the
Both codes can be found on the NMBA NMBA website. Members should become very
website. familiar with them.
A breach of any
standard for the
profession can result
in action by the
relevant regulator
for unprofessional
conduct or professional
misconduct...

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04 Professional practice issues
Frameworks Scope of practice of a profession

Decision-making Framework A professions’ scope of practice is the full
The NMBA provides a framework for nurses spectrum of roles, functions, responsibilities,
and midwives to assist them in their decision- activities and decision-making capacity that
making about practice. individuals within that profession are:
The DMF is a useful document and provides ■■ educated

good direction on the various aspects of ■■ competent and
practice and the practice environment that ■■ authorised to perform.
should be considered when making decisions Some functions within the scope of practice
about: of any profession may be shared with other
■■ the motivation for a decision professions or other individuals or groups.
■■ when an activity is beyond one’s scope of The scope of practice of all health
practice and how to expand that scope professions is influenced by the wider
environment, the specific setting, legislation,
■■ who is the most appropriate person to policy, education, standards and the health
perform a nursing or midwifery activity needs of the population.
■■ making decisions in a collaborative context.
Scope of practice of an individual
The framework also provides excellent The scope of practice of an individual is that
guidance on the criteria to be considered which the individual is:
before delegating a task to an Enrolled Nurse
■■ educated
or to an Assistant in Nursing or Personal Care
Worker. ■■ authorised and
■■ competent to perform.
The scope of practice of an individual nurse
or midwife may be more specifically defined
than the scope of practice of their profession.
To practise within the full scope of practice
of the profession may require individuals to
update or increase their:
■■ knowledge
■■ skills
■■ or competence.
Decisions about both the individual’s and
the profession’s practice can be guided by the
use of decision-making tools.
When making these decisions, nurses and
midwives need to consider their individual and
their respective profession’s scope of practice.

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Guidelines Professional boundaries

Continuing Professional Development An occupational hazard for nurses and
The NMBA has issued guidelines for nurses midwives?
and midwives to meet their mandatory The authors Karen V. Holder and Stephen
obligation to undertake the minimum hours J. Schenthal in Watch your step: Nursing
of continuing professional development on an and professional boundaries (Nursing
annual basis. Management, February 2007) observed:
The NMBA recommends that nurses and “Boundary issues… exist everywhere for
midwives complete a range of CPD activities nurses, regardless of the professional
throughout the course of the registration setting. Boundary continuum issues
period. This is more effective for learning than range from giving or receiving a gift from
completing CPD activities of one type, or in a a patient, to picking up groceries for a
short time period. homebound patient, to social contacts
with former patients or their relatives—
CPD activities must be relevant to the nurse
especially in the case of minors—to having
or midwife’s area of professional practice,
a sexual relationship with a patient. This
and have clear aims and objectives that meet
list isn’t exhaustive, but definitions and
their requirements.
interpretations of such boundary issues
Nurses and midwives must keep records of are expanding in state nurse practice acts,
their CPD activities for a period of five years in media sources, and in courts of law.
from the date you completed the CPD.
While nurses are educated in the
All CPD records must be available for importance of therapeutic disclosure with
audit or if needed by the NMBA as part of patients, and in the concept of ‘partnering
an investigation arising from a notification with patients’, there’s little training given on
(complaint). the concepts of inherent power differentials
The minimum requirement for all Registered or on crossing the line with gifts, gestures,
Nurses, Enrolled Nurses and Midwives is 20 touch, or special attention. Though many
hours of CPD per registration year. of these areas aren’t harmful within a
therapeutic context, nurses and nurse
Nurse Practitioners and Midwives with
managers must be increasingly aware of
endorsement for scheduled medicines must
patterns of boundary crossings and the
complete an additional 10 hours relevant to
potential or real harm that may come to
their endorsement.
patients and to nursing staff.
The QNMU’s member-only CPD portal
Some authors go so far as to state
includes a feature that allows you to track,
that professional boundary crossings
record and reflect on your CPD, in a format
and violations are an occupational
suitable for audit.
hazard in nursing and in the healthcare
professions. Certainly, nurses and other
Visit www.qnmu.org.au/CPD
health professionals are vulnerable to

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patient/client perceptions and other accountable and responsible midwifery

practice issues. Some common examples practice in all clinical, management, education
of vulnerabilities in hospital settings are and research domains, in Australia.
isolated work environments, lack of direct The Code identifies how a midwife is
nurse supervision, length and intensity of expected to behave with professional integrity
nurse-patient interactions, and patient and embody values; integrity, honesty, respect
vulnerabilities such as the fear and and compassion.
jeopardized independence brought on by
surgery and illness.” The Code defines professional boundaries
as: “allowing midwives, the woman and the
The Nursing and Midwifery Board of woman’s nominated partners, family and
Australian (NMBA) has recently released on friends to engage safely and effectively in
1 March 2018, both the Code of Conduct for professional relationships, including where
Nurses and Code of Conduct for Midwives (the care involves personal and/or intimate
Codes). contact. In order to maintain professional
The NMBA have concurrently withdrawn boundaries, there is a start and end point to
the Professional boundaries for nurses and the professional relationship and it is integral to
Professional boundaries for midwives and the midwife-woman professional relationship.”
combined professional boundaries into the The NMBA is clear that to maintain
Codes. professional boundaries a midwife must:
The Codes support nurses and midwives e. recognise the inherent power imbalance
to provide safe practice as part of their that exists between midwives, women
professional roles. They provide foundational in their care and significant others and
guidance to the public about the standard establish and maintain professional
of conduct and behaviour expected from boundaries
nurses and midwives, and helps the NMBA to
protect the public by setting and maintaining f. actively manage woman’s expectations, and
standards for safe practice. be clear about professional boundaries that
must exist in professional relationships for
Professional boundaries for midwives objectivity in care and prepare the woman
The Code of Conduct for Midwives set for when the episode of care ends
minimum standards that midwives are g. avoid the potential conflicts, risks, and
expected to uphold both within and outside of complexities of providing care to those
professional domains in order to ensure the with whom they have a pre-existing non-
‘good standing’ of the profession in Australia. professional relationship, and ensure that
This Code, together with other published such relationships do not impair their
practice standards (e.g. code of ethics, judgement. This is especially relevant for
standards of practice, decision making those living and working in small, regional or
frameworks, direction and delegation cultural communities and/or where there is
guidelines and position statements) provide long-term professional, social and/or family
the framework for legally and professionally engagement

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The Code identifies how

a midwife is expected to
behave with professional
integrity and embody
values; integrity, honesty,
respect and compassion.
h. avoid sexual relationships with the woman, management to rectify or manage the
her partner and/or members of the woman’s situation
family, with whom they have currently or
k. in cases where the professional relationship
had previously entered into a professional
has become compromised or ineffective
relationship. These relationships are
and ongoing care is needed, facilitate
inappropriate in most circumstances and
arrangements for the continuing care of
could be considered unprofessional conduct
the woman to another health practitioner,
or professional misconduct
including passing on relevant clinical
i. recognise when over-involvement has information
occurred, and disclose this concern to an
l. actively address indifference, omission,
appropriate person, whether this is the
disengagement/lack of care and disrespect
person involved or a colleague
to women that may reflect under-
j. reflect on the circumstances surrounding involvement, including escalating the
any occurrence of over-involvement, issue to ensure the safety of the woman if
document and report it and engage in necessary

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m. avoid expressing personal beliefs to the For midwives who also practise as nurses
woman in ways that exploit the woman’s a separate but consistent Code of Conduct
vulnerability, are likely to cause them for Nurses has been developed for nurses
unnecessary distress, or may negatively to complement the equivalent codes of
influence their autonomy in decision- professional conduct and ethics for nurses in
making, and Australia.
n. not participate in physical assault such as
Professional boundaries for nurses
striking, unauthorised restraining and/or
The Code of Conduct for Nurses set
applying unnecessary force.
minimum standards that nurses are expected
The principles that are inherent in the to uphold both within and outside of
partnership model between a woman and a professional domains in order to ensure the
midwife are: ‘good standing’ of the profession in Australia.
■■ individual negotiation The code is written in recognition that
■■ equality nursing practice allows nurses to work in
management, leadership, governance,
■■ share responsibility
administration, education, research, advisory,
■■ empowerment, and regulatory, policy development roles or other
■■ informed choice and consent. roles that impact on safe, effective delivery

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04
of services in the profession and/or use of the e. recognise when over-involvement has
nurse’s professional skills. occurred, and disclose this concern to an
appropriate person, whether this is the
The code is supported by the NMBA
person involved or a colleague
Registered nurse standards for practice,
the NMBA Enrolled nurse standards for f. reflect on the circumstances surrounding
practice and, with the other NMBA standards, any occurrence of over-involvement,
codes and guidelines, which underpins the document and report it, and engage in
requirements and delivery of safe, kind and management to rectify or manage the
compassionate nursing practice. situation
To maintain professional boundaries, nurses g. in cases where the professional

must: relationship has become compromised or
ineffective and ongoing care is needed,
a. recognise the inherent power imbalance
facilitate arrangements for the continuing
that exists between nurses, people in their
care of the person to another health
care and significant others and establish
practitioner, including passing on relevant
and maintain professional boundaries
clinical information
b. actively manage the person’s expectations,
h. actively address indifference, omission,
and be clear about professional
disengagement/lack of care and disrespect
boundaries that must exist in professional
to people that may reflect under-
relationships for objectivity in care and
involvement, including escalating the
prepare the person for when the episode issue to ensure the safety of the person if
of care ends necessary
c. avoid the potential conflicts, risks, and i. avoid expressing personal beliefs to
complexities of providing care to those people in ways that exploit the person’s
with whom they have a pre-existing non- vulnerability, are likely to cause them
professional relationship and ensure that unnecessary distress, or may negatively
such relationships do not impair their influence their autonomy in decision-making
judgement. This is especially relevant for (see the NMBA Standards for practice), and
those living and working in small, regional or
j. not participate in physical assault such as
cultural communities and/or where there is
striking, unauthorised restraining and/or
long-term professional, social and/or family
applying unnecessary force.
engagement
The following are examples of boundary
d. avoid sexual relationships with persons with
issues for both nurses and midwives.
whom they have currently or had previously
entered into a professional relationship. 1. Small communities
These relationships are inappropriate The QNMU recognises that many nurses and
in most circumstances and could be midwives work in small communities and may
considered unprofessional conduct or know some of the patients who present for
professional misconduct care.

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Variables such as the care setting, The codes and guidelines do not specify a
community influences, client needs, nature of set period of time which must pass before it
the therapy provided, age of the client and would not be considered unacceptable for a
degree of involvement affect the delineation of nurse to form a relationship with a patient.
behavioural limits.
In a matter before QCAT (NMBA v Dyason
All these factors must be considered when [2011] QCAT 423), the panel considered a case
establishing boundaries; and all contribute to where a nurse working in a prison formed a
the complexity of professional boundaries. relationship with a prisoner.
The difference between a caring relationship
The nurse had stopped caring for the patient
and an over-involved relationship is narrow.
soon after the relationship commenced.
A professional living and working in a remote
The QCAT panel accepted that the evidence
community will, out of necessity, have business
suggested that it was a consensual and
and social relationships with people to whom
genuine relationship.
they are providing care.
The nurse sought to draw a distinction based
Setting appropriate standards is very
on whether her relationship with the prisoner
difficult. If they do not relate to real life, these
standards may be ignored by the nurse or was physical and whether she was working in
simply may not work. the unit at the time it became physical. QCAT
commented that:
However, the absence of consideration
of professional boundaries places person “While these matters might mitigate the
receiving care and the nurse at risk. conduct, they do not necessarily determine
whether the relationship was improper.
2. Sexual relationships
Sexual relationships between nurses, and Even when a sexual relationship
midwives, and persons with whom they commences after the therapeutic
have previously entered into a professional relationship ends, it is improper if there is any
relationship are inappropriate in most suggestion the practitioner has exploited a
circumstances. dependency created during the professional
relationship”.
Such relationships automatically raise
questions of integrity in relation to nurses In that matter, the nurse’s registration
exploiting the vulnerability of persons who are was cancelled, and she was prohibited
or who have been in their care. from reapplying for registration for at least
18 months, with other conditions imposed
Consent is not an acceptable defence in the
regarding education and counselling.
case of sexual or intimate behaviour within
such relationships. 3. Personal relationships and friendships
The patient pursuing or initiating the Professional boundary issues can arise
relationship or contact is not a defence. It where the nurse and or midwife has developed
is the nurse’s responsibility to maintain the a personal relationship or a friendship with
professional boundary. patients, or former patients.

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a gift or benefit, the following guidelines apply

to nurses and midwives:
■■ may accept token or inexpensive gifts
offered as a gesture of appreciation, and
not to secure favour. They do not accept
gifts that are more than a token; nor do
they accept gifts of cash, other than a
negotiated fee for service when in private
practice
■■ in employment report the acceptance of
the gift to their supervisors and seek their
agreement to retain the gift; and
■■ take all reasonable steps to ensure that
neither they nor their immediate family
members accept gifts or benefits an
impartial observer could view as a means of
securing the nurse’s influence or favour.
The nurse/midwife-patient relationship isn’t Individual organisational policy should
a friendship; it’s a therapeutic relationship decide the value at which items need to be
directed by the patient’s/woman’s health needs. officially declared. Gifts such as chocolates or
4. Gifts and benefits flowers are generally acceptable.
Another area in which professional The process of declaring gifts received

boundary issues often arise is in relation to prompts nurses and midwives to consider the
acceptance of gifts or benefits from patients issue of gifts and professional conduct and
or their families. acts as a stimulus to discussion around what is
appropriate and what is not.
Nurses and midwives recognise their
professional position and do not accept gifts In a matter which was considered by the
or benefits that could be viewed as a means of Queensland Court of Appeal (Fletcher v
securing the nurses’ and or midwifes’ influence QNC [2009] QCA 364) — after first being
or favour. considered by the former Queensland Nursing
Tribunal and then by the District Court — a
Nurses and midwives do not allow the offer
nurse inherited a large sum of money under a
of any gift or benefits to change the way
former patient’s will.
they work or make decisions, working on the
general presumption that they do not accept The nurse declined to give up her
any gifts or benefits. entitlement despite request by her employer
and by the patient’s largely estranged family.
Recognising the reality of people wishing to
demonstrate their appreciation for care by The nurse had initially provided community
providing an acknowledgement in the form of care to the patient, but later continued to visit

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the man in hospital and in hospice care, and Nurses and midwives must be careful to
attended to matters for him, despite the care ensure that their relationships with patients/
relationship ending. the woman remain professional, rather than
The former Queensland Nursing Council personal.
alleged that the nurse had engaged in What can happen if you breach
unsatisfactory professional conduct, and that professional boundaries?
she had abused her position of influence and In serious cases, nurses and midwives
trust in relation to the patient in that she had, may be liable for disciplinary action brought
amongst other things, involved herself in the by the NMBA for unprofessional conduct or
patient’s affairs to such an extent there was professional misconduct.
a risk that the patient could become unduly
Disciplinary matters are brought in the
influenced by the nurse in circumstances
Queensland Civil and Administrative
where the nurse had failed to take appropriate
Tribunal (QCAT). QCAT has the power to
steps to make it clear to the patient that the
suspend or cancel a nurse’s or midwife’s
therapeutic relationship had come to an end,
that she had failed to take steps to ensure registration.
clarity in her relationship with the patient, and Nurses and midwives brought before QCAT
failed to relinquish her entitlement under the in disciplinary matters may also be required
will. to personally pay the legal costs incurred
The nurse’s registration was cancelled, by the NMBA, which are usually in excess of
and she was prohibited from reapplying for $10,000.
registration for two years. The Health Ombudsman can also take
Nurses should also not enter into any action, including the issuing of a prohibition
financial transactions with patients (other order that can prevent a person from
than as part of a contract for the provision of providing any form of health service, including
services). nursing, midwifery, assisting with nursing or
personal care work.
In a matter considered by QCAT (NMBA
v Farley [2011] QCAT 162), a nurse who had Professional Practice Guidelines —
borrowed money from a patient and a friend of mandatory reporting
the patient was suspended from practice and The National Law requires practitioners,
allowed to return to practice after 6 months and employers and education providers to report
after she had complied with certain conditions ‘notifiable conduct’, as defined in section
regarding counselling and education. 140 of the National Law, to the Health
Ombudsman in order to prevent the public
QCAT commented that the nurse could not
being placed at risk of harm.
compartmentalise her relationship with the
patient between personal and professional These Professional Practice Guidelines
aspects. QCAT found that the nurse had explain how the Health Ombudsman and the
engaged in misconduct in a professional Boards (including the NMBA) will interpret
respect. these mandatory notification requirements.

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They will help practitioners, employers The aim of the mandatory notification
and education providers understand how requirements is to prevent the public from
to work with these requirements — that is, being placed at risk of harm.
whether they must make a notification about
The intention is that practitioners notify
a practitioner’s conduct and when.
the Health Ombudsman if they believe that
The threshold to be met to trigger the another practitioner has behaved in a way
requirement report notifiable conduct which presents a serious risk to the public.
in relation to a practitioner is high and
The requirements focus on serious
the practitioner or employer must have
instances of substandard practice or
first formed a reasonable belief that the
conduct by practitioners, or serious cases of
behaviour constitutes notifiable conduct.
impairment, that could place members of the
public at risk.
For students, the requirements focus on
serious cases of impairment of students. That
is, the requirements focus on behaviour that
puts the public at risk of harm, rather than not
liking the way someone else does something
or feeling that they could do their job better.
Similarly, if the only risk is to the practitioner
alone, and there is no risk to the public, the
threshold for making a mandatory notification
would not be reached.
For example, in a case where the risk is
clearly addressed by being appropriately
managed through treatment and the
practitioner is known to be fully compliant
with that, mandatory notification would not
be required.
This is reinforced in the Queensland
National Law which contains a partial
exemption to mandatory reporting.
The relevant provision confirms that if
you are providing treatment (nursing care)
to the person and they are not creating a
substantial risk of harm to the public, or
engaging in professional misconduct, then
you are not required to make a notification or
complaint.

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Re-entry to practice The outcome of this assessment will

The role of the National Board, the NMBA, is determine whether the person is required to
to protect the public by ensuring that anyone complete:
who is registered is safe and competent to 1. a Board-approved supervised practice
practise. program
A key requirement is that the nurse and/ 2. a Board-approved re-entry to practice
or midwife is able to demonstrate that program or
they meet the Board-approved national 3. requisite studies in a re-entry to practice
competency standards for the Enrolled pathway within a Board-approved entry
Nurse, Registered Nurse or Registered to practice program of study leading to
Midwife. initial registration, as identified by a Board-
All applicants for registration are required approved education provider following
to demonstrate that the relevant national recognition of the individual’s prior learning.
competency standards have been met. Members who seek to be registered and
This policy is to be read in conjunction have not been registered or engaged in clinical
with the Board’s registration standards or non-clinical practise for more than five years
and, in particular, the recency of practice should contact the QNMU for assistance.
and continuing professional development Social media policies
registration standards for nurses and When using social media, nurses and
midwives. midwives should remember that the National
The Board-approved recency of practice Law, the NMBA Code of Ethics and Codes of
registration standard applies to nurses and Conduct and the guidelines for advertising
midwives when they apply for renewal of regulated health services (the advertising
registration each year. guidelines) apply.
Persons who were registered nurses or Nurses and midwives should only post
midwives in Australia but have not practised information that is not in breach of these
in the profession for a period of five years or obligations by:
more will be required to undergo an individual ■■ complying with professional obligations
assessment of their application. ■■ complying with confidentiality and privacy
This assessment will be based on the obligations (such as by not discussing
previously-registered nurse and/or midwife’s: patients or posting pictures of procedures,
case studies, patients, or sensitive
■■ qualifications (including both
material which may enable patients to be
undergraduate and postgraduate nursing
identified without having obtained consent
and/or midwifery studies)
in appropriate situations), presenting
■■ professional practice history and information in an unbiased, evidence-
■■ length of time away from practising in the based context and
profession/s. ■■ not making unsubstantiated claims.

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Coronial matters ■■ a cause of death certificate was not issued

Nurses and midwives should expect to or is not likely to be issued or
come into contact with the court system at ■■ significantly for nurses and midwives, the
some point in their working lives. The court death was not the reasonable expected
you are most likely come into contact with is outcome of the health procedure.
the Coroners Court.
In investigating a death the coroner must
The Coroners Court is different to other make findings about the identity of the person
courts because a matter heard is conducted and how, when and what caused the person
more as an investigation than an adversarial to die.
trial. A coroner can conduct the inquiry as
The coroner is also encouraged to make
they see fit.
recommendations when information from
Under the Coroners Act 2003 the coroner an inquest is relevant to public health and
has the power to investigate reportable safety, the administration of justice, or
deaths. A reportable death occurs when: preventing similar deaths from happening in
■■ the identity of the person is unknown the future.
■■ the death was violent or unnatural The QNMU’s professional indemnity

insurance (PII) policy will cover the costs of
■■ the death happened in suspicious
legal representation for members required to
circumstances
appear at coronial inquests.
■■ the death occurred in custody
You should always seek advice from
■■ the death occurred in care the QNMU whenever you are required to

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participate in a coronial process. Usually This is a prime example of where the

the first people to contact you will be the interest of an employer diverged from that of
police who are empowered under the nursing staff and highlights the importance of
Coroners Act and the Police Powers and seeking independent advice.
Responsibilities Act to assist the coroner in
The QNMU is aware of many cases where
their investigations.
a nurse has elected to accept representation
You are entitled, under the Police Powers from their employer only to end up with the
and Responsibilities Act, to seek legal advice coroner making critical findings regarding
before participating in an interview with a their practice.
police officer assisting the coroner.
This could result in civil liability for the
You should also carefully consider nurse or, most commonly, the nurse being
whether you should obtain your own legal reported to the Nursing and Midwifery Board
representation rather than rely upon legal of Australia.
representation which may be offered to
you by your employer, as often the interests Open disclosure
of your employer will diverge from your The Open Disclosure Standard is a national
professional interests as a nurse or midwife. standard for Australian public and private
Under the QNMU’s professional indemnity hospitals which provides a framework for
insurance cover, which is a benefit of QNMU open communication following an adverse
membership, legal representation can be event in health care.
provided to members. It was first published in 2003 by the former
There are good reasons for you Australian Council for Safety and Quality in
considering whether you require Health Care (now the Australian Commission
independent legal representation. In on Safety and Quality in Health Care).
the case of the Inquest into the Death of The preface to the standard summarises its
Margaret Anne Winters, the Department of aim as:
Health in the Northern Territory essentially
to promote a clear and consistent
tried to blame nursing staff for the death
approach by hospitals (and other
of an elderly patient in the Royal Darwin
organisations where appropriate) to open
Hospital.
communication with patients and their
The Australian Nursing and Midwifery nominated support person following an
Federation (the QNMU is the Queensland adverse event. This includes a discussion
branch of the ANMF) successfully represented about what has happened, why it
the nurses during the inquest. happened and what is being done to
The coroner ultimately found that prevent it from happening again. It also
deficiencies in hospital management, aims to provide guidance on minimising
particularly poor staff to patient ratios and the risk of recurrence of an adverse
restrictions on hiring additional staff, were the event through the use of information
primary cause of the patient’s death. to generate systems improvement and

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Open disclosure involves the open

discussion of issues following an
adverse incident in health care...
promotion of a culture that focuses on In January 2005 the Australian Health

health care safety. Ministers Advisory Council endorsed an open
disclosure implementation plan that had
Open disclosure involves the open
been developed by the Australian Council for
discussion of issues following an adverse
Safety and Quality in Health Care.
incident in health care and contains a number
of elements: an expression of regret, the This plan involved the piloting of the
explanation of what has occurred and likely standard in a number of public and private
consequences, and what is happening to hospitals across the country.
manage the consequences of the particular In November 2007 an evaluation report
incident and prevent similar incidents from of the pilot project made a number of
occurring again. recommendations to improve the current
The objective is to promote improved safety approach to disclosure of, and dealing with,
and quality in health care. adverse events in health care.

