In this edition: AHPRA’s revised guidelines for advertising a regulated health service, Award entitlements for aged care, Health and support services casuals, Russell Kennedy Principal to Chair new Advisory Group, Australia’s first breast milk fortifier for premature babies, Statutory Duty of Candour consultation paper released.
The latest insights from our Health Law team:
Time for health practitioners to check their advertising
FWC: Award entitlements for aged care, health and support services casuals
Russell Kennedy Principal to Chair new Advisory Group to explore patient information sharing amongst hospitals
Australia’s first breast milk fortifier for premature babies
Statutory Duty of Candour consultation paper released
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Time for health practitioners to check their advertising: AHPRA’s revised guidelines for advertising a regulated health service to come into force
Following a public consultation which ended in November 2019, the Australian Health Practitioner Regulation Agency (AHPRA), along with the National Boards, has published an advance copy of the Guidelines for advertising a regulated health service (revised Guidelines). The revised Guidelines are set to come into effect on 14 December 2020 and replace the previous edition of the Guidelines.
Anyone who advertises a regulated health service should review and adjust their advertising practices to ensure that they comply with the revised Guidelines.
Section 133 of the Health Practitioner Regulation National Law (National Law) lays out the core obligations of health practitioners relating to advertising. This section prohibits, among other things, advertising a regulated health service in any way that is false, misleading or deceptive, uses testimonials, or creates an unreasonable expectation of beneficial treatment. Penalties for breaching these obligations include $5,000 per offence for individuals, $10,000 per offence for body corporates and the potential for restrictions being placed on a health practitioner’s registration which could affect their ability to practice their profession.
The Guidelines were originally developed to help advertisers (including registered health practitioners) understand and meet their advertising obligations contained in the National Law. The Guidelines were reviewed in line with sound regulatory practice, with an aim to ensure that health practitioners continue to “put the public first” and “support members of the community to make informed choices about their healthcare”.
Key changes to the Guidelines include:
- Further clarification relating to testimonials, protected titles and claims about registration, competence and qualifications;
- New content relating to the evidence required for claims about the effectiveness of a regulated health service;
- New flowcharts to help assess when advertising needs to be supported by acceptable evidence and whether a review is considered a testimonial; and
- Re-production of content so that information is more easily located.
In addition to the revised Guidelines, AHPRA has also published a revised Advertising compliance and enforcement strategy for the National Scheme (Strategy) (available here). The Strategy was drafted with a view to improving voluntary compliance with advertising requirements and explaining the regulatory approach of AHPRA and the National Boards.
Read AHPRA’s publication relating to the revised Guidelines here.
FWC: Award entitlements for aged care, health and support services casuals
The Fair Work Commission (Commission) has recently confirmed that overtime calculations for casuals under the Aged Care Award 2010 and the Health Professionals and Support Services Award 2020 (the Awards) must include casual loading. The Commission upheld a decision from August this year when determining that the meaning of “time’ in the expressions “time and a half”, “double time” and “double time and a half” meant “ordinary time rate of pay”. For a casual worker under the Awards, that includes casual loading.
This decision applies directly to those employed under the Awards, and may have an impact moving forward on those covered by enterprise agreements.
You can read more about this here in the recently published Alert from Russell Kennedy’s Workplace Relations, Employment and Safety Team.
Russell Kennedy Principal to Chair new Advisory Group to explore patient information sharing amongst hospitals
The Victorian Government has appointed a Health Information Sharing Legislation Advisory Group, chaired by Russell Kennedy Principal Michael Gorton AM to explore information sharing amongst public hospitals in Victoria.
It is a key consideration of the Advisory Group that any proposal it puts forward does not replicate the national My Health Record. The Advisory Group will consider privacy and consent matters, and measures that can be put in place to prevent improper use and access to personal and sensitive health information.
The intent of the Advisory Group is to enable public hospitals to safely and securely share electronic patient records, in close to real time. This means that in emergency situations, full patient records can be made available to treating practitioners, at the point of care. Such regimes are already in place in other Australian states.
The Advisory Group intends to make recommendations for legislation in 2021.
Australia’s first breast milk fortifier for premature babies
In collaboration with CSIRO, Lifeblood Milk and South Australian Health and Medical Research Institute (SAHMRI) have created a “milk fortifier” prototype to assist premature and low-weight babies grow and develop.
Babies born less than 1500 grams and before 32 weeks gestation often need extra nutrients to assist with their development. Whilst a milk fortifier made from cow’s milk is currently available, there is currently no fortifier made from breast milk.
Cow’s milk proteins can be difficult to digest for premature babies and may increase the risk of the gut disease necrotising enterocolitis, A breast milk based milk fortifier could give babies extra nutrition without exposing them to cow’s milk products. In developing the prototype, the CSIRO has worked with Lifeblood Milk and the SAHMRI to adjust the ratios of fat, protein, carbohydrates and calories in donated breast milk to make it best for premature babies.
In a recent announcement Lifeblood Milk, SAHMRI and the CSIRO discussed the development of the prototype and the next steps to perfect the process and scale up production in order to start clinical trials. To read the announcement and find out more about the diverse consortium of parents, researchers, clinicians and other experts developing a range of human donor milk-based products, click here.
For more information on SAHMRI, click here, and to donate to or learn about Lifeblood Milk, click here.
The
Victorian Government has announced that it will release a consultation paper on
the introduction of a legislative duty of candour in hospitals. This
follows a report published by an expert working group chaired by Russell
Kennedy Senior Principal Michael Gorton AM recommending such a duty be
introduced, similarly to the existing duty in health services in the United
Kingdom.
The
duty of candour requires hospitals to explain to patients any harm suffered to
the person during their care, including an explanation of occurred, what went
wrong and what remediation actions may be taken. The hospital would also
be required to apologise. The consultation paper will seek to draw out
intricacies to ensure that the proper balance of patients’ rights and hospital
investigations into practitioner conduct.
The
Victorian Minister for Health, Martin Foley has said that “These new laws will ensure that in those few instances
when something does go wrong, patients will always get the answers they need
and lessons are always learned”. All recommendations from the report have
been accepted in principle.
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