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A particular area highlighted in this b. remedial measures that could

evaluation was the legal and insurance be implemented to prevent a
implications of open disclosure. recurrence of a similar event may
State and territory health departments be identified.
have differed in their approaches to open 2. However, a root cause analysis or
disclosure. In Queensland the Patient Safety RCA of a reportable event does not
Unit (operating under the auspices of the include —
Department of Health) was formed early in
2005 to take a lead role in promoting patient a. investigating the professional
safety initiatives in both the public and private competence of a person in relation
sectors. It is now called the Patient Safety to the event; or
and Quality Improvement Service (PSQIS). b. finding out who is to blame for the
happening of the event.
Significant resources are available from
In 2007, changes were made to various
the PSQIS website on open disclosure
and patient safety generally at pieces of Queensland legislation to create
https://clinicalexcellence.qld.gov.au/ a statutory framework to facilitate the use
priority-areas/safety-and-quality of RCA in Queensland public and private
health services as well as the Queensland
A particular area of activity for the PSQIS Ambulance Service.
has been the provision of training for health These legislative changes were necessary
professionals on the Human Error and Patient to afford greater legal protection to health
Safety (HEAPS) program and Root Cause
professionals participating in RCAs. Section
Analysis (RCA).
38H of the Health Services Act provides:
The aim of the HEAPS program is to move
Participation in RCAs is voluntary.
away from a culture of blame towards a
However, the information provided during
culture of learning, improving and increased
an RCA can be provided to certain other
patient safety.
bodies.... RCA is not an appropriate tool
An RCA is a systematic analysis of an and must not be used to investigate
adverse incident focusing on what happened, allegations of a ‘Blameworthy Act’ or
why it happened and how it can be prevented concerns about the performance of an
from happening in the future.
individual practitioner. A blameworthy
Section 38H of the Health Services Act act means an intentional unsafe act or,
defines ‘root cause analysis’ as follows: deliberate patient abuse or, conduct that
1. Root cause analysis or RCA, of a constitutes a criminal act.
reportable event, means a systematic The QNMU supports the national safety
process of analysis under which — and quality agenda and encourages nurses
a. factors that contributed to the and midwives to take a lead role in processes
happening of the event may be that aim to improve safety and quality in
identified; and health service delivery in Australia.

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However, as there are outstanding legal Irrespective of what the Health

and insurance implications associated Ombudsman decides, written notice of
with open disclosure (as highlighted in the the decision is to be provided to both the
2007 evaluation of this program) QNMU complainant and the nurse within seven days
members should contact the QNMU prior to of receiving the complaint 1.
participating in an RCA or open disclosure The Health Ombudsman has the option
process. of retaining and actioning the complaint, or
This will ensure that the QNMU has a record referring the matter (or part of the matter) to
of the matter and can provide advice to AHPRA for consideration and action by the
members as required. Members should also National Board.
review Chapter 5: Mandatory reporting.
Health Ombudsman processes have
Office of the Health Ombudsman strict timelines for responding to
complaints and extensions will not
From 1 July 2014, a new the Office of the
be granted. If you are issued with a
Health Ombudsman (OHO) began operations
notice from the Health Ombudsman,
as Queensland’s independent health
you should immediately contact the
complaints agency, replacing the Health
QNMU for advice.
Quality and Complaints Commission.
OHO was created in August 2013 with the
Drugs and poisons regulations
passing of the Health Ombudsman Act 2013
Health (Drugs and Poisons) Regulation
and has more extensive powers than the 1996
former Commission.
The Health Act 1937 governs all dealings
From 1 July 2014, all health service with drugs, poisons and controlled substances
complaints now go to the Health in Queensland.
Ombudsman, including complaints about Part 4 of the Act includes a power to
individual practitioners. make regulations about drugs and other
If a complaint is submitted to the Health substances.
Ombudsman by a patient, family member, The Health (Drugs and Poisons) Regulation
staff member or other person regarding 1996 is made pursuant to the Act and
your work as a health service provider, the establishes controls over dealings with drugs
complaint will be initially assessed by the and poisons.
Office of the Health Ombudsman in the same
Under the ‘carer’ provisions of the
way for both registered and unregistered
regulation, Assistants in Nursing or Personal
practitioners.
Care Workers working in aged care facilities
The Health Ombudsman must decide within do not need an endorsement to help another
seven (7) days to accept a complaint and take person to take their dispensed medications
relevant action, or decide to take no further if the person asks the AIN for help, and if the
action in respect of a complaint. AIN helps the person to take their dispensed

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The carer provisions do not

permit AINs or Personal Care
Workers to possess scheduled
drugs and poisons.
medication according to the directions on the The carer provisions do not permit AINs or
label of the medication’s container. Personal Care Workers to possess scheduled
drugs and poisons.
The QNMU’s interpretation of the law at
this time is that the request for help must be Unfortunately the carer provisions do not
made personally by the person at the time contemplate the standards required in the
help is needed to take a medication. professional practice of nursing.
It follows that the person seeking assistance To do that, we must consider two other
has the cognitive capacity to know what the pieces of legislation that are relevant to the
medication is, why it is needed and when. administration of medicines in aged care.
It can only extend to medication which Firstly, the Aged Care Act 1997 establishes
has physically been supplied as a dispensed the Quality of Care Principles, which prescribe
medication for that person before the request that aged care facilities must comply with all
for help is made and while the medication is in relevant legislation, regulations, professional
the possession of that person. standards and guidelines.

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In October 2012 the Commonwealth Registered Nurses are expected to be

Department of Health and Ageing published aware of professional standards relevant to
the Guiding Principles for Medication their context of care and to incorporate them
Management in Residential Aged Care into their practice.
Facilities.
This in turn means that the Registered
The ANMF, in conjunction with the Royal Nurse must be aware that the carer
College of Nursing, also developed Nursing provisions can be incorporated into
Guidelines: Management of Medicines in Aged professional practice only when the person
Care as a resource for aged care workers. It seeking assistance is able to self-medicate.
is available under the professional guidelines
Workplace policies related to medication
tab on the ANMF website.
management must comply with legislative
These guidelines state that, where the requirements, professional standards and
aged care recipient is unable to self- guidelines, and nursing staff are required to
medicate, the medication should be given adhere to these policies.
by a Registered Nurse or an Enrolled Nurse
However, the Australian Nursing and
(without notation).
Midwifery Accreditation Council (ANMAC)
This means that Registered Nurses must state that nurses cannot assume that all
ensure that Assistants in Nursing and workplace policies comply with relevant
carers assist with medication only where the legislation, standards and guidelines.
resident is competent to self-administer their
Nurses must critically analyse policies to
medicines and seeks help to access it.
ensure their compliance, or otherwise raise
The QNMU believes that the nursing issues of non-compliance with the employer.
professional standard is that Queensland’s
Whenever carers are assisting with
carer provisions are only enlivened
medication outside of this standard, the
(professionally) when the person seeking
registered nurse could be engaging in
assistance with medication has already been
unprofessional conduct.
assessed as able to self-medicate.
This is because the registered nurse ‘on the
Secondly, the Health Practitioner
floor’ is responsible for deciding who provides
Regulation National Law Act 2009
care and they must ensure that professional
establishes the Nursing and Midwifery Board
standards are applied.
of Australia (NMBA), which in turn develops
codes and guidelines for the profession. Practising in different classifications
These codes and guidelines describe the of nursing from those for which you
limited role of the carer in nursing activities are trained or training
and prescribe that the Registered Nurse Enrolled/Registered Nurses employed as
is the person responsible for ensuring that assistants in nursing
professional standards are followed in There is no barrier for Enrolled Nurses and
relation to evidenced-based practice and the Registered Nurses to work as Assistants in
delegation and supervision of carers. Nursing but there are professional and ethical

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dilemmas that must be carefully considered Concurrent Registration as a Registered

by Registered and Enrolled Nurses before Nurse and Enrolled Nurse
undertaking employment as an Assistant in Prior to the introduction of the Health
Nursing. Practitioner Regulation National Law Act
If a Registered or Enrolled Nurse chooses 2009 (National Law) an individual nurse in
to undertake work as an Assistant in Nursing Queensland could only be a Registered Nurse
there may be a professional expectation that or Enrolled Nurse, they could not be both at
could expose the nurse to risk. the same time.
For instance, as a Registered or Enrolled When the National Law was originally
Nurse you may identify a problem with a introduced transitional arrangements
patient that requires immediate action to meant nurses could be registered as both an
avert an adverse outcome for a patient. Enrolled Nurse and a Registered Nurse, but
The NMBA may seek an explanation from on 31 May 2014, nurses with dual registration
you about why you did not take appropriate had to elect to be registered as either an EN
action based on your professional knowledge or RN.
and expertise as a Registered or Enrolled However, the NMBA decided that nurses
Nurse to either prevent or limit the effects of with concurrent registration could hold both
an adverse incident.
registrations at the same time and work as
Previously the QNC recommended that either a Registered or Enrolled Nurse and this
if a nurse is placed in this situation, then it remains the case.
is important for them to be aware of the
Members with concurrent registration
reporting channels available in the workplace.
must keep in mind that they must maintain
The nurse must report concerns to a compliance with the registration standards
senior nurse and document their concerns for both divisions.
appropriately.
Enrolled Nurses undertaking an
If the nurse has engaged in an activity
undergraduate nursing degree
that falls outside the scope of practice of an
An Enrolled Nurse is permitted to continue
Assistant in Nursing and this results in an
practising as an EN while undertaking study
injury to the patient then the individual nurse
may be held personally liable. to become a RN.
Furthermore, if the nurse has acted outside The Enrolled Nurse is entitled to make a
the scope of their employment, the employer decision about when they wish to become
may decline to indemnify the nurse. registered.
If you are an RN or EN it would be prudent For example, if a currently employed

to clarify potential issues with a QNMU legal Enrolled Nurse secures employment
or professional officer and the NMBA before as a graduate Registered Nurse with a
undertaking a position as an Assistant in commencement date of three months post
Nursing. completion of studies, the nurse can continue

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to work as an Enrolled Nurse until they are Some years ago a working party was
officially registered as an RN. convened with the QNMU, Queensland Health
and the then Queensland Nursing Council at
However, from 31 May 2014, an Enrolled
the request of Directors of Nursing to explore
Nurse will not be able to continue working as
issues associated with the employment of
such once they have been entered into the
student nurses.
Register as a Registered Nurse (RN).
A position description was developed and
Student nurses employed as Assistants a title ‘Undergraduate Nursing Assistants’
in Nursing in acute wards/units agreed.
Student nurses often seek employment as
By doing this, the student nurses would
Assistants in Nursing (AIN) in health and aged
then be identified as being in a position to
care settings. Issues can arise with respect to
undertake responsibilities within this role.
scope of practice concerns, especially when
these students are employed as AINs in acute The QNMU believes this could be considered
care facilities where patient acuity is usually as an option to employ student nurses.
more complex.
Substitute decision making
Registered Nurses and student nurses must
be vigilant in delegation and the acceptance This section draws on ‘Chapter 17 –
of delegation as it may impact on the student Laws Relating to Individual Decision
nurses obtaining registration. Making’ in The Queensland Law
Handbook: Your Practical Guide to the
The QNMU therefore advises the following
Law (9th ed.), Caxton Legal Centre,
for student nurse employment:
Brisbane, 2007.
1. Student nurses employed as AINs must
work within the job description of that In this section we will briefly look at what
position. happens when an adult is unable to make
decisions for themselves, particularly
2. Registered Nurses who delegate duties
decisions relating to their health.
to an Assistant in Nursing must know
their level of competency. The Director of A person has an impaired decision making
Nursing cannot make delegations on behalf capacity if they are unable to understand the
of the individual Registered Nurse. nature and effect of the decision, unable to
decide freely and voluntarily, and unable to
3. The QNMU is aware of facilities where the
communicate the decision in some way.
Director of Nursing has employed student
nurses as AINs. The QNMU’s position is that Importantly, the state’s Guardianship and
the role of an AIN in an acute care facility Administration Act 2000 provides that an
is limited greatly in direct patient care. The adult is presumed to have capacity to make a
Registered Nurse delegating duties to the decision unless incapacity for that particular
AIN must be fully aware of the implications decision is established.
of inappropriate delegation to an AIN in an Legislation in Queensland has been
acute care facility. established to enable adults to plan for

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circumstances in the future where they may government’s Office of the Public Guardian
lack capacity to make decisions. steps in.
The Powers of Attorney Act 1998 sets It is important that nurses and midwives
out in detail how a power of attorney can have a clear understanding of who has the
be established and what can and cannot be authority to make decisions about the health
done by someone authorised under a power of the individuals they are caring for.
of attorney.
Criminal history checks
To be valid, a power of attorney must be in
In a response to publicity around
the form of a properly completed document.
assaults in aged care facilities, the federal
In health matters, a person authorised under government has introduced legislation
a power of attorney is able to make decisions making it compulsory for all employees of
regarding the health care of an individual. aged care facilities to undergo criminal
history checks.
Such decisions can include the care,
treatment, service or procedure for the The legislation requires that some offences
health of that individual, in order to diagnose, will disqualify people from being able to gain
maintain or treat the individual’s physical or employment in aged care. Other offences will
mental condition. not.
This can occur in circumstances where the It is also now a requirement under national
individual’s health care is conducted by or registration of health practitioners that
under the supervision of a health care provider. applicants undergo criminal history checking.
An individual can also make an advanced While compulsory criminal checks appear
health directive, which is a document in which to be an increasingly popular policy response
an individual can give directions or make by governments in human services, there are
decisions about their further health care in also a number of areas where employers are
able to exercise discretion in requiring criminal
the event they lose capacity to make those
history checks and in what they do with any
decisions at the time.
information they obtain.
An advanced health directive will override
The form of criminal history check, the
the general authority provided in a power of
information obtained, how it is retained and
attorney.
the way the information can be used varies
Where an individual with impaired capacity from sector to sector.
has not appointed a power of attorney or
The QNMU is concerned about the way
made an advanced health directive then a
in which employers can potentially use
statutory health attorney is authorised to
information obtained through criminal history
make health care decisions.
checks. We are also concerned about the
Usually this is the next of kin or other close protection of employees’ privacy and rights in
person. If no appropriate person is available circumstances where criminal history checks
then the Adult Guardian from the Queensland are required.

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For example we are particularly concerned offence could subsequently be found guilty or
that some employers in aged care may take not guilty, or the charges could be dropped or
action against employees who have been not yet finalised.
convicted for offences other than those which Some criminal history checks take into
are related to the inherent requirements of account charges as well as convictions.
their job.
An investigation
We are also concerned about the keeping of
This is where an individual has been
records and access to them.
investigated in respect of an offence but
What is a criminal history? where no charges have been laid.
The concept of what is a criminal history Charges may not have been laid for a
varies depending on where an employee is variety of reasons, one of which is that a key
seeking to work and the relevant legislation witness (for example a child victim in a sexual
governing their employment. It can include assault case) was unable or unwilling to give
the following: evidence. Some criminal history checks also
A conviction look at investigations.
This is where a court has found that an Specific requirements for criminal history
individual has committed an offence, either checks
after a trial or upon a plea of guilty. Public Service generally and Queensland
Health other than aged care facilities
There are a variety of offences for which
a person may be found guilty, from minor The Public Service Act 1996 provides
offences such as public nuisance type offences that the chief executive of a department
(these are generally known as ‘simple offences’) may decide that because of the nature of
to more serious offences, which could result in particular duties to be performed in the
a period of imprisonment (these are generally department, regard should be had to the
known as ‘indictable offences’). criminal history of anyone performing those
duties.
In Queensland (as in other states) some
offences on an individual’s record lapse after In such circumstances written consent from
a period of time as a consequence of the an individual enabling the chief executive to
Criminal Law (Rehabilitation of Offenders) Act obtain a person’s criminal history may be
1986. These are called ‘spent convictions’. sought.
In some employee criminal history If the person refuses then they need not be
checks spent convictions are not included, considered further for the position.
however in other circumstances there are These criminal history checks are subject to
specific exemptions from the Criminal Law the Criminal Law (Rehabilitation of Offenders)
(Rehabilitation of Offenders) Act 1986. Act 1986.
A charge One department that can require criminal
This is where a person has been charged history checks is of course Queensland
with an offence. A person charged with an Health.

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In addition, Queensland Health employees

working in aged care facilities are now subject
to criminal history checks under changes to
the federal legislation governing aged care
(Queensland Health aged care employees Queensland Health employees
should look at the requirements in aged care
set out below). are required to notify their
In relation to the criminal history checking manager in writing if they are
regime under national registration and
charged with an indictable
accreditation. Refer to Chapter 3: National
registration of nurses and midwives on page 17. offence or if committed of any
The criminal history unit located within offence by a court.
Queensland Health is responsible for
managing criminal history checks including
result in a police certificate that has currency
the storage of any records.
for three years.
For employees in Queensland Health, other
The key aspects of the requirements are:
than aged care, criminal history checks are
subject to the Criminal Law (Rehabilitation of ■■ all new employees must have had a
Offenders) Act 1986. criminal history record check
A Queensland Health industrial relations ■■ all existing employees must have had a
manual has recently been reissued on the criminal history record check
subject of Criminal History Checking Policy ■■ all volunteers must have had a criminal
and Procedures. history record check
Queensland Health employees are required ■■ an approved provider must not employ (or
to notify their manager in writing if they use as a volunteer) anyone who has been
are charged with an indictable offence or if convicted of murder or sexual assault; or
committed of any offence by a court. has been convicted of, and sentenced to
Aged care imprisonment for any other form of assault
Requirements for national criminal history ■■ the checks are subject to Criminal Law
record checks for relevant staff in aged care (Rehabilitation of Offenders) Act 1986
came into effect from 1 March 2007.
■■ compliance with the requirements for
The requirements effectively apply to all obtaining police certificates will be
staff and volunteers in aged care services monitored by the Aged Care Standards
subsidised under the federal Aged Care Act and Accreditation Agency as a part of its
1997. normal audit process
This includes both government and non- ■■ approved providers must comply with the
government aged care facilities. The criminal Privacy Act 1988 (see Privacy protections
history record checks, once conducted, will on page 77).

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There are a number of issues associated The QNMU is extremely concerned that
with the introduction of criminal history some employers may take action against
record checks in aged care that members employees whose checks reveal a former
need to be aware of. conviction that is not one of those proscribed
as leading to a mandatory disqualification.
Who pays?
Some employers have already indicated that
Who meets the cost of criminal history they will do this.
checks is currently at the discretion of the
The QNMU believes that employers should
employer. The QNMU believes the employer
have an extremely comprehensive set of
should pay. Several employers have agreed
policies and procedures for dealing with these
to pay, including Queensland Health. Others
issues that have at their core the principles of
require their own employees to pay.
natural justice, freedom from discrimination,
Who owns the police certificate? and the inherent requirements of the job.
The QNMU believes the employee should
Working with children
own and retain the police certificate. Some
Recent changes to the Commission
larger employers are using an organisation
for Children and Young People and Child
called CrimTrac to conduct the criminal history
Guardian Act 2000 mean that nurses and
record checks. The QNMU understands that
midwives are no longer required to obtain
in these circumstances CrimTrac retains
blue cards.
ownership of the certificate.
Registered health professionals who
Who gets a copy of the police certificate? are providing services that relate to their
There is no requirement for employers professional duties will no longer require a
to retain a copy of the police certificate. blue card, regardless of where this service is
Employers are only required to keep records provided.
that enable the employer to demonstrate
If they wish to provide services which do
that for each staff member or volunteer there
not relate to their professional duties (for
is a police certificate that is not more than
example, volunteering with a youth group)
three years old. This can be achieved without
they will still be required to hold a blue card.
retaining a copy.
AINs are still required to obtain a blue card.
Who should do the checking of the police In Queensland most people who propose
certificate at the workplace?
to work in a paid or voluntary capacity
The QNMU believes a senior representative
(including students), or carry on a business,
of the employer should do the checking and
in a child-related area regulated by the
that the responsibility should not be delegated
Commission for Children and Young People
to administrative/payroll/junior HR staff.
and Child Guardian Act are required to
Can the employer take action against an obtain a blue card which is only issued after
employee for offences revealed other than a comprehensive criminal history check.
those that disqualify the employee from Virtually all organised activities involving
working in aged care? children are regulated by this Act.

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Registered health
professionals who
are providing services
that relate to their
professional duties will
no longer require a
blue card...
The blue card check is exempt from the non-government service provider in the
Criminal Law (Rehabilitation of Offenders) Act disability services area.
1986.
The criminal history check is exempt from
The criminal history record check Criminal Law (Rehabilitation of Offenders) Act
undertaken in relation to applicants for a 1986.
blue card is extremely extensive and includes
not only convictions, but may also extend to Non-compulsory criminal history checks
charges, the circumstances of an offence In addition to the areas outlined above,
where a person has a criminal history, and some employers have introduced their own
information concerning police investigations policies on criminal history record checks as
for serious sexual offences allegedly part of their pre-employment screening and
committed against children where the subject selection procedures.
was not charged.
It is the QNMU’s view that in such
Disability services circumstances employers should have an
The state’s Disability Services Act 2006 extremely comprehensive set of policies and
introduces compulsory criminal history procedures for dealing with these issues that
screening for all people engaged by a funded have at their core the principles of natural

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justice, freedom from discrimination, and the In accordance with NPP 10, an organisation
inherent requirements of the job. must not collect sensitive information (the
term ‘sensitive information’ is defined in
If an employer takes action against an
section 6 of the Act, and includes criminal
employee or prospective employee based on
record information) about an individual unless
their criminal record, where that record is not
one of a number of exceptions applies.
related to the inherent requirements of the
One of these exceptions applies where the
job, then they are potentially discriminating
individual has consented to the information
against that person.
being collected [NPP 10.1(a)].
It is possible to take a complaint of
Further, an organisation must not collect
discrimination based on a real or imputed
personal information about an individual
criminal record to the Human Rights and unless it is necessary for one or more of its
Equal Opportunity Commission. functions or activities (NPP 1.1).
Privacy protections Pursuant to NPP 1.3, at or before the
The Office of the Privacy Commissioner has time that an organisation collects personal
responsibilities under the federal Privacy Act information about an individual, or if that
is not practicable, as soon as practicable
1988.
thereafter, an organisation must take
This Act deals with the treatment of reasonable steps to ensure that the individual
individuals’ personal information by has been made aware of:
Australian, ACT and NT government agencies
■■ the identity of the organisation and how to
and many organisations in the private sector. contact it
Under the Privacy Act, 10 National Privacy ■■ the fact that he or she can get access to the
Principles (NPPs) regulate the way many information
private sector organisations treat personal ■■ the purpose for which the information is
information. collected
To summarise the coverage of the private ■■ the organisations (or the types of
organisations) to which the organisation
sector, the NPPs apply to organisations with
usually discloses information of that kind
an annual turnover of more than $3 million,
and
and to all private health service providers
■■ the main consequences (if any) for the
and businesses, which trade in personal
individual if all or part of the information is
information irrespective of turnover.
not provided.
You should note, however, that some acts Finally, if an organisation has collected
and practices are exempt from the NPPs. For criminal record information about an
example, in some circumstances, the handling individual in a legitimate manner, it may
of employee records in relation to current only use or disclose this information for the
and former employment relationships by an primary purpose of collection unless one of
employer is exempt from the NPPs. the exceptions set out in NPP 2.1 applies.

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Mandatory
reporting
M andatory reporting is where a person is

required by law to report to a relevant
authority particular matters, for example
Department of Health, which currently has
responsibility for aged care.
Reporting requirements
abuse of the elderly or a missing person or
suspected cases of child abuse and neglect. The Aged Care Act requires the approved
provider of an aged care service to report
The people mandated to report, and the allegations or suspicions of unlawful sexual
matters that must be reported, vary across contact or unreasonable use of force on a
the different states and territories. This section resident in an aged care facility.
covers:
The approved provider must make the
■■ aged care - compulsory reporting report as soon as reasonably practicable, and
■■ child protection – mandatory reporting in any case within 24 hours of an allegation
■■ NMBA – mandatory reporting guidelines being made, or when the approved provider
and reporting obligations starts to suspect a reportable assault.
■■ Queensland Health employees reporting Reports must be made to both the police
obligations. and the department within 24 hours of the
allegation being made, or from the time
Aged care
the approved provider starts to suspect, on
Compulsory reporting of suspected abuse reasonable grounds, that a reportable assault
of residential aged care residents
may have occurred.
The Aged Care Act 1997 (Commonwealth)
governs aged care services across Australia. Where an allegation of assault is made by a
The Act makes it mandatory for aged care resident there is a discretion for the approved
providers to report suspected abuse of provider not to report in limited circumstances.
residential aged care residents to both the For example, where the approved provider
police and to the Australian government forms an opinion that the alleged assault was

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Reports must be
made to both
the police and
the department
within 24 hours
of the allegation
being made...
committed by another care recipient, who use of force’. Guidelines published by the
had previously been assessed to be suffering Australian Department of Health indicate that
from a cognitive or mental impairment, the the term ‘unlawful sexual contact’ is intended
approved provider has a discretion not to to include any sexual contact, without consent,
report if a number of conditions are met. that is unlawful.
These conditions include a requirement that The guidelines indicate that the term is not
a resident behaviour management plan is intended to include situations where there is
developed by a qualified health professional no physical contact.
and put in place within 24 hours of the
For the full guidelines see
allegation or suspicion being raised.
https://agedcare.health.gov.au/
Appropriate health professionals allowed ensuring-quality/aged-care-quality-
to develop the behaviour management and-compliance/compulsory-
plan include registered nurses, medical reporting-for-approved-providers
practitioners and geriatricians.
The guidelines indicate that the term
What is a reportable assault? ‘unreasonable use of force’ is intended to
A reportable assault is defined in s.63- include assaults ranging from deliberate and
1AA(9) of the Aged Care Act as including violent physical attacks on residents to the use
‘unlawful sexual contact’ or ‘unreasonable of unwarranted physical force on a resident.

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05 Mandatory reporting
What are the approved providers’ reporting staff member is not disclosed to
responsibilities? anyone other than:
In addition to their specific reporting ■■ a police officer with responsibility to the
responsibilities, the legislation also requires area including the aged care facility
approved providers to take measures to
■■ the nominated delegate of the
require staff members to report any suspicion
Department
of suspected abuse of a resident.
■■ the approved provider’s key personnel or
The law also requires service providers
to report that a resident is absent without ■■ as otherwise required by law.
explanation (also known as a missing resident). Approved providers should develop
Staff members includes individuals who policies and processes aimed at meeting
provide care or other services in the aged care the compulsory reporting requirements and
facility. ensure all staff receive training about the
reporting requirements.
Nursing staff who are employed by nursing
agencies and who work in an aged care facility Approved providers are also obliged to
are covered by this definition. ensure that any staff member who reports
suspected resident abuse does not suffer any
A staff member may report to one or more
detriment or any threat to cause detriment
of the following: because they have made the report.
■■ the approved provider
■■ one of the approved provider’s key personnel
■■ another person authorised by the approved
provider to receive reports of suspected
reportable assaults
■■ a police officer with responsibility relating to
the area including the aged care facility
■■ the Department of Health.
The approved provider must identify who Approved providers are
is authorised to receive reports of suspected
reportable assaults and must let staff know also obliged to ensure
who the authorised people are.
that any staff member
A staff member may report directly to the
police or to the Department of Health. who reports suspected
If a staff member reports a suspected
reportable assault to the approved provider,
resident abuse does not
the approved provider must take reasonable suffer any detriment...
measures to ensure that the name of the

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What protections are in place for

those who report suspected abuse of a
resident?
The Aged Care Act includes protections
for staff who report alleged or suspected
assaults. In relation to a disclosure about
suspected abuse, a staff member will be
protected from:
■■ civil or criminal liability
■■ being victimised
■■ liability in an action for defamation
■■ having a contract, including an employment
contract, terminated.
A staff member who discloses information
about the suspected abuse will qualify for the
protections if:
■■ the person is a staff member of the The mandatory reporting requirements
approved provider of the facility in which and protections do not apply to aged care
the suspected abuse occurred, and residents, their families, visiting medical
practitioners, volunteers or visitors.
■■ the disclosure is made to one or more of the
people listed above, and Unexplained absences (missing residents)
■■ the person making the disclosure states If a resident is absent and the service
their name to the person they are reporting is unaware of reasons for the absence
to before making the report, and approved providers are required to report
the missing resident to the police within a
■■ the person making the disclosure has reasonable timeframe so an appropriate
reasonable grounds to suspect that a response and action can be taken to locate
reportable assault has occurred and the resident.
■■ the person makes the report in good faith. This is required under section 25 of the
A staff member may also make an Accountability Principles 2014 as legislated by
anonymous or confidential report to the Aged the Aged Care Act 1997 (see section 63-1 (1)
Care Complaints Commissioner. However, the (m)).
protections outlined above will not apply in this
If a resident is absent from the service,
situation.
the absence is unexplained and the absence
has been reported to the police, approved
Visit the Aged Care Complaints
providers are required to tell the department
Commissioner’s website at
about the missing resident within 24 hours of
www.agedcarequality.gov.au
reporting the absence to the police.

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If an approved provider fails to meet Whenever this occurs, members should

compulsory reporting requirements the advise their superiors that the mandatory
department may take compliance action. obligation to report is upon the approved
provider, not individual staff members.
However, there is no requirement for
providers to report to the department if the How is compliance with the requirements
care recipient was returned to the service monitored?
before their absence was reported to police. The Australian Aged Care Quality Agency
But, providers must report to the is responsible for monitoring an approved
department if the police are aware of the provider’s compliance with the compulsory
care recipient’s absence or where the care reporting requirements (previously this work
recipient has been returned to the service by was done by the Aged Care Standards and
the police. Accreditation Agency).
Reporting to the Department of Health For more details visit

To report a suspicion or allegation made of a www.agedcarequality.gov.au
reportable assault, an approved provider must
within 24 hours: Child protection
■■ complete a reportable assault form or an Who is mandated to make a notification?
unexplained absence form and email to There are different child protection
compulsoryreports@health.gov or notification requirements in each state of
■■ call the compulsory reporting line on Australia.
1800 081 549. The groups of people mandated to notify
Note: it is the Department’s preference that their concerns, suspicions, or reasonable
a written form be submitted. grounds to the statutory child protection
authorities range from a limited number of
Since the introduction of mandatory specified persons in specified contexts in some
reporting in aged care in 2007, states through to every adult in other states.
the QNMU has been contacted by
Queensland has a list of particular
a number of members who have
occupational groups that may come into
become the subject of allegations that
contact with children who are required to
they have abused residents.
mandatorily report in certain circumstances.
Members should contact the QNMU In Queensland, the relevant legislation is the
before talking to the police or Child Protection Act 1999 and the Public
responding to an allegation to their Health Act 2005.
employer.
In Queensland, the groups of people having
Some employers have tried to discipline mandatory reporting obligations are:
members for not making a report of suspected ■■ registered nurses who become aware, or
assault to the Department. reasonably suspect during the practice of

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05
his or her profession that a child has been,

is being or is likely to be, harmed
■■ doctors who become aware, or reasonably
suspect during the practice of his or her
profession that a child has been, is being or
is likely to be harmed
■■ a teacher
■■ a police officer who, under a direction given
by the commissioner of the police service
under the Police Service Administration Act
1990, is responsible for reporting
■■ a person engaged to perform a child
advocate function under the Public
Guardian Act 2014
■■ an early childhood education and care What is required?
professional
If you become aware, or reasonably suspect
■■ officers and employees of the Department during the practice of your profession that a
administering the Child Protection Act child has been, is being or is likely to be harmed,
■■ a person employed in a Departmental care and, as far as you aware, no other nurse or
service (a care service to accommodate doctor has made a notification about the harm
children in the Department’s custody or or likely harm, the Public Health Act requires
guardianship or other children in need of that you immediately give notice of the harm or
protection) or licensed care service likely harm to the Chief Executive (Child Safety).
■■ an authorised person holding office under “Harm” is defined as any detrimental effect
the Child Protection Act 1999. of a significant nature on the child’s physical,
psychological or emotional wellbeing. It is
In addition to state and territory law, there
immaterial how the harm is caused — it can be
are provisions within federal legislation that
physical, psychological, or emotional abuse or
relate to mandatory reporting.
neglect or sexual abuse or exploitation.
Under the Family Law Act 1975, personnel
Action can be taken before the birth of a
from the Family Court of Australia and
child if the child may need protection after they
the Federal Magistrates Court also have
are born.
reporting obligations in all Australian
jurisdictions. The notice should include:
This includes registrars, family counsellors, a. the following information, to the extent the
family dispute resolution practitioners or nurse has it or can reasonably obtain it —
arbitrators, and lawyers independently ◆◆ the child’s name
representing children’s interests. ◆◆ the child’s date of birth

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◆◆ the place or places where the child lives yourself. There are short timeframes in which
◆◆ the names of the child’s parents this should occur.
◆◆ the place or places where the parents Section 130 of the National Law provides
live or maybe contacted and that health practitioners must give AHPRA
b. details of the harm or likely harm of which notice of certain ‘relevant events’, once they
the nurse is aware or that the nurse become aware of them.
suspects and In relation to registered health practitioners,
c. the nurse’s name, address and telephone a report must be made to AHPRA in the
number. following circumstances:
Failing to make a notification when required ■■ if the practitioner is charged with an

to do so could attract a substantial fine. offence that can be punished by 12 months
imprisonment or more (whether or not
Are notifiers protected? any period of imprisonment is likely—note
In most states, notifiers are explicitly that many offences fall into this category,
protected. In Queensland, the Child Protection including making a false declaration on your
Act provides that a person who, acting annual renewal or registration application) or
honestly, notifies authorities of their suspicion
■■ the practitioner is convicted of or the
that a child has been, is being or is likely to be
subject of a finding of guilt for an offence,
harmed, or an unborn child may be at risk of
able to be punished by any period of
harm after he or she is born, is not liable, civilly,
imprisonment (regardless of whether any
criminally or under an administrative process
period of imprisonment is imposed or any
for giving the notification or information.
conviction is recorded) or
Also, merely because the person gives the
■■ appropriate professional indemnity
notification or information, the person cannot be
insurance arrangements are no longer
held to have breached any code of professional
in place in relation to the practitioner’s
conduct or ethics, or departed from accepted
practice of the profession. (Financial
standards of professional conduct.
members of the QNMU have appropriate
There are obligations on the person professional indemnity insurance as part of
receiving the notification to keep the identity their membership) or
of the notifier confidential, except in certain
■■ the practitioner’s right to practise at a
limited circumstances.
hospital or another facility at which health
Nursing and Midwifery Board of services are provided is withdrawn or
Australia mandatory reporting restricted because of the practitioner’s
conduct, professional performance or
Obligation to report certain events to
AHPRA health or
In certain circumstances, you may be ■■ the practitioner’s billing privileges are
required to make a report to AHPRA about withdrawn or restricted under the
events that have occurred in relation to Medicare Australia Act 1973 because of

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the practitioner’s conduct, professional health, conduct or performance action against

performance or health or the practitioner or student.
■■ the practitioner’s authority under a law of If you are required to make a report to
a state or territory to administer, obtain, AHPRA, we strongly recommend you first seek
possess, prescribe, sell, supply or use a advice from the QNMU.
scheduled medicine or class of scheduled You are also required to tell AHPRA if you
medicines is cancelled or restricted or change address or principal place of practice,
■■ a complaint is made about the practitioner or if you change your name. This should be
to certain entities, such as Medicare, done within 30 days.
or entities having functions relating to
Obligation to report other health
professional services provided by health
practitioners to AHPRA or the Health
practitioners or Ombudsman
■■ the practitioner’s registration under the In some circumstances, a health practitioner
law of another country that provides for may be required to report another health
the registration of health practitioners is practitioner to AHPRA or the Health
suspended or cancelled or made subject to Ombudsman.
a condition or another restriction.
The general obligation
In relation to a student, a report must Under the National Law (section 141), a
be made to AHPRA in the following health practitioner, employer, or education
circumstances: provider who forms a reasonable belief that
■■ the student is charged with an offence able another health practitioner, or student, has
to be punished by 12 months imprisonment engaged in “notifiable conduct” is required to
or more (even if a period of imprisonment is make a report as soon as practicable.
unlikely — note that many offences fall into In Queensland, these reports are now made
this category) or to the Health Ombudsman, rather than to
■■ the student is convicted of or the subject of AHPRA.
a finding of guilt for an offence able to be The obligation applies across professions—for
punished by any period of imprisonment example, a nurse or midwife may be required to
(regardless of whether any period of make a report about a doctor, or vice versa. The
imprisonment is imposed or any conviction
is recorded) or
■■ the student’s registration under the law
of another country that provides for If you are required to make a
the registration of students has been
suspended or cancelled. report to AHPRA, we strongly
Health practitioners are required to make recommend you first seek
the reportto AHPRA within seven days of the advice from the QNMU.
event occurring. Failure to do this may lead to

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mandatory reporting obligations are the same b. engaged in sexual misconduct in connection
for each of the registered professions. with the practice of the practitioner’s
profession or
The National Law also provides for voluntary
reporting. The information below deals solely c. placed the public at risk of substantial
with health practitioners’ mandatory reporting harm in the practitioner’s practice of the
obligations. profession because the practitioner has an
impairment or
The threshold to require a health
practitioner to mandatorily report another d. placed the public at risk of harm because
health practitioner is high (see section below, the practitioner has practiced the
profession in a way that constitutes a
What is a reasonable belief?), and will only
significant departure from accepted
arise in certain limited situations (see section
professional standards.
below, What is notifiable conduct?).
If the issue is not any of the matters listed
If the matter is not “notifiable conduct” as
above, it does not need to be mandatorily
defined in the National Law, or the health
reported. While other matters may be
practitioner does not have the required
voluntarily notified, if the matter does not
“reasonable belief”, no mandatory report is
constitute “notifiable conduct”, it does not need
required. to be mandatorily reported.
The Boards for each of the health
What is a reasonable belief?
professions (such as the NMBA and Medical
The threshold to require a health
Board) have each issued comprehensive
practitioner to mandatorily report another
Guidelines for Mandatory Notifications,
health practitioner is high.
available on the AHPRA website which include
decision guides and flow charts. The guidelines state that “Making a
mandatory notification is a serious step to
Visit the AHPRA website prevent the public from being placed at risk of
www.ahpra.gov.au harm and should only be taken on sufficient
grounds”.
These guidelines provide good guidance to The guidelines also state:
health practitioners. The information below is
“A reasonable belief requires a
based on those guidelines, and the National
stronger level of knowledge than a
Law.
mere suspicion. Generally, it would
What is “Notifiable Conduct”? involve direct knowledge or observation
of the behaviour which gives rise to
“Notifiable conduct” is defined in the
the notification, or, in the case of an
National Law. Section 140 of the National Law
employer, it could also involve a report
defines notifiable conduct as where a health
from a reliable source or sources.
practitioner has:
Mere speculation, rumours, gossip or
a. practiced the practitioner’s profession while innuendo are not enough to form a
intoxicated by alcohol or drugs or reasonable belief.” (emphasis added)

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The guidelines also state that “a reasonable

belief has an objective element — that there
are facts that could cause the belief in a
reasonable person; and a subjective element
— that the person making the notification
actually has that belief”.
If the health practitioner does not have a
reasonable belief that another practitioner has
engaged in notifiable conduct, the mandatory
reporting obligation does not arise.
Types of notifiable conduct

1. Practice while intoxicated by alcohol or
drugs (section 140(a))
◆◆ There is no definition within the National
Law as to what constitutes intoxication.
However, the guidelines provide that
Boards such as the NMBA will consider
a practitioner to be intoxicated “where
their capacity to exercise reasonable
care and skill in the practice of the health
profession is impaired or affected as a
result of being under the influence of
drugs or alcohol”.
◆◆ Where a practitioner consumes drugs
or alcohol outside of their practice or the
work environment, and this consumption
does not interfere in their ability to
undertake their duties in the profession,
this does not constitute a ground for
mandatorily reporting the practitioner
under section 140(a) of the National Law.
◆◆ Remember, a practitioner must have a
“reasonable belief” that the practitioner
has practised the profession whilst
intoxicated before the mandatory
reporting obligation arises — gossip
and innuendo are not enough to form a
reasonable belief.

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2. Sexual misconduct in connection with the ◆◆ An example of a matter which may

practice of the profession (section 140(b)) require a notification is where a health
practitioner, as a consequence of
◆◆ If a health practitioner holds a
illness, has a cognitive impairment
reasonable belief that another health
which means that they cannot practice
practitioner has engaged in sexual
effectively.
activity with a current patient or
client, they will be required to make a ◆◆ Not every impairment needs to be
mandatory notification. In some cases, notified to AHRPA or the Health
engaging in sexual activity with a Ombudsman. If a practitioner’s
former patient, or relative of a patient impairment is being appropriately
may also constitute sexual misconduct managed, such that the public are not
in connection with the practice of the placed at risk of substantial harm, a
profession. Sexual misconduct could notification will not be required.
also include making sexual remarks, ◆◆ The Health Ombudsman Act amends
touching patients in a sexual way, or the mandatory reporting obligation
engaging in sexual behaviour in front of for treating health practitioners in
a patient. Queensland (this includes all types
3. Placing the public at risk of substantial of registered health practitioners,
harm in the practitioner’s practice of the including doctors, nurses, psychologists,
profession because the practitioner has an etc). The Health Ombudsman Act
impairment (section 140(c)) provides that the mandatory reporting
obligation does not apply in certain
◆◆ The National Law defines impairment
circumstances where one health
as a physical or mental impairment,
practitioner is treating another health
disability, condition or disorder (including
practitioner (in the same or a different
substance abuse or dependence)
profession).
that detrimentally affects or is likely
to detrimentally affect the person’s ◆◆ The legislation provides that:
capacity to practice the profession. ■■ when one health practitioner
◆◆ In order to be required to mandatorily (e.g. Nurse A) forms the required
report a fellow practitioner with an reasonable belief that another
impairment, a health practitioner must health practitioner (e.g. Nurse B) has
form a reasonable belief that the health engaged in notifiable conduct as a
practitioner poses a risk of substantial result of Nurse A providing a health
harm to the public. The Guidelines service to Nurse B and
provide that “substantial harm” would ■■ where Nurse A reasonably believes
mean “considerable harm such as a that the notifiable conduct relates to
failure to correctly or appropriately an impairment which will not place the
diagnose or treat because of the public at substantial risk of harm, and
impairment”. The test is high. is not professional misconduct.

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◆◆ Nurse A will not be required to make a a notification against a practitioner in a

mandatory notification to the Health different profession (e.g. a nurse against
Ombudsman about Nurse B. a doctor), the practitioner will need to
◆◆ In addition, mandatory notification will have a sufficient knowledge of that
not be required in the following cases: profession and its professional standards
to be able to make a judgment about
■■ the practitioner practices safely whether there has been a significant
■■ the practitioner’s employer has put departure from those standards.
safeguards in place to monitor the Where the notification is against
practitioner, which prevent the risk of someone in the practitioner’s own
substantial harm arising profession (e.g. a nurse against a nurse),
■■ the practitioner’s employer has forming this judgment may be more
provided reasonable adjustments straightforward.
to the way in which the health ◆◆ The departure from accepted
practitioner discharges their duties professional standards must be
to accommodate the practitioner’s significant. A notification should not be
impairment, such that the public are made based merely on the fact that one
not placed at risk of substantial harm professional differs from another health
■■ the practitioner is receiving practitioner in the way in which they
appropriate treatment which ensures discharge their duties.
the public are not placed at risk of ◆◆ In addition, the notifiable conduct must
substantial harm place the public at risk of harm as well
■■ the practitioner is appropriately as being a significant departure from
managing their own health condition accepted professional standards before
in a way that ensures the public are a notification is required.
not placed at risk of substantial harm ◆◆ This ground for notification does not refer
■■ the practitioner is not practicing, solely to the discharge of clinical skills. It
and will not return to practice until also relates to standards of professional
the health matter is appropriately behaviour.
managed. Exceptions
4. Placing the public at risk of harm because There a number of exceptions in relation to
the practitioner has practiced in a way that the mandatory reporting obligation.
constitutes a significant departure from
These exemptions include where a
accepted professional standards (section
practitioner is employed by a professional
140(d))
indemnity insurer, provides advice about legal
◆◆ Health practitioners may make a proceedings, or is exercising functions as a
mandatory notification against member of a quality assurance committee,
someone in their own profession, or in council or other similar body approved or
another profession. However, to make authorised under legislation.

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Employers should have a

policy and procedure in
place and provide training
to ensure compliance with
the mandatory reporting
requirement.
Another exception to the requirement to What protections exist for people making
mandatorily notify is where a practitioner mandatory notifications?
reasonably believes someone else has already The National Law provides protection to
made a notification (e.g. the practitioner’s health practitioners who mandatorily report
employer). another health practitioner, provided the
notification is made “in good faith”.
For example, if a practitioner has reported
notifiable conduct to their manager and The guidelines provide that good faith has
reasonably believes their manager has notified “its ordinary meaning of being well intentioned
the Health Ombudsman, the practitioner will be or without malice”.
not be required to make a notification themselves. The National Law (section 237) protects
There is also an exception for health health practitioners who mandatorily report
practitioners when providing care to another another health practitioner from any civil,
health practitioner. criminal and administrative liability, including
defamation, provided the notification is made
If you are providing a health service to a
in good faith.
health practitioner who may have engaged in
notifiable conduct, you are NOT required to Further, the National Law states that making
make a complaint or notification if you believe a notification in good faith will not constitute
the conduct relates to an impairment that will a breach of professional etiquette or ethics,
not place the public at substantial risk of harm or a departure from accepted standards of
and is not professional misconduct. professional conduct.

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Consequences for health practitioners who fail Queensland Public Sector

to notify
Employees
A health practitioner who fails to make a
Obligation to give notice of a charge or
mandatory notification in relation to notifiable conviction of an indictable offence.
conduct could be liable for health, conduct or
Under section 181 of the Public Service Act
performance action by their National Board or
2008 (Queensland) an employee is required
the Health Ombudsman.
to give notice of charge or conviction for
Employers should have a policy and an indictable offence. These requirements
procedure in place and provide training are applied to health service employees
to ensure compliance with the mandatory under section 2 part 2 of the Public Service
reporting requirement. Regulation 2008.
If after reviewing your employer’s policies Notice must be given to the chief executive
and procedures you remain unsure of your immediately, however under Queensland
obligations you should contact the QNMU. Health Policy E 4 (QH-POL -127) an employee
has up to 48 hours to notify.
Mandatory reporting in relation to impaired
students The notice must include:
The mandatory reporting obligations in
■■ if charged - the details of the alleged
relation to students are different to the
offence, or
obligations to mandatorily report registered
health practitioners. ■■ if convicted of an indictable offence— notice
that you have been convicted, and
A health practitioner is required to make a
mandatory notification in relation to a student ■■ the details of the offence, and
where a student has an impairment which, in ■■ the penalty imposed.
the course of the student undertaking clinical
Notification of a charge or conviction is
training, may place the public at substantial
required irrespective of whether the offence
risk of harm.
was committed in Australia or in another
See previous in relation to impairments and country.
substantial risk of harm. Education providers
Under the Queensland Health Policy, being
also have mandatory reporting obligations in
‘charged with an offence’ includes being
relation to students.
charged with an offence; being served with a
Further questions Notice to Appear (indictment) or being served
If you have any further questions, you a Summons to appear in a court to answer an
can refer to the Guidelines for Mandatory alleged offence ‘Being convicted’ is defined as
Notifications, available on the AHPRA website a finding of guilt and includes a finding that ‘no
or contact the QNMU. conviction be recorded’.
An indictable offence is defined in the policy
Visit the AHPRA website
as an offence for which a charge may be
www.ahpra.gov.au
laid by indictment or an equivalent process,

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whether that is the only or an optional way to of Conduct but should an actual or perceived
lay a charge of the offence. conflict of interest arise, an employee must
promptly identify and disclose any conflict
The Criminal Code Act specifies that
of interest that might affect, or might be
offences may be criminal offences or
perceived to affect, the proper performance of
regulatory offences. Criminal offences
their work.
comprise crimes, misdemeanours and simple
offences. Only offences designated as crimes Public sector employees also need to
and misdemeanours are indictable offences. refer to PSC Directive 3/10 – Declaration of
When a person has been summarily convicted Interests – Public Service Employees (other
of an indicatable offence, the conviction is than departmental Chief executives).
deemed a conviction of a simple offence Failure to disclose a conflict of interest or
only, and not an indictable offence, however refusal to take any action directed by the
the exception is convictions under the Drugs delegate to resolve or manage a conflict of
Misuse Act which are indictable offences (see interest, can lead to disciplinary action or
Policy E 4 QH). possibly referral to the Crime and Corruption
Commission,
Other requirements
Conflict of Interests/ Declaration of interests Gifts and benefits
The Public Sector Ethics Act 1994 requires Public service employees cannot be offered,
public sector employees to act with integrity accept, or give gifts and benefits that affect,
and impartiality. Section 6(d) states an could affect, or be perceived to affect their
employee must: doing their jobs impartially. All gifts and other
acknowledge the primacy of the public benefits received as part of official duties must
be declared.
interest and undertake that any conflict
of interest issue will be resolved or Any gift or benefit valued at more than $150
appropriately managed in favour of the must be reported. Any offer of cash, or items
public interest. which can be readily converted into cash (e.g.
lottery tickets, ‘scratchies’, shares, store gift
Under Queensland Health Guideline QH: GL
cards) must be refused. (see Guideline QH:GL
113-1:2017 Department of Health employees
113-1:2017)
must not abuse a position for personal
advantage or act in a manner contrary to the All agencies must record gifts and benefits
Code of Conduct for the Queensland Public received or given with a retail value of more
Service. than $150 in a central Gifts and Benefits
Register which is to be published quarterly.
All employees are required to avoid any
conflicts of interest they encounter. A conflict
can arise from avoiding personal losses or
gaining personal advantage.
Having a conflict of interest or a perceived
conflict of interest is not a breach of the Code

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Employment
issues
T he laws governing your rights and

obligations at work can be quite complex.
Because of the significance of work in daily
Contracts can be oral or in writing, or a
combination of both. Oral contracts are very
difficult to enforce because there is no clear
life, for many people the working relationship record of what was agreed.
becomes one of the most important Usually, your offer of a job will be contained
relationships they will have. in a letter of appointment. The information
The QNMU offers members extensive contained in the letter will form part of your
advice and assistance on industrial laws, contract of employment.
enterprise bargaining, award entitlements and
employment contracts.
In this chapter, we look at some key
employment concepts you should be aware of.
Contract of employment The QNMU offers

When you are offered a job, and you accept
that offer, a contract of employment is formed. members extensive
This establishes certain rights and obligations
for both you and your employer.
advice and assistance
Some of these are governed by the terms on industrial laws,
of the contract, some are implied into the
contract by the common law and some rights enterprise bargaining,
and obligations are imposed by legislation, like
the federal Fair Work Act 2009 in the private
award entitlements and
system and the state Industrial Relations Act employment contracts.
2016 in the public system.

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06 Employment issues
These will be the express terms of your If you have any doubt about whether you
contract of employment. At the very least such are being offered a contract of employment or
a letter should specify: a contract for services you should contact the
QNMU for advice.
■■ the type of employee you will be (i.e. be full-
time, part-time, casual, temporary or fixed Do not be pressured into agreeing to a
term) contract before seeking advice.
■■ the relevant industrial instrument

TIP: Ensure you have a copy of the
■■ what probationary or minimum contract of employment or terms
employment period will apply in a letter and sufficient time to get
advice before you sign it or give
■■ your classification and pay level as well as
notice of resignation in your current
your rate of pay
employment.
■■ the start date of your employment.
If you are part-time the letter should also The National Employment
specify the minimum guaranteed hours per Standards (NES)
week (or, in some cases, the hours on which In July 2009, the federal government’s
days) you will be expected to work. Fair Work Act 2009 introduced improved
In addition to the obligations expressly protections for employees in the workplace.
stated in your contract of employment, These included the National Employment
the common law also applies a number of Standards (NES), These are 10 entitlements
obligations to your contract of employment. an employee has which are contained in and
These include duties of good faith and protected by legislation.
fidelity, trust and confidence, and obedience. This means that a contract of employment,
award, Enterprise Agreement or any other
Please note that although most nurses
industrial instrument cannot provide for
and midwives work under a contract of
less than the NES, and if they do, the NES
employment as employees, a small minority
overrides it to the extent that they are less
of nurses and midwives may work under
favourable.
a contract for services as ‘independent
contractors’. The NES apply to employees in the federal
industrial relations jurisdiction, which does
Genuine independent contractors do not
not include Queensland Health or Local
have the same rights or entitlements as
Government.
employees and may also have additional
obligations. The 10 National Employment Standards are:
For example, independent contractors are 1. Maximum weekly hours of work – 38 hours
generally paid a flat hourly rate for their work per week, plus reasonable additional hours.
and are not entitled to annual leave or sick 2. Requests for flexible working arrangements
leave or superannuation. — some employees have the right to ask for

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flexible working arrangements, which can

only be refused in certain circumstances.
The NES apply to
3. Parental leave and related entitlements
– up to 12 months unpaid leave for every employees in the federal
employee, plus a right to request an
additional 12 months unpaid leave, plus
industrial relations
other forms of maternity, paternity and jurisdiction, which does not
adoption related leave.
4. Annual leave – four weeks paid leave per
include Queensland Health
year, plus an additional week for certain or Local Government.
shift workers. (Note that the Nurses Award
2010 provides an additional week of leave
It contains information about the NES,
on top of this).
modern awards, agreement-making, the
5. Personal / carer’s leave and compassionate right to freedom of association, termination
leave – 10 days paid personal (sick) / carer’s of employment, individual flexibility
leave, two days unpaid carer’s leave as arrangements, rights of entry, transfer of
required, and two days compassionate business, and the respective roles of the
leave (unpaid for casuals) as required. Fair Work Commission and the Fair Work
6. Community service leave – unpaid leave for Ombudsman.
voluntary emergency activities and leave
The Queensland Employment
for jury service, with an entitlement to be
Standards (QES)
paid for up to 10 days for jury service.
The new Industrial Relations Act 2016
7. Long service leave (LSL) – is a period of commenced on 1 March 2017 and included
leave paid to employees who have worked minimum standards that apply to the
for the same employer for a period of employment of all State government
continuous service of 10 years. Public employees (including Queensland Health)
holidays – a paid day off (unpaid for and Local Government Authorities (i.e. local
casuals) on a public holiday, except where Councils).
reasonably requested to work.
The QES can be found in Part 3 of the
8. Notice of termination and redundancy pay Industrial Relations Act 2016. There are 15
– up to four weeks’ notice of termination entitlements that have been legislated as
(five weeks if the employee is over 45 minimum standards.
and has at least two years of continuous
Similar to the NES, a contract of
service) and up to 16 weeks redundancy
employment, award, Enterprise Agreement or
pay, both based on length of service.
any other industrial instrument cannot provide
9. Provision of a Fair Work Information for less than the QES, and if it does, the QES
Statement – employers must provide overrides it to the extent that they are less
this statement to all new employees. favourable.

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The 15 Queensland Employment per year if an employee has experienced

Standards are: domestic violence and needs to take leave
1. Minimum wage – a wage declared by as a result of the domestic violence. Long
the Queensland Industrial Relations term casuals are entitled to 10 unpaid
Commission. days per year, and short term casuals are
entitled to two.
2. Maximum weekly hours– 38 hours per
week, plus reasonable additional hours. 9. Parental leave – up to 12 months unpaid
leave for every employee, plus a right to
3. Flexible working arrangements – all
request an additional 12 months unpaid
employees have the right to request
leave, plus other forms of maternity,
flexible working arrangements. The
spousal, surrogacy and adoption related
employer can only refuse the request on
leave.
reasonable grounds.
10. Long service leave – an entitlement that
4. Annual leave – four weeks paid leave per
accrues proportionately on the passing
year, plus an additional week for certain
of time and on completion of at least ten
shift workers. (Note that the Nurses Award
years of continuous service, seven if the
2010 provides an additional week of leave
employment is terminated.
on top of this).
11. Public holidays – a paid day off on a
5. Personal leave - including sick leave and public holiday, except where reasonably
carer’s leave,–10 days paid / leave which requested to work.
can be used as sick or carer’s leave. Two
12. Emergency service leave – an entitlement
days unpaid carer’s leave for casual
to a reasonable amount of unpaid leave
employees.
if the employee engages in an emergency
6. Bereavement and compassionate leave management activity and is a member of a
- two days paid leave for permanent recognised emergency management entity.
employees and two days unpaid leave for
13. Jury service leave – an entitlement to take
casuals). For all employees, an amount of
leave to perform jury service. The employer
unpaid bereavement leave if an employee
must pay the employee the difference
reasonably requires time to travel to and
between the ordinary rate the employee
from the funeral or other ceremony for the
would have been paid and the amount
death.
stated in the jury attendance document for
7. Cultural leave - employees who are the duration of the jury service duty.
required by Aboriginal tradition or Island
14. Notice of termination and redundancy –
custom to attend an Aboriginal or Torres
certain employees can only be dismissed if
Strait Islander ceremony may take up to five
they have been given the relevant period
days unpaid cultural leave each year which
of notice or paid compensation. In some
the employer cannot unreasonably refuse.
circumstances, a minimum notice period is
8. Domestic and family violence leave – 10 required to be provided by an employer if
days of domestic and family violence leave the employee has had continuous service.

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Entitlement to redundancy pay of up to 16 However, some terms of an industrial

weeks where applicable. instrument can be offset by higher wages in a
15. Information statements and information contract of employment.
for employees – there is a requirement Awards and Enterprise Agreements are
for the employer to give new employees legally enforceable documents that set out
an information statement outlining most of the detail of you and your employer’s
employment entitlements and other rights and obligations.
matters within Queensland’s industrial
The terms of your employment usually set
relations system. Employees also must be
out in industrial instruments include, but are
provided with a document specifying the
name of their industrial instrument. not limited to the following:
■■ wages
Industrial instruments ■■ hours of work (including breaks)
Usually, the terms of your employment will
■■ termination, change and redundancy
be governed by an industrial instrument, such
■■ penalties
as the Nurses Award 2010 and an Enterprise
Agreement. ■■ allowances
■■ types of leave
These industrial instruments are separate
to your contract of employment (see Byrne v ■■ superannuation
Australian Airlines (1995) 185 CLR 410) but your ■■ consultative arrangements
contract of employment cannot take away the ■■ dispute and grievance resolution
conditions in these industrial instruments. processes.
Usually, the terms of

your employment will
be governed by an
industrial instrument,
such as the Nurses
Award 2010 and an
Enterprise Agreement.

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The following are types of industrial an Enterprise Agreement applicable to their

instruments you could be employed under: employment.
■■ State Awards — made by the Queensland Most nurses in private hospitals and many in
Industrial Relations Commission (QIRC), aged care are covered by Enterprise Agreements
covering employees and employers in the made under the Fair Work Act 2009.
state system, also binding one or more For example, nurses and midwives employed
unions, such as the Nurses and Midwives by Ramsay Health are covered by the Ramsay
Award (Queensland Health) – State 2015. Health Care Australia Nurses, Midwives and
■■ State Certified Agreements — these are the QNU Enterprise Agreement 2016 – 2019
collective agreements in the state system (FWC ref AG2017/1287).
generally negotiated between one or The Nurses Award 2010 does not apply
more unions and the employer and then to these nurses whilst this agreement is
approved by the QIRC. in operation. In the unlikely event that the
■■ Federal Awards — made by the Fair Work agreement was terminated without a
Commission (FWC) which cover employers replacement agreement, then the Nurses
and employees in the federal system. Award 2010 would apply.
■■ Federal Enterprise Agreements — these However, if the Enterprise Agreement is
are collective agreements made between silent on a matter, the Nurses Award 2010
an employer and employees, which unions provides the minimum.
can be covered by if they have members The Nurses Award 2010 replaced other
and make application to the FWC. When nursing awards applicable in the federal
in operation an Enterprise Agreement jurisdiction (private sector) around Australia.
will apply to an employee in place of the
relevant federal award. NOTE: Registered nurses employed in
secondary education institutions are not
QNMU Member Connect or your Organiser covered by the Nurses Award 2010.
can provide you advice on the industrial
instrument that applies to you. They are covered by the Educational
Services (Schools) General Staff Award 2010.
Modern awards
Making a collective agreement
From 1 January 2010, most industries in
the federal jurisdiction became subject to a The QNMU supports collective agreements
modern award. The QNMU, along with the and assists members in negotiating and
Australian Nursing and Midwifery Federation understanding them.
(ANMF), fought hard for an award specifically Collective agreements also known as
for nurses. Enterprise Agreements deliver the best results
The Nurses Award 2010 became operative for nurses and midwives, including the highest
on 1 January 2010 and applies to nurses wages.
in the federal system who do not have any Research shows that workers who negotiate
other statutory industrial instrument such as collectively earn more money and have better

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If the workers don’t approve the agreement,

negotiations will need to continue until an
agreement is accepted by the workers.
Collective agreements You should let your employer know you want
a union negotiated collective agreement. If
also known as Enterprise they do not agree then the QNMU can seek the
assistance of the Fair Work Commission, the
Agreements deliver the independent industrial umpire, to help.
Speak to your local QNMU Organiser for
best results for nurses more information about making a collective
and midwives, including agreement.
the highest wages. When things go wrong

From time to time disagreements arise
between employers and employees. These
conditions of employment than workers who
disagreements can lead to grievances,
negotiate individual contracts or who do not
disciplinary processes or, in the most serious
have a strong collective voice in the workplace.
cases, dismissal.
In the federal system, under the Fair
Where an employee is unable to resolve
Work Act 2009, if a majority of workers in a
a disagreement with their employer, the
particular workplace want to bargain for an
QNMU is able to assist with advice and other
Enterprise Agreement then their employer
assistance including representation.
must bargain.
The Fair Work Commission (FWC)
If the employer refuses to bargain, the
for private sector employees, and the
workers and their union can seek a Majority
Queensland Industrial Relations Commission
Support Determination from the Fair Work
(QIRC) for public sector employees, deal
Commission (FWC) which compels the
with matters such as dismissals and
employer to negotiate.
discrimination to assist both employers and
These negotiations must be undertaken in employees in resolving disagreements. The
accordance with the good faith bargaining QNMU is able to represent members in the
requirements under the Fair Work Act. FWC and the QIRC.
Workers can also take lawful industrial The QNMU can also attempt to resolve some
action during enterprise bargaining. For matters directly with the employer prior to an
example, if negotiations reach an impasse, application to the FWC or the QIRC.
workers can vote to take “protected industrial
There are time limits on making a claim.
action” in pursuit of their claims.
Extensions of time can be granted in limited,
Once an agreement has been reached, exceptional, circumstances but employees
workers must approve it by a vote before it can should not rely on this as they must meet strict
be presented to the FWC for approval. criteria.

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Dismissal unjust or unreasonable. These words carry

In the case of dismissal, there is state and their ordinary meaning.
federal legislation that provides a process for The federal unfair dismissal laws are
employees who feel they have been unfairly or intended to ensure a ‘fair go all round’ for both
unlawfully dismissed to seek a remedy. employees and employers. You are not unfairly
The QNMU can assist with the application dismissed if your position was genuinely made
and process, including representation, for redundant.
members who have had their employment The matters considered by commissions
terminated unfairly. in determining whether a dismissal is harsh,
If you are dismissed it is important to unjust and unreasonable include such
immediately contact the QNMU as there are considerations as:
strict time limits, that apply from the date of ■■ whether there was a valid reason for
dismissal, in which to lodge an application to the termination, that is a reason that
the FWC or the QIRC as applicable. is “sound, defensible or well founded”
Unfair dismissal: An unfair dismissal is (Selvachandran v Peteron Plastice Pty Ltd
generally defined as a dismissal that is harsh, (1995) 62 IR 371).
If you are dismissed

it is important to
immediately contact
the QNMU as there
are strict time limits

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■■ whether the employee was notified of the for persons who have been discriminated
reason for the dismissal. against, victimised, or have experienced other
unfair treatment.
■■ if the dismissal related to the employee’s
performance, whether the employee was A person must not take adverse action
warned about the poor performance prior against another person because the other
to the dismissal. person:
■■ whether the employee was given an ■■ has a workplace right or

opportunity to respond to the allegations ■■ has, or has not, exercised a workplace right
of poor performance or misconduct prior to or
the dismissal.
■■ proposes or proposes not to, or has at any
Section 387 of the Fair Work Act 2009 time proposed or proposed not to, exercise
outlines the criteria that must be considered. a workplace right
FWC time limit: In the federal system, you only ■■ is or is not, or was or was not, an officer or
have 21 days from the date of dismissal to make member of an industrial association (ie union)
a claim. You must have been employed for a
■■ engages, or has at any time engaged or
minimum of six months (12 months if employed
proposed to engage, in lawful industrial
by a small business with 15 full-time equivalent
activity.
staff or less) to be eligible to make a claim.
A person must not take adverse action
Casuals can make a claim if the employee
against another person to prevent the exercise
was employed on a regular and systematic
of a workplace right by the other person.
basis and had a reasonable expectation of
continuing employment. Workplace rights
State employees’ time limit: In the state A workplace right is:
system, you have 21 days from the date of ■■ an entitlement to the benefit of, or a role
dismissal to make a claim. You must have been or responsibility under, a workplace law,
employed for a minimum of three months workplace instrument or order made by an
(twelve months if a casual employed on a industrial body or
regular and systematic basis).
■■ the ability to initiate, or participate in, a
General protections process or proceedings under a workplace
General protections provisions involving law or instrument or
dismissal and other unlawful actions are ■■ the ability to make a complaint or inquiry
contained in the Fair Work Act 2009 and the in relation to their employment or seek
Industrial Relations Act 2016 (Qld). compliance with a workplace law from a
General protections provisions protect body such as the Fair Work Commission.
workplace rights, including freedom of Adverse action by an employer against an
association. They also provide protection from employee includes dismissing the employee,
workplace discrimination, and effective relief injuring the employee in their employment,

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discriminating between the employee and Undue influence or pressure

other employees or altering the employee’s An employer must not exert undue influence
position to their prejudice. or undue pressure on an employee in relation
If this adverse action is committed because to a decision by the employee to:
you exercised or have a workplace right then ■■ make, or not make, an agreement
you can make an application to the FWC or arrangement under the relevant
or the QIRC as applicable to deal with the Employment Standards, or
matter.
■■ make, or not make, an agreement or
The QNMU can also attempt to resolve some arrangement under a term of a modern
matters directly with the employer prior to an award or Enterprise Agreement that is
application to the FWC or the QIRC. permitted to be included in the award or
agreement, or
Freedom of association/industrial activity
An employer must not take adverse action ■■ agree to, or terminate, an individual
because an employee seeks to be represented flexibility arrangement, or
by a union. An employer that denies a member ■■ accept a guarantee of annual earnings; or
access to union representation is in breach of
■■ agree, or not agree, to a deduction from
the general protections provisions.
amounts payable to the employee in
Discrimination relation to the performance of work.
An employer must not take adverse action
Misrepresentations
against a person who is an employee, or
An employer must not knowingly or
prospective employee, of the employer
recklessly make a false or misleading
because of the person’s race, colour, sex,
representation about:
sexual orientation, age, physical or mental
disability, marital status, family or carer’s ■■ the workplace rights of another person, or
responsibilities, pregnancy, religion, political ■■ the exercise, or the effect of the exercise, of
opinion, national extraction or social origin. a workplace right by another person.
Unfair treatment Domestic violence
Coercion
Queensland legislation also provides
An employer that organises or takes, or general protection for domestic violence
threatens to organise or take, any action against under section 296 of the Industrial Relations
an employee with intent to coerce the employee Act 2016.
is in breach of the general protections provisions
if done for the following reasons: The section provides that: An employer must
not take adverse action against a person who
■■ the exercise or non-exercise, or proposal to is an employee, or prospective employee,
exercise or not exercise, a workplace right, or of the employer because someone has
■■ the exercise, or proposal to exercise, a committed, or is committing, domestic violence
workplace right in a particular way. against the person.

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An employer must not take

adverse action against a
person who is an employee,
or prospective employee,
of the employer because
someone has committed,
or is committing,
domestic violence
against the person.
The key element in a general protections Anti-discrimination laws

claim regarding workplace rights is that the In addition to protections from
adverse action must have been taken against discrimination found in section 351 of the
the employee because of the employee’s Fair Work Act 2009 or section 295 of
workplace right. the Industrial Relations Act 2016 (Qld),
The court must find that the ‘real reason’ for employees in Queensland can also make
the employer taking adverse action against complaints to the Anti-Discrimination
the employee is because of the employee’s Commission Queensland (ADCQ) under the
workplace right, or union activities. Anti Discrimination Act (Qld) 1999 or the
Australian Human Rights Commission (AHRC)
Onus of proof reversed: The employer
under the relevant federal legislation.
must prove that the adverse action was not
because of the employees workplace right. The following federal legislation covers
discrimination in employment across
Time limit: If you have been subjected to the
Australia:
adverse action of dismissal because you had
or exercised a workplace right, or for another ■■ Age Discrimination Act 2004
protected reason, you have 21 days from the ■■ Australian Human Rights Commission Act
date of dismissal to make an application. 1986
There is a six-year time limit on taking action ■■ Disability Discrimination Act 1992
in relation to adverse action which was not a ■■ Racial Discrimination Act 1975
dismissal. ■■ Sex Discrimination Act 1984

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The QNMU can also attempt to resolve some 10 and 11 of the ADA provide examples of a
matters directly with the employer prior to an definition of direct and indirect discrimination.
application to the ADCQ. Generally direct discrimination occurs if a
Throughout this section we will refer to the person treats, or proposes to treat, a person
Anti-Discrimination Act 1999 (ADA) to provide with an attribute less favourably than another
examples and definitions. Please note the person without the attribute is or would be
provisions may vary between other state and treated in circumstances that are the same or
the federal Acts. not materially different.
Attributes For example, a person could be directly

Anti-discrimination legislation has slightly discriminated against if an employer did not
different ways of describing attributes hire them because they were a woman.
that are covered for discrimination. Not Indirect discrimination on the basis of an
all discrimination is unlawful/covered by attribute happens if a person imposes, or
legislation. proposes to impose an unreasonable rule,
For example, the attributes contained in the policy, or similar that has a disproportionate
ADA are: impact on persons with an attribute.
■■ sex An example of indirect discrimination could

be a workplace that only has stairs to enter
■■ relationship status
and cannot be accessed by a wheelchair user.
■■ pregnancy
■■ parental status Whether a term is reasonable depends on
all the relevant circumstances of the case,
■■ breastfeeding
including, for example the consequences
■■ age
of failure to comply with the term, the
■■ race cost of alternative terms and the financial
■■ impairment
■■ religious belief or religious activity
■■ political belief or activity
■■ trade union activity
■■ lawful sexual activity
■■ gender identity
■■ sexuality Discrimination is only
■■ family responsibilities, and
■■ association with, or relation to, a person
unlawful if it occurs in
identified on the basis of any of the above a specific area such
attributes.
Type of discrimination
as employment or
Some of these laws also describe both education.
indirect and direct discrimination. Sections

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circumstances of the person who imposes, or d. by denying access to a guidance program,

proposes to impose, the term. an apprenticeship training program or other
occupational training or retraining program
Areas of activity
Discrimination is only unlawful if it occurs e. in developing the scope or range of such a
in a specific area such as employment or program
education. Under the ADA these are known as f. by treating a worker unfavourably in any
areas of activity. way in connection with work.
The most relevant areas for nurses and Section 23 of the ADA prohibits a nursing
midwives are in the pre-work, work and agency or other employment agency from
employment agency area. The ADA provides discriminating —
useful examples of areas of unlawful
discrimination. a. by failing to supply a service of the business,
whether to a person seeking work or an
Section 14 of the ADA covers the pre-work
employer seeking a worker
area and provides that a person must not
discriminate — b. in the terms on which a service is offered or
supplied
a. in the arrangements made for deciding who
should be offered work c. in the way in which a service is supplied
b. in deciding who should be offered work d. by treating a person seeking work or an

employer seeking a worker unfavourably in
c. in the terms of work that is offered,
any way in connection with a service.
including, for example, a term about when
the work will end because of a person’s age Exemptions
d. in failing to offer work There are some exemptions that apply in all
jurisdictions. While you might be discriminated
e. by denying a person seeking work access
against, if there is an exemption the
to a guidance program, an apprenticeship
discrimination will be lawful.
training program or other occupational
training or retraining program One example of an exemption frequently
raised by employers in response to disability
f. in developing the scope or range of such a
discrimination complaints is that a genuine
program.
occupational requirement exists in relation to a
Section 15 of the ADA covers the work position which a complainant cannot satisfy.
area and makes it unlawful for a person to
discriminate — The onus is on the employer to prove that
this genuine occupational requirement exists.
a. in any variation of the terms of work
b. in denying or limiting access to If you believe that you have been
opportunities for promotion, transfer, discriminated against on the basis of
training or other benefit to a worker an attribute, contact the QNMU for
advice.
c. in dismissing a worker

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Sexual harassment ■■ makes an unsolicited demand or request

Sexual harassment is unlawful. It can (whether directly or by implication) for
have a damaging impact on the victim and, sexual favours from the other person, or
consequentially, the workplace. ■■ makes a remark with sexual connotations
The QNMU believes that no nurse or midwife relating to the other person, or
should be subjected to or accept unwelcome ■■ engages in any unwelcome conduct of
behaviour of a sexual nature in the workplace. a sexual nature in relation to the other
Laws prohibiting sexual harassment have person; and
been introduced by both the Commonwealth ■■ engages in the conduct described above
Government, by way of the Sex Discrimination with the intention of offending, humiliating,
Act 1984, and by all state governments. In or intimidating the other person or if a
Queensland, the relevant legislation is the reasonable person would have anticipated
Anti-Discrimination Act 1991 (ADA). Section the possibility that the other person would
118 of the ADA provides that a person must be offended, humiliated or intimidated by
not sexually harass another person. the conduct.
Section 119 of the ADA defines sexual In order to achieve the ADA’s objective
harassment as occurring if a person: regarding eliminating discrimination and
■■ subjects another person to an unsolicited harassment, and promoting equality of
act of physical intimacy, or opportunity by protecting from sexual

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harassment, the scope of behaviour which What is important to note is that it is not
could constitute sexual harassment is very a person’s individual opinion of whether
broad. their conduct was offensive, but whether a
reasonable person would have anticipated the
The ADA provides that in addition to the
possibility.
obvious conduct of unsolicited physical
intimacy (e.g. touching, groping, kissing It has also been held that the existence of
etc), sexual comments and innuendo, any workplace banter of a sexual nature as part
unwelcome conduct of a sexual nature is of the workplace culture does not prevent
prohibited. behaviour of a sexual nature from being held
to constitute sexual harassment.
The courts have held that a wide range
of conduct constitutes sexual harassment, Nurses and midwives should ensure that
including: they are familiar with the sexual harassment
policy of their employer.
a. repeated requests for sexual favour from a
co-worker In determining the level of support provided
to members in relation to sexual harassment
b. pornographic calendars in the workplace
matters, the QNMU’s primary concern is
c. pornographic videos or images displayed supporting members subjected to sexual
on a co-worker’s computer to other harassment in the employer/employee
employees relationship.
d. groping, touching, brushing against a co- The QNMU will act to ensure the employer
worker appropriately acts to prevent or deal with
e. sexually suggestive remarks to a co-worker sexual harassment matters.
at work or while in employer provided The QNMU will support any member who
accommodation after work believes they have been sexually harassed.
f. intrusive questions regarding a co-worker’s The level of support is at the discretion of
love-life. the QNMU and may include general advice,
The courts will also consider the representation to the employer, representation
circumstances in which the alleged behaviour before the Anti-Discrimination Commission
occurred. Queensland (ADCQ) or the Queensland Civil
and Administrative Tribunal.
In determining whether a reasonable person
would have anticipated the possibility that In matters before the ADCQ the QNMU,
the person subject to the conduct would have at its discretion, will only support actions by
been offended, humiliated, or intimidated by members against their employer or claims
the behaviour, the court will consider such made against them by clients and other non-
factors as the age, sex, impairment and nursing staff.
race of the parties and their relationship, for In determining the level of support, the
example, whether the alleged harasser was in QNMU will take into account the relevant
a senior position to the victim. action/inaction of the employer.

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Members who wish to take action against relationships come with additional obligations
individuals other than employers before the on employees.
ADCQ may do so but the costs of such action These include relationships involving workers
will be the responsibility of the member. from other countries whose employment
Members who are accused of sexual may be subject to the terms of a visa, and
harassment have the right to seek advice and employment relationships involving a bond or
assistance from the QNMU to ensure that scholarship where the employee has reciprocal
their rights and entitlements are appropriately obligations in return for being provided with
protected. assistance with, for example, education.
The QNMU reserves the right to determine It is important before entering into these
on a case by case basis the level of support sorts of relationships that members fully
a member who is the subject of a sexual understand what is required of them.
harassment complaint will receive. For further advice please contact the QNMU.
The QNMU has a detailed policy Bullying behaviour

regarding sexual harassment. Bullying behaviours may include any physical
To access the QNMU’s policy please or verbal activity or event that demeans a
refer to the QNMU website at person or disrupts their ability to appropriately
www.qnmu.org.au/policysheets perform their work duties.
Such behaviour is generally considered to
Miscellaneous occur when a pattern of such behaviour exists,
e.g. repeated occurrences.
Differences in time limitations
One advantage of the Anti Discrimination Workplace bullying can cause significant
Commission Queensland (ADCQ) and the disruption in a workplace and can damage the
Australian Human Rights Commission (AHRC) health of those subjected to it.
is that there are longer time limits for bringing Such behaviour may include, but not be
complaints. limited to, the following:
Both ADCQ and the AHRC allow complaints ■■ displaying non-supportive or disruptive
up to 12 months after the discrimination behaviour
happened.
■■ yelling or swearing
By comparison Applications under the Fair ■■ belittling or intimidating behaviour
Work Act 2009 or the Industrial Relations Act
2016 (Qld) for dismissal on the grounds of ■■ verbal or physical threats
discrimination have a 21 day time limit. ■■ pushing, shoving or fist-shaking
Other employment obligations ■■ displaying material that is degrading or

Visas/Bonds/Scholarships offensive
In addition to most employer/employee ■■ teasing someone or making them
relationships, a number of employment consistently the butt of jokes

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06
■■ creating rumours or making false ■■ informing a worker about unsatisfactory

statements work performance or inappropriate work
■■ assault, stalking or violence. behaviour
Workplace bullying can also be subtle and ■■ directing a worker to perform duties in
may include behaviour such as: keeping with their job
■■ deliberately excluding, isolating or ■■ maintaining reasonable workplace goals

marginalising a person from normal and standards.
workplace activities Stop Bullying Application
■■ intruding on a person’s space by pestering, An employee in the private sector (federal
spying or tampering with their personal jurisdiction) can apply to the FWC for an
effects or work equipment order to stop bullying at work. From March
■■ intimidating a person through inappropriate 2016 employees covered by the Queensland
personal comments, belittling opinions or Industrial Relations Act 2016 have been able
unjustified criticism. to apply to the QIRC for a stop bullying order.
Covert behaviour that undermines, treats The QNMU can also attempt to resolve some
less favourably or disempowers others is also matters directly with the employer prior to an
bullying. For example: application to the FWC or the QIRC.
■■ overloading a person with work For the FWC or QIRC to grant an order,
the Commission must be satisfied that the
■■ setting timelines that are very difficult to
employee who has made the application
achieve or constantly changing deadlines
has been bullied at work by an individual
■■ setting tasks that are unreasonably beyond or a group of individuals and there is a risk
a person’s ability the employee who made the application will
■■ ignoring or isolating a person continue to be bullied at work by that same
individual or group.
■■ deliberately denying access to information,
consultation or resources
NOTE: An application cannot be made
■■ unfair treatment in relation to accessing by an employee in circumstances
workplace entitlements, such as leave, where their employment has come to
popular shifts or training. an end.
However, bullying does not include
All employees have the right to work in an
reasonable management action carried out in
environment based on trust and respect, free
a reasonable manner.
from inappropriate behaviour.
Reasonable management action may
include, for example: Laws guiding the way people behave in the
workplace include industrial relations, workers’
■■ performance management processes compensation, anti-discrimination and
■■ disciplinary action for misconduct workplace health and safety legislation.

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Defamation
What to do when you think you are being bullied
In Queensland, the law of
defamation is governed by the
The following are practical tips for addressing
Defamation Act 2005. Traditionally
bullying behaviour directed at you in the workplace:
there was a distinction, at common
law, between defamatory matter
1. Keep a record. A nurse or midwife who feels
in a written form, or libel, and
they may be being bullied and harassed in the
defamatory matter in a more
workplace should ensure they document the
temporary form, such as spoken
bullying behaviours.
words or gestures, referred to
Bullying behaviour, when viewed in isolation, may as slander. The Defamation Act
appear harmless, and is often an accumulation of abolishes that distinction.
acts or omissions over a period of time.
A claim of defamation may arise
As such, many people find it difficult to articulate
where a person communicates
their complaints. Keeping a diary of what you
(publishes) something that is
consider to be bullying treatment is a good
defamatory about someone else
way of ensuring that the bullying behaviour is
(the aggrieved) to at least one other
recorded and evidenced.
person.
2. Check for a workplace bullying policy and The core of a defamation claim
complaints process. is not so much the words used
or spoken in the defamatory
3. Seek advice from the QNMU. publication, rather it is the
imputations which arise from the
4. Approach the person engaging in bullying defamatory matter.
behaviour only if you feel safe and comfortable
The words used or spoken may
in doing so. If not, see if your grievance contact
constitute imputations in their
officer will raise the person’s bullying behaviour
own right as well. Imputations
with them on your behalf.
are important because different
defamatory imputations may arise
5. Seek counselling. Always ensure you do not let the
from the same defamatory matter
stress of being bullied overwhelm you. If you think
depending on the person to whom
you may be becoming unwell, see a counsellor or
the defamatory matter is published.
doctor. Also seek advice from the QNMU in relation
to workers’ compensation processes. Defamatory imputations are
matters which could:
6. Take formal action through a dispute or ■■ lower the aggrieved person’s
grievance resolution process that exists in your
reputation
workplace. The QNMU can give you advice on the
process applicable in your workplace. ■■ lead others to think less of the
aggrieved person

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06
■■ make other people shun and avoid the This letter, called a ‘Concerns Notice’, should
aggrieved person also set out what the person who published
the defamatory matter may do to ‘make
■■ cause other people to hate, ridicule or
amends’ for the publication.
despise the aggrieved person.
The person who published the defamatory
There are a number of defences available
matter may make an ‘offer to make amends’ to
to the person alleged to have published
resolve the dispute and avoid litigation.
defamatory matter including that:
Defamation is a complex, technical and very
■■ the material was substantially true
expensive litigation. It is a civil claim which
(justification),
should not be jumped into without first seeking
■■ it was a fair report of proceedings of public legal advice.
concern,
Assistance
■■ it was an honestly held opinion, The QNMU will not normally assist members
■■ it was innocently distributed, or to commence a defamation action against
another individual.
■■ it was trivial and unlikely to cause harm.
Subject to the qualifications and restrictions
Resolution contained in the QNMU’s professional
The Defamation Act contains a process for indemnity insurance policy, this policy will cover
the informal resolution of a defamation claim. members for defamation claims made against
The aggrieved person may write them where such claims arise from alleged
correspondence to the person who published publications made in the course of carrying out
the defamatory matter which sets out their practice.
the basis for their claim, particularly the Members who are threatened with an action
defamatory imputations of most concern to for defamation should contact the QNMU
them arising from the publication. immediately.

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07
Your role as
a witness
I n your employment as a nurse or midwife

you may at some stage find yourself involved
in a formal inquiry or proceeding where you
complaints body such as the Office of the
Health Ombudsman.
The coroner must not include comments
will be required to provide statements and/
that a person is or may be guilty of an offence
or evidence and perhaps even appear as
or civilly liable for something. However, if
a witness. Such proceedings may include
the coroner reasonably suspects a person
criminal matters, matters relating to child
has committed an offence, the coroner may
safety, coronial inquiries or proceedings in an
refer the person to the director of public
industrial commission.
prosecutions. It is also possible for a person,
While we don’t attempt to cover every
such as a family member, to commence civil
circumstance in this chapter, the advice
proceedings for negligence following the
is readily adaptable to different types of
inquest.
proceeding and circumstance.
During a coronial investigation and inquest,
Further information can be obtained directly
you have a right to refuse to answer questions
from the QNMU.
that might incriminate you. This is called the
Coronial inquiries privilege against self-incrimination. While
A coronial inquest can be a difficult time for such an outcome may be rare it is important
nursing and midwifery staff as the Coroner to contact the QNMU and seek advice before
is required to make findings and sometimes making any statement.
recommendations at the conclusion of the Often a nurse or midwife may be contacted
inquest. by the Coroner, their employer or occasionally
If the coroner makes adverse comments or by a police officer to make a statement
findings about a nurse or midwife, the coroner detailing their involvement in the care of the
may refer the practitioner to a health care deceased. It is advisable to indicate that you

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...it is important to
contact the QNMU
and seek advice
before making
any statement.
are willing to co-operate but wish to seek legal asked to provide statements to regulatory
advice beforehand. or law enforcement authorities, courts,
commissions and tribunals (e.g. the Australian
Section 16 of the Coroners Act 2003
Health Practitioner Regulation Agency, the
provides that the coroner may require a
Crime and Misconduct Commission, the
person to give the coroner information, a
Coroners Court and specially constituted
document or anything else that is relevant to
commissions of inquiry).
the coroner’s investigation. It is an offence to
fail to comply with such a direction. You can Statements may also be required about
still seek legal advice before complying with workplace health and safety incidents and
the request and can claim the privilege against workers’ compensation matters. Statements
self-incrimination. may be requested by employers as part of
internal investigations into grievances or
For more information refer to Chapter 4:
alleged incidents of inappropriate workplace
Professional practice issues.
conduct.
Making statements Any statement you make could have serious
There are a range of circumstances where legal, professional or industrial ramifications.
you may be asked to provide a statement. This is the case whether you have merely
Nurses and midwives are increasingly being witnessed an incident or were directly involved.

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07 Your role as a witness
It is also important to be aware that anything time to prepare and seek advice about the
you write could be used against you. Anything matter.
you write also has the potential to be used in a
If the statement is required in a matter
court of law.
involving a patient, ask for access to the
General advice about making statements patient’s medical and nursing chart. You
Do not make any statements (other than should be given the opportunity to sit down
simple incident reports) until you have and read the patient’s file before making any
contacted the QNMU for advice. You are not statement.
obliged to give a statement to the police in Health agencies maintain records for at
relation to any investigation they may be least seven years from the last entry. For
conducting in a criminal matter. babies, this period usually extends to when
In relation to a coronial investigation you they reach the age of 21.
can refuse to participate in an interview if your If you are under pressure to provide a
evidence may incriminate you or until you have statement in a timeframe which does not allow
sought legal advice. you adequate time to properly prepare your
You are only required to give the police statement, you should contact the QNMU for
your name and address, and in some cases assistance.
proof of the correctness of your name and
Preparing your statement
address.
In order to assist the QNMU in providing
You should always seek advice from advice on your statement, please ensure
the QNMU or legal advice before you follow these guidelines in preparing your
agreeing to be interviewed by or statement:
giving a statement to police. ■■ Your statement should be accurate, precise,
concise, clear, legible and unambiguous.
If you believe that any statement you might
You should:
make could incriminate you or make you liable
in an action for negligence, then you should ◆◆ state your full name, your position and
politely decline to make any report to any employer and any qualifications you hold.
person in authority until you have obtained ◆◆ provide factual details of the incident,
legal advice. including the place of the incident,
Never be pressured into making a dates and times in chronological
statement in these circumstances. Refrain order of events that you witnessed
from discussing the issue with any other staff or participated in, names of persons
members. involved and any witnesses to the
incident.
You must be given adequate time to prepare
and seek advice on any statement you make. ◆◆ write your statement in the first person,
Prior to the provision of any statement to the that is, detail what you saw, heard or, in
police you should make it clear that you require some situations, touched or smelt (e.g. ‘I

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07
checked the patient’s blood pressure at

7.15am’).
◆◆ describe any circumstances or
contributing factors to the incident, such
as lack of staff or equipment (e.g. ‘there
were fewer nursing hours provided on
this shift than were indicated as being Failure to report matters
required by the Patient Dependency
System’).
adequately may be
■■ You should not state your opinion or view evidence of negligence or
on the matter, apportion blame or draw
conclusions. result in disciplinary action
■■ You should always retain a copy of being taken by the NMBA.
statements of any incident you are involved
in during the course of your nursing and/or
Charting is not simply a clerical responsibility
employment. If a statement has been made
but also a clinical and professional one.
by your employer about an incident in which
For this reason documentation should be
you were involved, you should request a
objective. Avoid the use of opinion and
copy of this for your records.
personal comments (e.g. ‘client is difficult’).
Documentation and reports There are times when opinion is called for,
Making a statement is easier if you have where problem solving approaches to patient
clear, precise and effective documentation. care are used.
Effective documentation The adequacy of the opinion is something

Reports should be contemporaneous – that which cannot be judged unless the objective
is, they should be made as close as possible in basis for the opinion is also documented.
time to the events being reported upon. Reports should be legible and clear
The sooner after the event that a report is Failure to write legibly may result in
made the more likely it is to be accurate and liability in negligence. Errors should not be
as a consequence, the more likely a court is obliterated—if a mistake is made, rule neatly
to accept it as evidence and a true record of through it and write the correction beside or
events. above the erroneous words clearly and legibly.
Reports should be adequate and accurate, Any correction should be signed or initialled
carefully and fully made and not include and dated by the person making it (the original
irrelevant material. report writer).
Failure to report matters adequately may be Do not rewrite reports. Reports and charts
evidence of negligence or result in disciplinary should never be rewritten at a later date, as
action being taken by the NMBA. this can lead to errors being made.

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The value of a patient’s medical record is and accuracy. This includes countersigning
that it is made contemporaneously with the reports.
events it documents. Avoid documenting information which has
The existence of a rewrite policy can call into been passed on by others. If you are required
question the accuracy of every patient record to countersign an entry, you must not do
within the institution. so unless you are satisfied that the drug/
treatment was in fact administered. If in doubt,
If there is additional information which was
do not countersign.
forgotten at the time an entry was made, then
it should be included as an addendum.
Nurses, midwives and the police
Do not transcribe. Treatment orders should It can be a stressful experience when the
not be transcribed into a patient’s notes from police arrive at your workplace or your home.
the original order.
Whether you have merely witnessed
The person who actually carried out the an incident or were directly involved, the
procedure or administers the drug should things you do and say to the police could
write the report. Never write a report or sign it have serious legal, professional or industrial
on behalf of another health care worker. ramifications.
Reports represent the knowledge of the As a QNMU member it is important for you
person in whose name they are written. The to know your rights when dealing with the
person signing a report vouches for its truth police about a work related matter.
You should be aware

that any answers you
give may be used as
evidence against you in
disciplinary, coronial or
criminal proceedings.

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07
What you say to other persons and to You have the right to obtain independent
police officers may have serious effects on the legal advice before being interviewed or
outcome of any proceedings. providing a statement.
You are under no legal obligation to answer You also have the right to the presence of
questions from police, apart from your name legal counsel during the interview process if
and address. you are being questioned with regard to an
You should be aware that any answers you indictable offence.
give may be used as evidence against you in An indictable offence is one such as assault,
disciplinary, coronial or criminal proceedings. an example of a non-indictable offence would
You have a right to remain silent. This be unlawfully taking away shop goods.
means you are not required to participate in You should not agree to blood tests, to
an interview with the police, or answer any
videotaped interviews or to re-enactments of
questions from the police (other than your
an event without first obtaining legal advice.
name and address). This is also known as the
privilege against self-incrimination. If you are arrested or charged
No negative inference can be drawn against If you are charged or arrested you must
you for not participating in an interview. Unless contact your own solicitor. The QNMU is unable
you are arrested, you do not have to go with to legally represent members on criminal
the police to the police station, or to answer matters, though the QNMU can refer members
questions. to its panel of lawyers for assistance if
If you are confused as to whether you are required (this would be at the member’s cost).
under arrest, ask the police officer whether you
Whistleblowing (public interest
are under arrest. You should ask the name,
rank and station of the police officer and make
disclosures)
a note of these details. An important component of public
accountability is the willingness of employees
Asking you to come to the police station
to voice concerns on matters of public interest.
for ‘questioning’ is only an invitation, without
Providing some protection for people who do
the force of the law, and there is no legal
this is the reason why we have whistleblowing
obligation for you to accompany the police
legislation.
unless you have been arrested.
In Queensland, under the Public
Giving your details Interest Disclosure Act 2010 (previously
It is advisable to give your name and the Whistleblowers Protection Act 1994),
address, if requested by the police, regardless protections predominantly apply to employees
of the offence being investigated. in the public sector.
Giving a statement For more information on mandatory
You are not obliged to give a statement to reporting protections under the Aged Care
the police in relation to any investigation they Act refer to Chapter 5: Mandatory Reporting.
may be conducting. Public service officers, including nurses and

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midwives, may seek protection for public The QNMU is able to assist members
interest disclosures (PID) relating to: considering using PID/‘whistleblowing’
■■ corrupt conduct procedures; however members should contact
us for advice first.
■■ maladministration which adversely affects
anybody in a substantial and specific way In 2013, the Commonwealth government
also passed legislation relating to
■■ a substantial misuse of public resources
whistleblowing, the Public Interest Disclosure
■■ a substantial and specific danger to public Act 2013 (Cth), which commenced in January
health or safety or 2014.
■■ a substantial and specific danger to the The objects of the legislation include
environment. promoting the integrity and accountability of
Any person may disclose a danger to a the Commonwealth public sector, ensuring
person with a disability or the environment, or that public officials who make public interest
a reprisal. disclosures are protected from adverse
consequences relating to the disclosures, and
The protections available to a person
ensuring that disclosures by public officials are
who makes a PID (often referred to as a
properly investigated and dealt with.
‘whistleblower’) under the Public Interest
Disclosure Act 2010 are similar to the QNMU members who wish to make a PID
protections available to those required to with information they have, should contact the
make mandatory reports. QNMU for advice.
A person is not criminally, civilly or Within the workplace

administratively liable for making a From time to time you may be asked by your
disclosure. Their liability in relation to their
employer to make a statement about some
own involvement in a disclosed matter is
matter or incident that has occurred at your
unaffected.
workplace.
It is an indictable offence to take reprisal
actions against a person who has made a PID
(‘whistleblower’).
A reprisal action is any act or attempt
The QNMU is able to assist
to act to cause a suspected whistleblower
detriment because of the PID. The maximum members considering
penalty ranges from a fine to up to two years using PID/‘whistleblowing’
imprisonment.
procedures; however
There are important procedural steps that
need to be followed by anyone seeking to members should contact us
claim the protection available under the Public for advice first.
Interest Disclosure Act.

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07
If the subject of the statement concerns a Giving evidence

client of the service (a patient or resident) then The reasons for giving evidence and
you should contact the QNMU before providing the procedures used will vary depending
a statement as it may be a matter relevant to on the court or tribunal, the subject of
the QNMU’s professional indemnity insurance the proceedings, and your role in the
policy or involve other issues you need to be proceedings.
aware of.
Importantly, you should ignore everything
On occasion, your employer may request a you have ever watched on television in which
statement regarding a matter or incident that witnesses give evidence. In almost all cases, it
involves another employee. is completely different to reality.
There could be several reasons for this but As a general guide, you should:
one of the most usual is because the other
■■ familiarise yourself with the court
employee is the subject of an investigation or
environment
disciplinary process.
■■ review any relevant documents including,
It is important to know that an employee
if you have made one, your affidavit of
being investigated is usually entitled,
evidence or statement
pursuant to the rules of natural justice, to any
statements that contain information that may ■■ clarify with the legal representative the
be used against them or is adverse to them. reason you are appearing to give evidence
It is also important to know that if the matter ■■ conduct yourself in a calm and organised
goes to a court or tribunal (for example, if the manner
employee is dismissed), then your statement ■■ speak clearly
could be required at a hearing and you may be
cross examined on what you have said in your ■■ know the facts
statement. ■■ seek clarification if you do not hear or
If you are asked by your employer for understand the question
a statement on any matter, or if you feel ■■ do not estimate unless you are specifically
the need to volunteer a statement to your requested to do so
employer, you should seriously consider the
■■ tell the truth
following points:
■■ expect to be cross examined
■■ Do you know how the statement will be
used, what its purpose is? ■■ be reasonable.
■■ Stick to the things and events you know, not (This material draws from Kim Forrester and
what you may have heard. Debra Griffiths’ Essentials of Law for Health
Professions (4th ed.), Elsevier, Sydney, 2015.)
■■ Stick to the facts, not your personal likes or
dislikes.
■■ Do not sign anything you are unsure of or
disagree with.

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08
Being safe at work

and workers’
compensation
E veryone—nurses and midwives, patients,

members of the public and other staff — has
the right to work in an environment where they
Your employer has a duty to provide a safe
place and system of work for the health and
safety of you, the employee.
are protected from aggressive behaviour.
You are able to refuse to work, or continue to
Unfortunately, violent and aggressive work, if you are confronted with an imminent or
behaviour has been a part of working in health immediate serious workplace health and safety
care settings for some time. risk from a hazard until action is taken by your
Some areas of nursing and midwifery employer to remove or minimise the risk.
are more likely to face aggressive patient The employer is required to consult with you
behaviour than others. Nurses and midwives on how this is done.
may also be faced with violence or aggression
You must make yourself available to carry
from family members or friends of patients.
out suitable alternative work.
There is evidence to suggest that higher
A number of legal consequences can arise
levels of aggression are becoming more
when aggression occurs.
common in the workplace.
Because of their frontline role in health care, Criminal assault
nurses and midwives are, unfortunately, often If a nurse or midwife has been a victim of
the target of violence and aggression. an assault they are able to make a complaint
The QNMU supports the rights of members to the police. The police may then charge and
to work in an environment that is free from prosecute the perpetrator of the assault. There
aggression and violence. are a range of different criminal offences that
arise from aggressive or violent behaviour.
Aggression and violent behaviour, including
verbal threats, intimidation and harassment, As a nurse or midwife you cannot personally
should not be tolerated in any workplace. prosecute a person who has criminally

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08
assaulted you; this is solely the responsibility of Trespass to person includes assault, battery
the police. and false imprisonment. Trespass to person
You may be able to seek criminal injuries requires direct and unlawful interference of
compensation for an assault. the person by another without their consent.
You may also be able to bring a claim for An action for trespass to person does not
compensation for the common laws tort of require proof of damage (compare this with an
trespass to person. You should contact the action in negligence which requires proof that
QNMU in these circumstances for advice. the defendant caused damage).
Nurses and midwives who attempt to ‘take Consent is important to this area of law
the law into their own hands’ run the risk of because where there is consent there is no
engaging in criminal conduct themselves or trespass to the person.
make themselves liable to civil claims for a In Queensland the criminal law is codified,
trespass to person. which means it is set out in legislation. The
criminal law definition of assault is also used
as the basis for an action under the civil law
for assault.
Criminal Code Queensland

Section 245 of the Criminal Code Act 1899
provides that:
A person who strikes, touches, or moves,
or otherwise applies force of any kind to
the person of another, either directly or
indirectly, without their consent or with
their consent if the consent is obtained by
fraud, or who by any bodily act or gesture
attempts or threatens to apply force of
any kind to the person of another without
their consent, under such circumstances
that the person making the attempt or
threat has actually or apparently a present
ability to effect their purpose, is said to
assault that other person, and the act is
called an assault.
The term ‘applies force’ includes the case
of applying heat, light, electrical force, gas,
odour, or any other substance or thing
whatever if applied in such a degree as to
cause injury or personal discomfort.

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08 Being safe at work and workers’ compensation
The Criminal Code definition of assault

includes battery — that is, assault is defined as
threats as well as acts violence.
Defences to an action in assault

There are several defences to an action in
It is an assault to initiate
assault including where: or continue treatment
■■ any apparent threat or physical contact
was unintended or an accident once a person has
■■ the situation was an emergency, and refused consent.
measures used were to save life or health
■■ the action taken was in self defence when ■■ giving a blood transfusion to a child in cases
faced with imminent danger and no more of imminent peril [s.20 Transplantation and
force than necessary was used prevent the Anatomy Act 1979]
danger
■■ the detention and examination of persons
■■ the action taken was for the protection of suspected of suffering from, or exposed to,
another person (including the victim) and/ a notifiable disease [Health Act 1937]
or property, from danger, by use of no more
■■ the detention and examination of persons
force than was reasonably necessary
involuntarily under the provisions of the
■■ there exists a statutory power to do so in an Mental Health Act 2016
emergency.
■■ the provision of reasonable palliative care,
In addition, a health practitioner has a in good faith and with reasonable care and
defence to an assault where it involves the palliative care is ordered by a doctor
treatment, provided that at the time the [s.282A Criminal Code].
treatment was given there was an emergency
situation, that is, the treatment was necessary Refusal of treatment in an emergency
to save life or to prevent serious injury to a An adult person of sound mind may refuse
person’s health. emergency treatment. It is an assault to
initiate or continue treatment once a person
Nurses and midwives should be aware
has refused consent.
that a number of statutes authorise assaults
or imprisonment which would otherwise be Victim Assist Queensland
unlawful in the absence of a person’s consent. Since 1 December 2009, victims of crime
If the requirements set out in the statute are are no longer entitled to apply for criminal
followed by the person nominated as having compensation either from the offender or the
the authority, then nurses and midwives Queensland Government through the ex gratia
assisting them or acting under their authority compensation scheme.
will generally also have a defence. For Victim Assist Queensland is a scheme,
example: administered by the Department of Justice

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08
and Attorney-General and has been circumstances volunteers are protected by this
introduced to allow victims of crime to access legislation.
the following: The workplace itself is any place where
■■ financial assistance (for medical assistance work is performed by a worker or a person
and loss of earnings) conducting business or undertakings.
■■ funeral assistance This means a nurse or midwife’s workplace

could range from a hospital to a patient’s
■■ support services, i.e. counselling
home if they are being nursed there.
■■ practical support during court proceedings.
An employer has an obligation under Section
The scheme is designed to assist victims of 19 of the Act to ensure, as far as reasonably
crime to recover from the effects of crime. It practicable, that they, their workers or other
also provides assistance to relatives of victims persons are not exposed to risks to their health
and witnesses to serious acts of violence. and safety arising as a result of the employer’s
Members are encouraged to contact the business or undertakings.
QNMU for further advice and assistance In Queensland an employer will minimise
regarding their rights and eligibility. their risks of breaching this obligation if they
adhere to the various practices set out in the
Workplace health and safety
The health and safety of workers in
Queensland is governed by the Work Health
and Safety Act 2011 and the Work Health and
Safety Regulation 2011.
Additionally, a number of Codes of Practice,
which provide advice around hazards common
to an industry, can be used in proceedings
under the Act. An example is the Manual Tasks
– Involving the Handling of People Code of
Practice 2001.
The objective of this legislation is to prevent
a person’s death, injury or illness being caused
by a workplace, by work activities or by specific
high risk plant (equipment).
Under the Work Health and Safety Act 2011
a worker is defined as one who carries out
work in any capacity for a person conducting a
business or undertaking.
Additionally a person may be a worker even
if the worker is not paid, therefore in certain

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Work Health and Safety Regulation 2011, and/ direction, they should raise the issue with their
or follow a risk management process. health and safety representative and with the
QNMU.
The How to Manage Work Health and Safety
Risks Code of Practice 2011 clearly states what In Queensland workers have a right to elect
is required. health and safety representatives. These
representatives cannot be appointed by the
If a hazard is present in a workplace and
employer.
is not covered by regulation or a code of
practice, and an employer has not used the Should workers choose, they can ask for their
risk management process, they may be in union to assist with the election process.
breach of the Act. The Health and Safety Representative (HSR)
In that case, they could be prosecuted by has a number of entitlements under Sections
Workplace Health and Safety Queensland, 68 and 72 of the Act, ranging from the
the government body established to manage ability to perform inspections through to the
workplace health and safety in Queensland. right to attend workplace health and safety
representative training.
A worker’s obligation under s.28 of the Act
is to: Another entitlement under the Work Health
and Safety Act includes an ability for a HSR to
■■ take reasonable care for his or her own
issue Provisional Improvement Notices (PINs)
health and safety
in circumstances where a HSR believes there is
■■ take reasonable care that his or her acts or a contravention of a provision of the Act.
omissions do not adversely affect the health A HSR is elected for a period of three years.
and safety of other persons
In Queensland it is an offence under
■■ comply, so far as the worker is reasonably the Act to dismiss or otherwise act to the
able, with any reasonable instruction that detriment of a worker who has made valid
is given by the person conducting the complaints regarding their health and safety,
business or undertaking to allow the person or those workers who are health and safety
to comply with the Act representatives and are carrying out their role.
■■ co-operate with any reasonable policy or Part 6 of the Work Health and Safety Act
procedure of the person conducting the 2011 introduces protections for workers and
business or undertaking relating to health others to prevent them from being subjected
or safety at the workplace that has been to discriminatory conduct for raising workplace
notified to workers. safety concerns.
They must also not wilfully or recklessly place What is prohibited?
at risk the workplace health and safety of
Section 104 of the Work Health and Safety
themselves or others.
Act 2011 provides that a person conducting
Therefore, if they are given a direction that a business or undertaking (PCBU) must
they know will put themselves at risk and not engage in discriminatory conduct for a
the employer is unwilling to reconsider the prohibited reason. Discriminatory conduct is:

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08
■■ dismissing a worker The burden of proof is on the balance of

■■ terminating a contract for services probabilities.
■■ putting a worker at his or her detriment What to do if your workplace is unsafe

■■ altering the position of the worker Under both state and federal industrial
legislation there is a right for workers to refuse
■■ refusing or failing to offer to engage a
to work in an unsafe situation.
prospective worker
In such circumstances your employer can
■■ terminating a commercial arrangement
direct you to undertake other work until the
with a person
unsafe situation is remedied.
■■ refusing or failing to enter into a commercial
If your workplace becomes unsafe you
contract with another person.
should not put yourself at risk and should
“Prohibited reasons” are as follows: contact the QNMU for assistance.
■■ a person is, has been or proposes to be a
Health and Safety Representative (“HSR”)
Critical incident stress debriefing
A critical incident is any situation faced by
■■ a person exercises power or performs a
personnel that causes them to experience
function as a HSR or as a member of a
unusually strong emotional reactions which
Health and Safety Committee (“HSC”)
have the potential to interfere with their ability
■■ a person exercises, proposes or assists to to function either at the scene or later.
perform a function under the Work Health
The QNMU advises strongly that every
and Safety Act 2011
facility should have a policy and procedure on
■■ a person raises, has raised or proposes critical incident debriefing.
to raise an issue of concern about safety
The policy should include clear guidelines
with the business, an Inspector, a HSR, a
about critical incident management. Critical
member of a HSC or another worker
incident debriefing is a right for all staff
■■ a person is involved or has taken action (or involved in a critical incident.
is proposed to be involved or taking action)
When and how counselling (internal or
in respect of a workplace safety issue.
external) or stress debriefing occurs should be
The prohibition against discriminatory the decision of the affected staff member or
conduct can be enforced by: members.
■■ criminal prosecution by Workplace Health This lessens the impact of critical incidents
and Safety Queensland or on all staff by minimising the severity and
■■ civil proceedings by a person affected by duration of critical incident stress and helps
the contravention. prevent the development of more chronic and
harmful stress-related disorders.
It will be presumed that discriminatory
conduct will be for prohibited reasons unless It is the employee who decides whether they
the accused PCBU can prove otherwise. have experienced a critical incident or not.

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Workers’ compensation Who is covered?

What is workers’ compensation? Workers in Queensland who are employed
In Queensland, the Workers’ Compensation under a contract of employment should be
and Rehabilitation Act 2003 establishes a ‘no covered by workers’ compensation.
fault’ workers’ compensation scheme providing
When are you covered?
benefits primarily for workers who sustain
If a worker sustains an injury that arose
injury in their employment and for dependants
if a worker’s injury results in the worker’s death. out of or in the course of employment,
and their employment was a significant
It is compulsory for employers to to contributing factor to the injury, then the
hold a policy of insurance with WorkCover
injured worker should be eligible for workers’
Queensland (or a self-insurer) who administers
compensation benefits, medical treatment
the fund and the provision of fair and
and rehabilitation.
appropriate benefits for injured workers.
The injured worker should also be eligible
Do you need to disclose previous injuries for workers’ compensation benefits, medical
to a prospective employer? treatment and rehabilitation if an injury is
Queensland employers are now allowed sustained:
to ask prospective employees during an
employment process for selecting an ■■ whilst on a journey — from the boundary of
employee if they have pre-existing injuries or your property at home to work and return
a medical condition that would be aggravated ■■ whilst temporarily absent during an
by performing the substantive duties of the ordinary recess
position applied for.
■■ whilst at work
This request must be in writing and you must
■■ travel for work
be provided with a job description sufficiently
detailed to enable you to make a considered ■■ attending an associated educational
response. institution.
If you knowingly provide false or misleading What steps do you take to claim for a
information to a prospective employer about work related injury?
a pre-existing injury or medical condition, The following advice refers to WorkCover
you may be not be entitled to workers Queensland however, if your employer is
compensation benefits or seek damages for a privately insured, some of the procedures may
work related aggravation of your pre-existing differ. If your employer is privately insured, you
injury or medical condition. should ask for detailed information on what
If you are requested by a prospective is required and contact the QNMU for further
employer to disclose pre-existing injuries or assistance.
a medical condition during an employment 1. Tell your employer you have a work related
process you should contact the QNMU for injury or illness and complete an incident
assistance. form within three days or as soon as
If concerned you should contact the QNMU. practicable.

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08
2. Obtain a WorkCover application form from

your employer, WorkCover or self-insurer.
3. Obtain a Workers’ Compensation
Regulator Workers compensation Medical
Certificate from your treating doctor or
dentist.
4. Write a statement outlining what you were
doing at the time you sustained the injury
or the onset of symptoms if your injury
occurred over a period of time.
5. Lodge all forms with your employer,
WorkCover Queensland or self-insurer.
Your doctor can also fax your forms straight
to WorkCover.
You may need to provide a Tax File Number
declaration to the insurer.
Are there any time frames?

An application for workers’ compensation is
valid and enforceable only if the application
is lodged by the injured worker within six
months of sustaining the injury or from first
presentation of symptoms or diagnosis by a
registered practitioner.
If you lodge an application for workers’
compensation outside the six month time
frame it will not be a valid application.
In some circumstances WorkCover may
accept an out of time application but only
in situations involving a mistake, the injured
workers’ absence from the state, or for a
reasonable cause.
If your application for workers’ compensation
is lodged more than 20 business days after
your injury, WorkCover may only be liable to
pay compensation from the date 20 business
days before the application was lodged.

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Do you have to take time off work? Psychological injuries are excluded from the
You can also make a claim for ‘Medical definition of ‘injury’ under the Act where the
Expenses Only’ or ‘Record Purposes Only’ if psychological injury arises out of reasonable
you do not wish/need to take time off work. management action taken in a reasonable
way.
Note: There may be some limitations,
including time, that affect your claim. It is important that you discuss a
claim involving a psychological injury
How long is it until your claim is decided with the QNMU before you put in a
by WorkCover? claim. It is extremely difficult to obtain
WorkCover must make a decision on an workers’ compensation for claims
application for workers’ compensation within involving psychological injury.
20 business days after the application is
made. The majority of claims are decided How is payment made?
within this time frame. Payment can be made from the day of
However, if WorkCover does not make a injury if you cease work. The employer excess
decision or is not able to make a decision is paid directly to the worker or one week
within 20 business days, WorkCover must of compensation, whichever is the greater
advise you in writing reasons as to why no amount. WorkCover will advise the employer of
decision has been made. the amount of excess.
Complicated claims and claims for Additionally your employer is to pay for
psychological injury can take longer for a the day of injury. Some employers will pay
decision to be made. you directly and they are reimbursed by
WorkCover. WorkCover will pay by cheque or
What happens if you make a ‘stress’ Electronic Funds Transfer.
claim?
To make a ‘stress’ claim you must have a Note: Leave accrual, salary sacrifice
medical diagnosis — stress is not acceptable and other payment arrangements
terminology. may be affected for periods of
Due to a recent change to the Act, for any workers’ compensation.
psychological injury sustained on or after
15 October 2013, employment must be the When do you start being paid?
major significant contributing factor to the Payments commence within two weeks of
injury. your being notified that your claim has been
accepted.
In many claims involving a psychological
injury you may be interviewed by WorkCover Should your employer agree to pay you
or their representative such as a psychologist leave entitlements as an interim measure,
or an investigator. In some instances you will these should be reimbursed once your
also be required to see a psychiatrist who will compensation comes through. Sometimes
assess your injury and its cause. there is a difference between your

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08
compensation and the leave entitlements What about rehabilitation and return to
paid. work?
This money will need to be reimbursed back All employers must offer appropriate
to the employer in order for you to have your rehabilitation programs to their workers.
leave re-credited. Some members may incur WorkCover Queensland, and self-insurers,
Fringe Benefits Tax on this money. are obligated to provide reasonable
and appropriate medical treatment and
What should you do if problems arise?
rehabilitation in respect of the accepted work
In the first instance, contact WorkCover related injury.
and enquire about the delay and if there is
The rehabilitation and return to work plan
anything you need to do, e.g. you may have the
must be developed in consultation with you
wrong medical certificate or your doctor may
and your doctor and signed by your treating
not have sent in their report as yet.
doctor. If amended this must also be signed by
If you require further clarification about the treating doctor.
the situation, or if the problem is not resolved
A representative from your union may be
by contacting WorkCover, then contact the
present at return to work meetings.
QNMU.
Injured workers can expect to be contacted
What are you entitled to? by their rehabilitation and return to work
■■ Payment of lost time earnings dependant coordinator if they are off work.
on your wage, overtime, higher duties,
penalties, allowances and the length of time Reasonable Adjustment
you are on workers compensation Once you have been medically certified as
fit to return to work, your employer has an
■■ Medical and treatment expenses.
obligation to make “reasonable adjustment”
■■ Private hospitalisation if pre-approved or in to the workplace environment (including your
an emergency situation for a period of four role) or placement in another role to facilitate
days. your return to work.
■■ Some travel expenses. Some of the difficulties reported by
■■ You have the right to seek advice from a members with impairments who are unable to
specialist. continue in their current position include:
■■ Costs are paid/reimbursed at the ■■ being given a list of vacant positions within
WorkCover schedule of fees rate — the workplace with no further assistance
outside of this you are liable for the ■■ the assessment conducted on one position
additional costs. used as the assessment for all positions in
that facility.
Keep copies of everything.
This is unacceptable behaviour.
Remember, you are entitled to see
Any member exposed to this should contact
what is in your WorkCover file.
the QNMU.

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What happens if your claim is not Common law claim for damages
approved? Workers who sustain injury in
If your claim is rejected then request a circumstances where there was an unsafe
copy of your file in writing from WorkCover or system of work, an unsafe place of work
the self-insurer and send it to the QNMU for or where there has been a breach of the
advice. employer’s duty of care owed to the worker
Decisions to reject a claim or a cease an and/or breach of employment contract, may
already accepted claim are subject to review be eligible to proceed with a common law
upon request and the union may be able to claim for damages.
assist you with this process. You will need to establish that your
You have three months from the date you employer or co-worker at the time of injury
receive the insurer’s reasons for decision in was at fault or negligent and thereby
writing in which to submit an Application responsible for the injuries suffered. If this can
be established on the balance of probabilities,
for Review of that decision to the Workers’
a common law claim for damages may
Compensation Regulator.
progress.
What happens if you are referred to a
Entitlement and access to a common
Medical Assessment Tribunal (MAT)?
law claim for damages is regulated by the
The QNMU assists members with
Workers’ Compensation and Rehabilitation
representation at a tribunal. Please contact
Act 2003.
the QNMU as soon as possible after receipt of
this notification. For all injuries sustained between
15 October 2013 – 30 January 2015, access
Only the workers’ compensation insurer can
to common law damages has been restricted
make a decision on the acceptance or rejection by the introduction of threshold which requires
of your claim. a greater than 5% degree of permanent
What to do if I receive a Notice of impairment.
Assessment? Injured workers requiring advice on a
Injured workers should contact the QNMU common law claim for damages, or who are
for assistance and referral for legal advice contemplating such action, should contact the
from practitioners who practise in this area of QNMU for assistance and referral for legal
law. advice from practitioners who practise in this
Injured workers who receive a Notice of area of law.
Assessment are required to make decisions Currently a common law claim must be
that will affect future entitlement and access commenced within three years of the date of
to damages at common law. injury.
Decisions made by an injured worker in For those injuries of a latent nature we
response to a Notice of Assessment are suggest you contact the QNMU as soon as
irrevocable and time limits apply. symptoms arise.

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09
Privacy and the right

to information
T his chapter covers the management and

control of information, the protection
of personal information, and the rights and
personal information, sensitive information
(including health information), tax file numbers
and credit information.
importance of access to information. The Office of the Australian Information
These matters are covered by both federal Commissioner is an independent body with
and state legislation. Individuals should have responsibility to promote and protect privacy
ready access to information about them in Australia and has certain responsibilities
and be protected from having their personal under the federal Privacy Act 1988.
information being traded or accessible to
others.
Organisations and governments should
be held accountable for their actions and
decisions.
The provision of information about those
actions and decisions is a key component of
that accountability.
Privacy
The Office of the Australian Information
Commissioner
The Privacy Act 1988 applies to federal
government, most non-government
organisations and most private sector
businesses (including health service providers),
in the way they must collect and handle

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09 Privacy and the right to information
The Office of the Australian Information information be properly stored and securely
Commissioner states that the privacy transferred
legislation provides protection for: ■■ the right, in circumstances where their
■■ personal information about you that is medical records are no longer required, to
handled by Australian and ACT government request that the records be destroyed.
agencies ■■ As an organisation the QNMU is bound by
■■ personal information about you held by the APPs.
all large private sector organisations, all The QNMU’s general privacy policy
private sector health service providers and and website privacy policy can be
some small businesses accessed from the QNMU website,
■■ credit worthiness information held by credit www.qnmu.org.au, or are available
reporting and credit providers and from the QNMU offices upon
request.
■■ personal tax file numbers used by
individuals and organisations. Below is a summary of the APPs.
Organisations are now required to comply
APP 1 – Open and transparent management
with the 13 Australian Privacy Principles (APPs)
of personal information
that cover the collection, storage, security,
An organisation is required to have ongoing
access and use of personal information, or be
practices and policies in place to ensure they
bound by a code approved under the Act.
manage personal information in an open
Prior to amendments made on 12 March and transparent way. It also places a positive
2014, the Privacy Act also contained obligation for organisations to implement
Information Privacy Principles (IPPs) and practices, procedures and systems that will
National Privacy Principles (NPP) that covered ensure compliance with the APPs and any
the collection, storage, security, access and registered APP codes.
use of personal information.
APP 2 – Anonymity and pseudonymity
These IPPs and NPPs still apply to acts or
An organisation is required to provide
practices that occurred prior to 12 March 2014.
individuals with the option of dealing with
The APPs allow patients: it using a pseudonym, in addition to the
■■ the right to access their health information. requirement that an organisation provide
Previously the Courts had held in Breen individuals with the option of them dealing
v Williams [1996] HCA 57 that medical with that organisation anonymously.
records were the property of the health APP 3 – Collection of solicited personal
facility or health professional and the information
patient did not have a right to access their
An organisation must not collect personal
records
information (other than sensitive information)
■■ the power to correct health records when unless the information is reasonably necessary
they contain errors and to demand that the for one or more of the organisation’s functions

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09
or activities. This APP 3 outlines when and information. The organisation is also required to
how an organisation may collect personal and notify individuals about the access, correction
sensitive information that it solicits from an and complaints processes in their APP policies.
individual or entity.
APP 6 – Use or disclosure of personal
APP 4 – Dealing with unsolicited personal information
information If an organisation collects personal
An organisation has obligations in relation to information about an individual for a particular
the receipt of unsolicited information and how purpose, it generally must not use or disclose
they are required to deal with that information. the information for another purpose unless the
If an organisation receives unsolicited individual consents.
information and it would have been permitted
to collect that information, it is required to APP 7 – Direct marketing
deal with the information in accordance with An organisation is prohibited from using
the APPs. If not, and the information is not or disclosing personal information for direct
contained in a Commonwealth record, the marketing purposes, except where the
organisation must destroy or de-identify that individual has either consented or reasonably
information as soon as practicable. expects that their information will be used for
a particular purpose.
APP 5 – Notification of the collection of
personal information APP 8 – Cross border disclosure
An organisation must generally make an An organisation must take reasonable steps
individual aware, at the time or as soon as to ensure overseas recipients do not breach
practicable after, the organisation collects their APPs.

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APP 9 – Adoption, use or disclosure of 2009. This Act established the separate roles
government related identifiers of an Information Commissioner and a Privacy
An organisation is prohibited from adopting, Commissioner for Queensland.
or using a government related identifier, The Information Privacy Act 2009 (IPA)
unless an exception applies. An example of commenced on 1 July 2009 and has the
an ‘identifier’ is a Tax File Number or Medicare objective of providing for:
number.
a. the fair collection and handling in the public
APP 10 – Quality of personal information sector environment of personal information,
An organisation must take reasonable steps and
to ensure the personal information it collects, b. a right of access to, and amendment of,
uses or discloses is accurate, up to date and personal information in the government’s
complete, having regard to the purpose of the possession or under the government’s
use or disclosure. control unless, on balance, it is contrary
to the public interest to give the access or
APP 11 – Security of personal information allow the information to be amended.
An organisation must take reasonable
The IPA requires Queensland Government
steps to protect personal information it holds
agencies to comply with the IPPs in almost all
from misuse, interference and loss, and
circumstances.
from unauthorised access, modification or
disclosure. An entity has obligations to destroy The Queensland Department of Health and
or de-identify personal information in certain individual Hospital and Health Services (health
circumstances. agencies) have specific responsibility to comply
with the 9 NPPs.
APP 12 – Access to personal information
Organisations are required to respond to Information regarding privacy
requests for access of personal information obligations can be found on the
within a reasonable timeframe and should Department of Health’s website:
be provided in the requested manner where www.health.qld.gov.au/privacy
reasonable and practicable.
Below is a summary of the NPPs that apply
APP 13 – Correction of personal information to health agencies:
Organisations are required to take reasonable
NPP 1—Collection of personal information
steps to correct personal information to ensure
that is it accurate, up to date, complete, relevant A health agency must not collect personal
and not misleading. information unless the information is
necessary for one or more of its functions or
The Office of the Information activities. A health agency must collect the
Commissioner – Queensland information in a lawful, fair and unobtrusive
The Queensland Government introduced way. A health agency must take reasonable
the Office of the Information Commissioner – steps to ensure the individual is aware that
Queensland under the Right to Information Act the health agency has collected the personal

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09
information (unless the information is required NPP 7—Amendment of documents containing

to be collected under an Act). personal information
A health agency must take reasonable
NPP 2—Limits on use or disclosure of personal
steps to ensure that personal information is
information
accurate, complete, relevant, up to date and
A health agency must not use or disclose
not misleading. If a health agency does not
personal information about an individual for
consider that it is required to amend personal
a purpose other than the primary purpose of
information in a way requested by an individual,
collection unless a relevant exception applies. the health agency must, if the individual asks,
NPP 3—Data quality take all reasonable steps to attach to the
document any statement provided by the
A health agency must take reasonable steps
individual of the amendment asked for.
to ensure that the personal information it
collects, uses or discloses is accurate, complete NPP 8—Anonymity
and up to date. Wherever it is lawful and practicable,
NPP 4—Data security individuals must have the option of not
identifying themselves when entering into
A health agency must take reasonable steps
transactions with a health agency.
to protect the personal information it holds
from misuse, loss and unauthorised access, NPP 9—Sensitive information
modification or disclosure. If the personal A health agency must not collect sensitive
information is no longer needed, the health information about an individual unless the
agency must take reasonable steps to ensure individual consents, it is impractical to seek
that the individual can no longer be identified consent, the collection is required by law, the
from the personal information. collection is necessary to prevent or lessen
a serious threat to the life, health, safety or
NPP 5—Openness
welfare and the individually cannot physically or
A health agency must have clearly expressed
legally consent, if the collection is necessary for
policies on the maintenance of personal
the establishment, exercise or defence of a legal
information and must make the policies
or equitable claim or the information is medical
available on request. When asked by a person,
history collected for the purpose of providing a
a health agency must take reasonable steps to
health service.
ensure that the person knows what personal
information is held generally and how it is used. If you are seeking information about
yourself, want to amend information about
NPP 6—Access to documents containing yourself or believe that the Queensland
personal information state government department has incorrect
If a health agency has control of a document information about you; you may make
containing personal information, it must give an application to the Queensland state
access to the documents to the person whose government department to obtain the
personal information has been kept, unless information or to correct or amend the
authorised by law to refuse access. information.

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A government department cannot charge you ■■ where there is noncompliance with the
a processing fee under the IPA but may charge application process—15 business days of
you an access fee, to cover photocopying etc. receipt of the application
This fee is prescribed in regulations.
■■ where it is deemed not to be limited to
Making an application under the personal information—15 business days of
Information Privacy Act 2009 receipt of the application.
You need to ensure the following for a valid Many Queensland government departments
application under the IPA: have a Right to Information/Information
■■ It must be in writing. Privacy Act request form for use by
individuals. If you require further information
■■ You must provide evidence of your identity,
or clarification about making a request for
for example:
information from Queensland government
◆◆ a copy of the photo page of your departments contact the Right to Information/
passport Privacy Officer for the department.
◆◆ a copy of your birth certificate or extract
The Department of Health also has
◆◆ a copy of your driver’s licence.
a policy of administrative access
■■ You must include a description of the type in relation to an individual’s health
of information you are seeking. records and has a form available for
■■ You must include an address for a response. this purpose at www.health.qld.gov.
au/rti/application/default.asp
A government department is required to
respond to your application under the IPA The Department of Health policy indicates
within 25 business days of receipt of the that a response to a request for personal
application, though this may be extended in health information under administrative
certain circumstances. access is generally 15 business days.
A government department is required to Further information on the federal and
respond to your application under the IPA in state privacy regimes can be accessed at the
the following timeframes, where applicable: following websites:
■■ where the application is for documents to ■■ Office of the Australian Information
which the IPA does not apply—10 business Commissioner www.oaic.gov.au
days of receipt of the application
■■ Office of the Information Commissioner:
■■ where the entity is an entity to which the
www.oic.qld.gov.au
IPA does not apply—10 business days of
receipt of the application Right to information
■■ where the application is made to Both state and federal governments
the information commissioner, RTI have freedom of information legislation. In
commissioner or privacy commissioner—10 Queensland the Right to Information Act 2009
business days of receipt of the application (RTI Act) commenced on 1 July 2009. The

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09
materials associated with the RTI Act that help government should be proactively and
to interpret it, make it clear that: routinely releasing information to the public
independently from the previous reactive
The central, driving principle the Panel
FOI based information access and disclosure
considers should govern freedom of
regimes (see Solomon Report pp 16-18)…
information is that unless there is a good
reason to withhold them, all documents …The core policy driver behind the RTI Act,
held by government should be open and the “push model”, is reflected throughout the
available to the public. legislation on both a broader structural level
and in greater detail in respect to specific
Section 3(1) of the RTI Act provides that:
provisions. Basically the RTI Act is structured
The primary object of this Act is to give so as to compel FOI decision-makers to
a right of access to information in the consider information should be disclosed
government’s possession or under the solely in the context of the public interest.
government’s control unless, on balance, it
This is reflected in the pro-disclosure bias
is contrary to the public interest to give the
which is provided for in s.44 of the RTI Act. This
access.
section provides that an agency or minister
Section 23 of the RTI Act provides that should, when deciding an access application,
a person has a legally enforceable right give access to the document unless it is, on
to documents of an agency (government balance, contrary to the public interest.
department or entity) and documents of a However, there are a number of bases upon
minister. To seek access to a document of an which an agency or a minister can refuse
agency or a minister, a person must make an to release documents sought under an RTI
application to the agency or minister. application. These include:
Even under the repealed Freedom of ■■ cabinet documents
Information Act 1992, the context of freedom
■■ documents which are legally privileged
of information legislation was in favour of an
interpretation which would further, rather than ■■ documents which the release of which could
hinder, free access to information. found a breach of confidence claim and
However the RTI Act goes much further as ■■ law enforcement or public safety
observed by Professor Gilbert in Queensland information.
Administrative Law at [2.40-2.45]: Access may also be refused in relation
At the centre of the RTI Act is the policy to documents containing ‘contrary public
of moving from a “pull” to a “push” model interest information’. For example, if an access
in relation to the release and disclosure application is made to the Department of
of government information. Underpinning Health it should decide to give access to the
the “push model” is the assumption that document unless giving access would, on
freely available government information is balance, be contrary to the public interest.
a cornerstone of an open and democratic It is intended that the grounds on which
system – the key element being that the access may be refused are to be interpreted

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narrowly: Professor Gilbert in Queensland decide to give access to the document unless
Administrative Law observes at [2.45]: disclosure would, on balance, be contrary to
the public interest.
A core reform of the RTI Act is the
fundamental revision of the methodology In performing the public interest test, the
to be adopted when determining whether Department of Health is required to identify
access to a document can be refused, i.e. the factors in favour of disclosure, factors in favour
exemption process. The general approach of non-disclosure and, weighing those factors,
has been to frame the exemptions such that decide whether, on balance, disclosure of the
the key issue and basis for the exemption information would be contrary to the public
is whether the release of the information interest.
would, on balance, be contrary to the public Schedule 4 of the RTI Act lists the factors
interest. In this regard the RTI Act reduces for deciding the public interest. Schedule 4
the number of “stand alone” exemptions particularises:
previously available and introduces a
■■ factors irrelevant to deciding the public
revised pubic interest test which operates as
interest
a “stand alone” exemption.
■■ factors favouring disclosure in the public
The Department of Health may refuse access
interest
to a document under s 47(3)(b) if disclosure of
which would, on balance, be contrary to the ■■ factors favouring non-disclosure in the
public interest under section 49. public interest.
But the Department of Health may not do In relation to health documents, the RTI
so by taking into account irrelevant factors Act provides that when considering an
such that, according to the Queensland application for access which relates to a
Administrative Law: health decision or the appointment of a health
care professional, the agency must appoint a
disclosure of information that could
qualified healthcare professional in relation to
reasonably be expected to cause
the application [s.30(5) & (6)].
embarrassment to, or loss of confidence
in, the Government and the disclosure A health decision means a decision relating
of the information could reasonably to information about the applicant which if
be expected to result in the applicant released may be prejudicial to the physical
misinterpreting or misunderstanding the or mental health of the applicant. This also
document, disclosure of the information constitutes a basis for refusing to release
could reasonably be expected to result in information under s.47(3) of the RTI Act.
mischievous conduct by the applicant and
Making an application under the Right to
the person who created the document Information Act 2009
containing the information was or is of high
If you are submitting an application
seniority within the agency.
for information that is not about you to a
If an access application is made to the Queensland state government department
Department of Health for a document, it must you may need to make an application under

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09
the RTI Act. You may need to a pay a fee for commissioner or privacy commissioner—10
access to the requested information under the business days of receipt of the application
RTI Act. ■■ where there is noncompliance with the
You need to ensure the following for a valid application process — 15 business days of
application under the RTI Act: receipt of the application
■■ It must be in writing. ■■ where it is deemed an application for

personal information — 15 business days of
■■ You must include or make arrangements to receipt of the application.
pay the relevant processing fee.
Each Queensland government department
■■ You must provide evidence of your identity, should have a Right to Information/
for example: Information Privacy Act request form for use
◆◆ a copy of the photo page of your by individuals. If you require further information
passport or clarification about making a request for
information from Queensland government
◆◆ a copy of your birth certificate or extract departments contact the Right to Information/
◆◆ a copy of your driver’s licence. Privacy Officer for the department.
■■ You must include a description of the type Are there charges under the RTI Act and IPA
of information you are seeking. for applications?
■■ You must include an address for a response. A processing fee is not payable for access
to a document that concerns the applicant’s
Timeframes personal affairs. That is, an application under
A government department is required to the IPA. However you may be charged access
respond to your application under the RTI fees under IPA.
Act within 25 business days of receipt of the A processing fee is payable for access to
application, though this may be extended in document under the RTI Act. You may also be
certain circumstances. charged access fees under the RTI Act. You
A government department is required to should be provided with a Charges Estimate
Notice within the 25 business day processing
respond to your application under the RTI Act
period.
in the following timeframes, where applicable:
If you do not respond to the department
■■ where the application is for documents
of your intention to continue the application
to which the RTI Act does not apply—10
within 20 business days of receipt of the
business days of receipt of the application
Charges Estimate Notice, your application will
■■ where the entity is an entity to which the RTI be taken to be withdrawn.
Act does not apply — 10 business days of
Internal and External Review of decisions
receipt of the application under the RTI Act and IPA
■■ where the application is made to If you make an application under the RTI Act
the information commissioner, RTI or IPA and are unhappy with the response, you

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may seek an internal review of the decision by There is no common law principle in Australia
the government department. of a patient’s right to know the content of their
There are certain circumstances where you medical records in the possession of the doctor.
are unable to seek a review. These include Access to records
(and are not limited to):
There is no common law right which allows an
■■ amount of a charge in a charges estimate individual to access their private medical record.
notice
However, despite the restrictions on access
■■ a decision made by a health care in most Australian jurisdictions, there are
professional relating to a decision about a number of mechanisms which allow for
healthcare. information to be given to a patient or their
You must apply within 20 business days legal advisor. These include:
of the decision for an internal review. If you ■■ freedom of information legislation, such
remain unhappy about the decision you may as the RTI Act 2009 (Queensland) or
seek an external review through the Office of the Freedom of Information Act 1982
Information Commissioner. Commonwealth for government records
■■ for private health records – Australian
If you require more information
contact the Office of Information Privacy Principle (APP) 12 in the Privacy Act
Commissioner – Queensland. deals with access to personal information
(including health information)
Health records ■■ My Health Records Act 2012

(Commonwealth)
Ownership of medical records
Ownership of medical records has been ■■ Information Privacy Act 2009 (Queensland)
a matter considered by the High Court of ■■ government policy
Australia.
■■ pursuant to a court process.
The court has held that in the absence
of a formal contract between the doctor Public records
and patient, there is no implied term in the RTI legislation Queensland gives a statutory
contractual relationship which entitles the right for an individual to access their personal
patient to inspect or own their medical records. medical/health records held by a public
The duty of a doctor to advise and treat a authority (other than the Mater Public
patient with reasonable care and skill does Hospital) but does not affect private health
not impose a general duty to grant access to care facilities or private practitioners.
medical records relating to the patient. The Freedom of Information Act 1982
The patient has no proprietary interest (Commonwealth) (FOI Act) covers federal
in the documents comprising their medical government agencies and gives a statutory
records or in the information contained in the right to an individual to access their medical
documents. records held by a federal government agency

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09
unless the agency is required or authorised to My Health Record contains online summaries
refuse access to that information under the of an individual’s health information, such as
FOI Act or another Federal law. medicines they are taking, any allergies they
may have and treatments they have received.
Access and the court process
Where judicial proceedings have been A My Health Record allows an individual’s
commenced then the various rules of court doctors, hospitals and other healthcare
and legislation relating to evidence allow for providers (such as physiotherapists) to
access to individual records. This generally view the individual’s health information,
occurs in what is known as a ‘disclosure’ or in accordance with their access controls.
‘discovery’ process. Individuals are also able to access their record
online.
Records as evidence
The system also enables individuals to add
There are statutory provisions or Rules of
Medicare information, and to create their own
Court concerning disclosure or discovery of
personal health summary and health notes.
medical records obtained for the purposes of
litigation. My Health Record system was originally
established as a self-register model but became
Medical records can also be subpoenaed —
opt-out at the end of 2018 which means that
that is, required to be produced in a court.
as of early 2019 every Australian who does
For records to be protected by legal not already have a record will automatically be
professional privilege, it must be shown that registered to have a My Health Record, unless
they were created for the sole purpose of being they choose not to have one.
submitted for legal advice.
The My Health Records Act limits when and
Digital Health Records how health information included in a My Health
The Personally Controlled Electronic Health Record can be collected, used and disclosed.
Record (PCEHR) or eHealth record is now being Unauthorised collection, use or disclosure
replaced by the My Health Record system. of My Health Record information is both a
breach of the My Health Records Act and an
The My Health Records Act 2012 (My Health
interference with privacy.
Records Act), My Health Records Rule 2016
and My Health Records Regulation 2012 The Office of Australian Information
create the legislative framework for the digital Commission (OAIC) regulates the privacy
health record system. provisions relating to My Health Record. The
OAIC has a range of functions under the My
The Australia Digital Health Agency was
Health Record system, including:
established in 2016 to have oversight of the
integration and operation of digital health ■■ investigating complaints about the
systems in Australia. mishandling of personal information in a My
Health Record
For more information go to:
■■ providing education and guidance about
www.digitalhealth.gov.au
privacy for individuals, healthcare providers,

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the System Operator and other participants Recording conversations

in the system The QNMU is often asked about the
■■ accepting data breach notifications from legitimacy of using recording devices and
participants in the My Health Record system. subsequently using what is recorded.
The OAIC also has a range of enforcement While legally in Queensland a party to a
powers under the Privacy Act 1988 (Privacy conversation may record it (though there are
Act) and My Health Records Act, including: restrictions on how the recording can be used)
the QNMU advises the general principle that
■■ accepting enforceable undertakings to
if you want to record someone, seek their
restrain or require particular conduct
permission first.
■■ using Privacy Act enforcement mechanisms,
such as making determinations For more information Refer to
the Invasion of Privacy Act 971
■■ seeking an injunction to restrain or require
(Queensland).
particular conduct
■■ seeking a civil penalty order from a Court.

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10
Confidentially
matters
Professional and ethical obligations Breach of confidentiality –

For nurses and midwives, the duty to protect legal actions
a patient’s confidentiality is outlined in the There are a number of legal grounds
professional standards of the Nursing and which can support an action for breach of a
Midwifery Board of Australia (NMBA). confidence:
The professional standards are provided in ■■ Breach of contract - where a contract exists
the codes of conduct, codes of ethics, guides between the parties, breach of confidence
to professional boundaries, and standards for may be a breach of an implied term of the
practice/competency standards. contract.
The Code of Conduct and Code of Ethics ■■ Negligence - a breach of confidence
for both nurses and midwives state that they may represent a failure to exercise
are to treat personal information obtained reasonable care (not dependent upon
in a professional capacity as private and contract), and therefore be actionable as
confidential. negligence. Carelessly revealing confidential
information about the condition of a patient
For more detail refer to Chapter 4: may amount to a breach of the duty of care.
Professional Practice Issues.
■■ Defamation - if confidential information
becomes disclosed, the patient may wish
Duty not to disclose to take action for any damage done to
As a general principle in common law, their reputation and any embarrassment
those who receive information in confidence they have suffered. To demonstrate that
should not disclose it. The duty is to avoid the patient has been defamed, there
telling unauthorised persons details that are are several elements that need to be
confidential and ensuring that confidential established. First, the information must
information does not fall into the wrong hands. be defamatory in nature. Second, the

CH
10 Confidentially matters
information must have been published Statutory duties concerning

to a third party. Third, the disclosure and confidentiality
information must be reasonably likely to The Hospital and Health Boards Act 2011
cause damage to the patient. Finally, the Qld mandates that a designated person must
patient must show that they have suffered not disclose, directly or indirectly, confidential
damage to their reputation. If the action is information to another person unless the
successful, damages can be awarded along disclosure is required or permitted under this
with other remedies such as an apology and Act.
retraction.
All Hospital and Health Service employees
■■ Criminal Defamation - defamation can also come under the definition of a designated
be a criminal offence under the Criminal person and as such, they must not disclose
Code of Queensland. Criminal defamation patient information.
is when the author has no regards for the
However, the Act outlines several
truth or falsity of the statement and has
circumstances when confidential information is
published it to cause serious harm to the
permitted to be disclosed.
other person. If found guilty, a maximum
punishment of three years imprisonment
Justified disclosure
may be imposed. However, defamation
Disclosure of information is sometimes
disputes are generally civil in nature and an
justified in certain circumstances such as
individual will be prosecuted only when their
public duty.
actions are particularly malicious.
■■ Equity – the duty to preserve confidential
information may lie under the doctrine of
good faith. This broad principle states that
when a party in a position of power receives
confidential information, they must not
disclose it without a valid excuse. To get
equitable relief for breach of confidence,
three elements must be satisfied. First, the
information must be confidential in nature.
Second, there must be an implied duty of
confidence. Third, the information must be
released or threatened to be released to
the detriment of the patient. If the action
is successful, remedies such as equitable All Hospital and Health
damages can be awarded or equitable Service employees...
injunctions can be enforced to stop the
information’s disclosure. must not disclose patient
There are also certain statutory provisions information.
which require the keeping of confidence.

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10
Generally the notion of public interest Disclosure pursuant to the giving of

concerns balancing the benefits and any evidence
detriment of disclosure. There is no common law privilege in respect
For example, disclosure of information to of communications between patients and
law enforcement authorities is justified where health care professionals such as exists
the information is required in the course of between a lawyer and their client.
an investigation of an actual or reasonably
In Hill v Minister for Community Services and
apprehended breach of criminal law.
Health (1991) 102 ALR 66, it was held that in
The law recognises an important public the absence of specific statutory provision,
interest in maintaining professional duties of there is no Australian authority to support a
confidence but these duties may be overridden claim of medical professional privilege.
where there is held to be a stronger public
In the Northern Territory, Tasmania and
interest in disclosure.
Victoria, there has been limited statutory
Some examples of public interest disclosure protection to certain patient/doctor
include reporting of suspected cases of child communications.
abuse and reporting of notifiable diseases.
In all other jurisdictions, a health professional
Under the Hospital and Health Boards Act can be compelled to disclose patient
disclosure is justified where:
information.
■■ it is permitted by an act or law
Consent
■■ the patient has consented to the release of
their information Where the patient has given express or
implied consent there can be no civil action for
■■ the disclosure is for the care or treatment
breach of confidence.
of the person to whom the information
relates Documentation and confidentiality
■■ the disclosure is about the general condition The starting point for understanding
of the patient and is communicated in documentation is that it is for the purpose of a
general terms record.
■■ the disclosure is done to a person who has In the case of a medical record it is to
sufficient interest in the patient’s wellbeing facilitate an optimal patient outcome through
ie. the patient’s regular GP or spouse the accurate, objective, and contemporaneous
■■ the disclosure will prevent or lessen a description of the ongoing care.
serious risk to the health and safety of the The record serves as a method of
patient or public communication from one health professional
■■ the disclosure is made to the Health or group of health professionals, to another.
Ombudsman Records may be used for research purposes,
■■ the disclosure is for the safety and as educational tools, and as documentary
wellbeing of a child. evidence in legal proceedings.

Information
in a hurry
Emergency legal situations Know your rights when making

statements or giving interviews
We strongly suggest that your first Do not make any statements (other than
step is to contact the QNMU, as we simple incident reports) until you have
may need to notify the QNMU PII contacted the QNMU for advice.
insurer.
You are not obliged to give a statement to
Call Member Connect on 3099 3210
the police in relation to any investigation they
or 1800 177 273 (toll-free outside
may be conducting.
Brisbane).
You are only required to give the police your
name and address.
You should always seek advice from the
QNMU before agreeing to be interviewed by,
or giving a statement to police, your employer
or other party (e.g. your employer’s lawyer).
If you believe that any statement you make
may incriminate you or make you liable in an
action for negligence, then you should politely
decline to make any report to any person in
authority until such time as legal advice is
received.
Never be pressured into making a

statement in these circumstances
Refrain from discussing the issue with any
other staff members.

You must be given adequate time to prepare At this stage, you may be asked to submit
and seek advice on any statement you make. an online Member Request for Representation
You should not initially refuse to provide a (RFR) form.
statement, but you should make it clear that
Visit www.qnmu.org.au/rfr to
you require time to prepare and seek advice
access the Member Request for
about the matter.
Representation Form.
If the statement is required in a matter
involving a patient, ask for access to the Note: Some matters have definite
patient’s medical and nursing chart. You must timeframes in which they must be
be given the opportunity to sit down and read dealt with. Please advise the QNMU
the patient’s file before making any statement. as soon as possible if you believe you
Health agencies should maintain records for have a matter which may need legal
at least seven years from the last entry. For assistance.
babies, this period extends to when the child
Employment-related assistance
reaches the age of 21.
The QNMU provides assistance to financial
A guide to accessing legal members for employment-related matters in
representation as a QNMU member the following instances.
The QNMU may provide legal services to 1. Advice is provided for:
financial members for some employment and a. WorkCover claims, including
professional matters, if the matter is one that WorkCover applications and
is not covered by our expert Servicing Team. rehabilitation programs
Assistance may be provided in the form b. Nursing and Midwifery Board of
of advice, representation or referral to legal Australia (NMBA) matters where
practitioners. concerns about your competence,
Unfinancial members (members that health or conduct are raised
owe membership fees of three months in c. anti-discrimination matters prior
accordance with The Rules of the Queensland to lodging a complaint before the
Nurses and Midwives’ Union) are not entitled Anti-discrimination Commission
to legal services or any of the privileges of Queensland
membership.
d. complaints about your conduct as
How to access the QNMU’s legal services a nurse or midwife lodged with the
You should contact the QNMU in the first Office of the Health Ombudsman
instance to discuss your issue with staff on our (OHO). Please note this includes
Member Connect hotline. unregistered AINs/PCAs.
If you are calling from Brisbane, you should 2. Legal representation is provided for:
ring 3099 3210. If you are calling from outside a. NMBA matters where members are
of Brisbane, you should ring 1800 177 273. required to –

Information in a hurry
i. respond to a notification 4. If a member is successful in recovering costs

regarding their conduct, in any proceedings, the Union may seek
competency or health reimbursement from the member of any
costs paid by the Union on the member’s
ii. respond to the particulars of a
behalf in launching the proceedings.
complaint under investigation by
OHO or AHPRA The Union will not seek reimbursement from
the member if costs are not recovered in
iii. appear before the Queensland
the proceedings.
Civil and Administrative Tribunal
(QCAT) after action is taken Please be aware that the Union will not
against them in accordance with pay for any costs which are unable to be
the National Law. recovered from the other party in this event.
b. WorkCover matters where, after The Union will also not pay for costs for
other parties if they are awarded against
receiving advice from the Union’s
a member. (These matters are always
lawyers that your case is more likely
discussed with members involved and
to succeed than not succeed in
they are advised in writing of the Union’s
pursuing a –
determination with respect to the matter of
i. statutory review, and costs.)
ii. an appeal 5. The Union does not provide legal
c. coronial inquests where – representation through its lawyers for the
following types of matters:
i. the death was previously notified
to the QNMU and the insurer in a. criminal proceedings
accordance with the QNMU’s b. defamation claims by members
professional indemnity insurance c. civil claims not accepted by the insurer
policy, and and/or not arising out of employment
ii. the member is summoned to matters.
give evidence before a Coroner’s
Court
d. civil claims of negligence made
against the member which are The Union will not seek
accepted by the insurer.
reimbursement from
3. Members who have a WorkCover claim
accepted may be referred to the Union’s the member if costs are
lawyers for advice only, on their prospects
of success in a common law claim for not recovered in the
negligence against their employer.
proceedings.
This advice is funded by the QNMU.

CPD reflective exercise
Completing this reflective exercise will Exercise for Nurses and

contribute to your Continuing Professional the Law, 5th edition
Development (CPD) hours.
The following questions are offered as a
guide to assist you in reflecting upon the
The Nursing and Midwifery Board of information received or skills applied in the
Australia requires all nurses and midwives
CPD activity.
to complete a minimum of 20 hours CPD
per registration year for each respective 1. Select one chapter between chapter 3
profession for which the individual holds and chapter 10 in Nurses and the Law, 5th
current registration. edition.
For example, an individual who is a 2. What application does the content of this
Registered Nurse and a midwife must chapter have for your context of practice?
complete 40 hours of CPD.
3. After reading the chapter, what were the
Please refer to www.nursingmidwifery
board.gov.au/Registration-Standards.aspx key elements you learnt and how you will
for full details. apply these in the context of your practice?
Effective learning is not simply reading a 4. Can you provide any examples of
journal article — it requires you to reflect on inconsistencies between the chapter
your readings and integrate new information content and the professional practices
where it is relevant to improve your practice. at your workplace? If so, what role can
It should include: you play in improving, changing or raising
■■ looking for learning points/objectives within awareness about this matter in your
the content on which you reflect workplace?
■■ considering how you might apply these 5. After reading the chapter, what personal
in other situations to enhance your
attributes might you maintain, change or
performance
improve for better practice? Why?
■■ changing or modifying your practice in
response to the learning undertaken.
THE FOLLOWING IS AN EXAMPLE ONLY OF A RECORD OF CPD HOURS

(based on the ANMF continuing education packages):
Date Source or Identified Action Type of Description of topic/s Reflection on activity No./Title/ CPD
provider learning Plan activity covered during and specification to Description hours
details needs activity and outcome practice of evidence
provided
01-09- InScope Increase Read Self- Criteria and resources Answered reflective Journal 2.5
2017 Journal knowledge re article and directed relevant to delegation exercise questions. Read article with hrs
Delegation & answer and required levels relevant NMBA codes & reflective
Supervision reflective of supervision. guidelines. Translated exercise
questions Increased knowledge knowledge into practice questions.
re delegation and and discussed with
supervision of EN/AIN. colleagues.

Bibliography and resources
Legal texts ■■ Endorsement for scheduled medicines

Butterworths Concise Australian Legal registered nurses (rural and isolated
Dictionary, 2nd Edition (1998). Butterworths practice) registration standard
Australia, citing R v Bateman (1925) 19 Cr App Codes and Guidelines
R 8.
www.nursingmidwiferyboard.gov.au/
Forrester, K & Griffiths, D. Essentials of law
Codes-and-Guidelines.aspx
for health professionals, 2nd Edition (2005).
Elsevier. Marickville, New South Wales.
■■ Guidelines and Assessment Frameworks for
Gilbert, Christopher D. Queensland Registration Standards
Administrative Law. (1994). Law Book Co.
■■ Professional Practice Guidelines
Sydney
■■ Competency Standards
Staunton, P & Chiarella, M. Nursing and the Law,
8th Edition (2016). Elsevier Australia. Sydney. ■■ Code of Ethics and Professional Conduct
The Queensland Law Handbook (online ■■ Principles for the Assessment of National
edition). Caxton Legal Centre Inc. Brisbane. Competency Standards
https://queenslandlawhandbook.org.au/the- ■■ Decision Making Framework
queensland-law-handbook/ ■■ Professional Boundaries
NMBA materials Other materials

Registration standards Ainsworth, Frank. Mandatory reporting of child
abuse and neglect: Why would you want it?
www.nursingmidwiferyboard.gov.au/
[online]. Developing Practice: The Child, Youth
Registration-Standards.aspx
and Family Work Journal; 4; Winter 2002; 5-8.
■■ Registration standard for eligible midwives Australian Commission on Safety and Quality
in Health Care.
■■ Registration standard for endorsement for
www.safetyandquality.gov.au
scheduled medicines for midwives
Cashmore, Judy. Mandatory reporting: Is it
■■ Criminal history registration standard
the culprit? Where is the evidence? [online].
■■ English language skills registration Developing Practice: The Child, Youth and
standard Family Work Journal; 4; Winter 2002; 9-12.
■■ Professional indemnity insurance Harries, M & Clare, M. Mandatory Reporting
registration standard of Child Abuse: Evidence and Options. [online].
■■ Continuing professional development (CPD) Report by the Discipline of Social Work and
registration standard Social Policy, University of Western Australia,
for the Western Australian Child Protection
■■ Recency of practice registration standard
Council; July 2002. www.celt.uwa.edu.
■■ Endorsement of nurse practitioner’s au/__data/assets/pdf_file/0009/1102131/
registration standard MRFinalReport.pdf

Health Care Improvement Unit. Queensland The Health (Drugs and Poisons) Regulation
Government Clinical Excellence Division. 1996: What Nurses Need to Know.
https://clinicalexcellence.qld.gov.au/about-us/ Environmental Health Unit, Queensland
what-we-do/healthcare-improvement-unit Health; April 2000.
Hill v Minister for Community Services and Tomison, Adam. Mandatory Reporting: A
Health (1991) 102 ALR 66. Question of Theory versus Practice [online].
Holland, G. Mandatory reporting of abuse: The Developing Practice: The Child, Youth and
influence of legislation on doctors’ reporting Family Work Journal; Issue 4; Winter 2002;
behaviour. Youth Studies Australia; vol 18; no 13-17.
2; 1999; 30-36.
Websites of interest
Lister v Romford Ice (1957) AC 555; Wylie v. ■■ Ageing and Aged Care (Federal
The ANI Corporation Ltd [2002] 1 Qd. R. 320. Department of Health)
Minister for Health & Minister for Sport, https://agedcare.health.gov.au/
Media Release “e-Health Record Review”; 20 ensuring-quality/aged-care-quality-
and-compliance/aged-care-quality-and-
December 2013.
compliance-resources
Minister for Health & Minister for Sport, Media ■■ Anti Discrimination Commission Queensland
Release “Report into the Personally Controlled www.adcq.qld.gov.au
Electronic Health Record”; 19 May 2014. ■■ Australian Commission on Safety and
Office of the Australian Information Quality in Health Care
Commissioner. www.oaic.gov.au www.safetyandquality.gov.au
■■ Australian Digital Health Agency
Open Disclosure Framework. Australian Open
www.digitalhealth.gov.au
Disclosure Standard. Australian Commission
■■ Australian Health Practitioner Regulation
on Safety and Quality in Healthcare.
Authority www.ahpra.gov.au
www.safetyandquality.gov.au/publications/
australian-open-disclosure-framework ■■ Australian Nursing and Midwifery
Accreditation Council www.anmac.org.au
Office of the Information Commissioner
■■ Department of Health www.health.gov.au
Queensland. www.oic.qld.gov.au
■■ Fair Work Commission www.fwc.gov.au
Quinton, P. Mandatory Reporting paper ■■ Fair Work Ombudsman
prepared by Peter Quinton. Issues paper (ACT www.fairwork.gov.au
Community Law Reform Committee) no. 9; ■■ Federal Register of Legislation
1991. Australian Capital Territory Community www.legislation.gov.au
Law Reform Committee. Canberra. ■■ My Health Record
Resource Sheets; Resource Sheet No 3 www.myhealthrecord.gov.au
August. Mandatory reporting of child ■■ Office of the Australian Information
abuse. 2007, National Child Protection Commissioner www.oaic.gov.au
Clearinghouse, Australian Institute of Family ■■ Office of the Information Commissioner
Studies. Queensland www.oic.qld.gov.au

Bibliography and resources
■■ Office of the Queensland Parliamentary ■■ Family Law Act 1975 (Cth)

Counsel – Queensland Legislation ■■ Freedom of Information Act 1982 (Cth)
www.legislation.qld.gov.au/OQPChome.htm
■■ Guardianship and Administration Act 2000
■■ Nursing and Midwifery Board of Australia (Qld)
www.nursingmidwiferyboard.gov.au
■■ Health Act 1937 (Qld)
■■ Queensland Nurses and Midwives’ Union
■■ Health (Drugs and Poisons) Regulation
www.qnmu.org.au
1996 (Qld)
■■ Queensland Industrial Relations
■■ Health Practitioner Regulation National Law
Commission (QIRC) www.qirc.qld.gov.au
Act 20
■■ Industrial Relations (Queensland Treasury)
■■ Hospital and Health Boards Act 2011 (Qld)
www.treasury.qld.gov.au/fair-and-safe-
work/industrial-relations ■■ Health Ombudsman Act 2013 (Qld)
■■ The Queensland Law Handbook ■■ Industrial Relations Act 2016 (Qld)
https://queenslandlawhandbook.org.au/ ■■ Information Privacy Act 2009 (Qld)
the-queensland-law-handbook ■■ Invasion of Privacy Act 1971 (Qld)
■■ Workplace Health and Safety Queensland ■■ Law Reform Act 1995
www.worksafe.qld.gov.au
■■ Mental Health Act 2016 (Qld)My Health
■■ WorkCover Queensland Records Act 2012 (Cth)
■■ Police Powers and Responsibility Act 2000
■■ Workers’ Compensation Regulator (Qld)
■■ Powers of Attorney Act 1998 (Qld)
Legislation ■■ Privacy Act 1988 (Cth)
■■ Aged Care Act 1997 (Cth) ■■ Private Health Facilities Act 1999 (Qld)
■■ Age Discrimination Act 2004 (Cth) ■■ Public Health Act 2005
■■ Anti-Discrimination Act 1991 (Qld) ■■ Public Interest Disclosure Act 2010
■■ Child Protection Act 1999 (Qld) ■■ Public Service Act 2008
■■ Coroners Act 2003 (Qld) ■■ Queensland Civil and Administration
■■ Civil Liability Act 2003 (Qld) Tribunal Act 2009 (QCAT)
■■ Criminal Code Act 1899 (Qld) ■■ Right to Information Act 2009 (Qld)
■■ Criminal Law (Rehabilitation of Offenders) ■■ Sex Discrimination Act 1984 (Cth)
Act 1986 (Qld) ■■ Transplantation and Anatomy Act 1979
■■ Defamation Act 2005 (Qld) (Qld)
■■ Disability Services Act 2006 (Qld) ■■ Workplace Health and Safety Act 2011 (Qld)
■■ Fair Work Act 2009 (Cth) ■■ Workplace Health and Safety Regulation
■■ Fair Work (Transitional Provisions and 1997
Consequential Amendments) Act 2009 ■■ Workers’ Compensation and Rehabilitation
(Cth) Act 2003
■■ Fair Work (Registered Organisations) Act ■■ Working with Children (Risk Management
2009 (Cth) and Screening) Act 2000 (Qld)

Contact us
BRISBANE
106 Victoria Street
West End Q 4101
GPO Box 1289, Brisbane Q 4001
Telephone: (07) 3840 1444
Fax: (07) 3844 9387
BUNDABERG ROCKHAMPTON
44 Maryborough Street 286 Quay Street
Bundaberg Q 4670 Rockhampton Q 4700
PO Box 2949, Bundaberg Q 4670 PO Box 49, Rockhampton Q 4700
Telephone: (07) 4199 6101 Telephone: (07) 4922 5390
Fax: (07) 4151 6066 Fax: (07) 4922 3406
CAIRNS TOOWOOMBA
6/321 Sheridan Street 66 West Street
Cairns North Q 4870 Toowoomba Q 4350
PO Box 846N, Cairns North Q 4870 PO Box 3598 Village Fair Q 4350
Fax: (07) 4051 6222 Fax: (07) 4639 5052
GOLD COAST TOWNSVILLE

14 Ashmore Road 53 Thuringowa Drive
Gold Coast Q 4217 Kirwin Q 4817
PO Box 5648, Gold Coast Q 9726 PO Box 4553, Kirwin Q 4817
Fax: (07) 4721 1820
MEMBER CONNECT
(07) 3099 3210 or

1800 177 273 (toll free for outside Brisbane)
qnmu@qnmu.org.au
www.qnmu.org.au

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Nurses

CH CHAPTER 6: Bibliography 150

NURSES AND THE LAW 5th EDITION 1

Welcome to the 5th edition of Nurses and the Law.

Beth Mohle Sandra Eales

2 NURSES AND THE LAW 5th EDITION

T his book is designed to be a practical

If you are a QNMU member and need

NURSES AND THE LAW 5th EDITION 3

General information – legal Regulatory Authority (Workers’

These include: ■■ those convened by OHO/AHPRA/NMBA

■■ Coronial Inquests ■■ Coronial Inquests—when the member is

4 NURSES AND THE LAW 5th EDITION

Members with work-related

NURSES AND THE LAW 5th EDITION 5

OHO/AHPRA/NMBA matters WorkCover claims

Employment matters It is also vitally important that if you believe

6 NURSES AND THE LAW 5th EDITION

■■ a free standard will service; ■■ family law, including:

NURSES AND THE LAW 5th EDITION 7

◆◆ mediation ◆◆ estate planning;

8 NURSES AND THE LAW 5th EDITION

W e all operate and function within the

NURSES AND THE LAW 5th EDITION 9

Statute Law The states

10 NURSES AND THE LAW 5th EDITION

NURSES AND THE LAW 5th EDITION 11

The differences between civil and

12 NURSES AND THE LAW 5th EDITION

NURSES AND THE LAW 5th EDITION 13

14 NURSES AND THE LAW 5th EDITION

Duty of care ■■ whether the defendant knew or ought

Some examples of those recognised A duty of care arises between a health

NURSES AND THE LAW 5th EDITION 15

Duty of care to third parties Compliance with policies and procedures

16 NURSES AND THE LAW 5th EDITION

T he National Registration and

NURSES AND THE LAW 5th EDITION 17

Health Practitioner Regulation The Ministerial Council (MINCO) is empowered

18 NURSES AND THE LAW 5th EDITION

Pursuant to s.35 of the National Law the

body which supports, b. determining the requirements for

its state Boards. c. developing or approving standards, codes

NURSES AND THE LAW 5th EDITION 19

undertakings and suspensions imposed on Section 52 provides that a person is eligible

b. The person holds a qualification equivalent d. public interest limited registration

20 NURSES AND THE LAW 5th EDITION

f. endorsement for nurse practitioners

Registration standards Criminal history registration standard

NURSES AND THE LAW 5th EDITION 21

22 NURSES AND THE LAW 5th EDITION

However the standard has been reviewed by

NURSES AND THE LAW 5th EDITION 23

24 NURSES AND THE LAW 5th EDITION

NURSES AND THE LAW 5th EDITION 25

How do I meet the NMBA’s PII

The following section addresses questions c. automatic reinstatement and

26 NURSES AND THE LAW 5th EDITION

AHPRA may audit your compliance with If I am a nurse operating as an independent

NURSES AND THE LAW 5th EDITION 27

Insurance issues for midwives antenatal and postnatal care to women in

28 NURSES AND THE LAW 5th EDITION

NURSES AND THE LAW 5th EDITION 29