Working with allied health assistants
Allied health assistants are increasingly involved in the care of physiotherapy patients. BMS and Scott Shelly and Ashlee Sherman of Barry Nilsson Lawyers discuss the legal ramifications and explain how to mitigate potential risks.
In recent years, the demand for allied health assistants (AHAs) has grown rapidly and there are now approximately 21,800 AHAs across Australia.
To help fill the gaps within aged care, disability and other health sectors, physiotherapists are increasingly working with AHAs. Sometimes even unknowingly.
Here we explore the risks of working with AHAs, the nuances of emerging third parties in the workforce, the cover offered by the APA Member Insurance Program and what you can do to mitigate risk.
What is an allied health assistant?
AHAs work with allied health practitioners to help facilitate patient care. They are often trained within a scope of practice and allied health practitioners supervise them either directly or indirectly while delegating tasks to the AHA.
AHAs could be graduates looking to explore a profession before committing or professionals opting for a flexible work model.
Some AHAs are contractors and others are employed directly by physiotherapists. AHAs are unregulated by Ahpra.
What are the risks?
Clinical scenario one
Imagine you have a patient recovering from a sports-related injury. You put together their treatment plan and an AHA whom you’ve hired as a contractor will help them work through their treatment over the next two months.
Two months later, the patient decides to file a claim against you, suggesting that the treatment plan and the AHA failed them.
Under these circumstances, your APA professional indemnity insurance alone would not cover you.
However, entity insurance could help cover you and the AHA. Because the AHA is employed by your physiotherapy clinic and there is a working relationship between you and the AHA (despite the AHA being a contractor), your entity insurance could step in.
Speak with BMS to determine if entity insurance could help fill gaps in your cover.
Clinical scenario two
Imagine that you don’t work directly with an AHA and you give a treatment plan to your patient with a disability.
Your patient decides to continue treatment with an outsourced AHA who is part of a third party (without your knowledge).
The patient is injured during a treatment session with the AHA and decides to file a claim. Who is liable in this scenario?
It may come as a surprise, but you could be held liable if your treatment plan did not explicitly outline that the instructions given were for the patient only.
It’s also worth noting that your APA professional indemnity insurance policy would not apply in this circumstance and the same is true of your entity insurance policy (if you carry one).
What are some best practices for mitigating your risk?
This section of the article has been co-authored by Scott Shelly and Ashlee Sherman of Barry Nilsson Lawyers.
It is crucial to employ clear and straightforward language when communicating with patients.
When providing a patient with a treatment or exercise plan, you may wish to explain that it is provided to the patient for their use only.
It is important to ensure that you take into account a patient’s health literacy when communicating with them and address any queries the patient may have.
Notes and note-taking
Do you take clear and detailed clinical notes? Your notes should give you a record of all communication with patients.
Taking effective notes will help you keep track of client care and any explanations provided but also serve as a defence in the event that a patient or client makes a complaint.
Conduct regular check-ins
Physiotherapists must appropriately supervise an AHA. This may include conducting regular check-ins and supervision.
Risk mitigation for clinics
Clinics may wish to implement training for all staff on working with AHAs, the provision of treatment plans or exercise programs, effective communication and note-taking.
It may be helpful for clinics to organise regular meetings with staff to discuss working with AHAs or the potential involvement of AHAs in patient care.
Clinics may also consider developing and implementing policies regarding working with AHAs.
If you have concerns about working with an AHA, you should seek assistance including from a senior colleague.
What could your APA member insurance policy cover?
Your APA member insurance policy includes professional indemnity insurance, which helps to protect you against allegations or claims of financial loss due to injury or damages that have resulted from a negligent act, error, omission, malpractice or breach of duty that has arisen out of your professional duty.
In other words, if a client files a claim against you because of an injury or damages that they believe are due to a failure of your professional services, professional indemnity insurance could provide cover.
Examples of claims might include:
• acting in a negligent manner
• making a mistake
• excluding something you shouldn’t have
• not working to an expected level of professionalism.
In the event of a claim or allegation, professional indemnity insurance could help with your legal defence and pay for claims made against you.
It could also cover the cost of patient compensation or damages.
However, if a claim is made against you and your employee (eg, if you employ an AHA), you will require entity insurance to be covered.
Whether your employee is a contractor or on direct payroll does not affect your cover.
Professional indemnity and entity insurance under your APA member insurance policy does not cover you for claims associated with third parties (such as outsourced AHAs who work for a third party).
When it comes to outsourced AHAs, including a disclaimer in the instructions or treatment plan given to your patient could help reduce your risk.
How can BMS help?
BMS is the official insurance broker for the APA. As an APA member, you have exclusive access to a range of insurance options to cover yourself and your business, including entity insurance. Speak to BMS for more information on 1800 931 068 or email firstname.lastname@example.org.
This article was written by BMS, with risk-mitigation best practices covered by Scott Shelly and Ashlee Sherman of Barry Nilsson Lawyers.
>> Disclaimer: Barry Nilsson Lawyers communications are intended to provide commentary and general information. They should not be relied upon as legal advice. Formal legal advice should be sought in particular transactions or on matters of interest arising from this communication.
In arranging this insurance for our members, the APA is acting as a distributor of BMS Risk Solutions Pty Ltd (BMS) AFSL 461594, ABN 45161187980. The insurance is issued by BMS under binder with Certain Underwriters at Lloyds. When acting under a binder BMS acts as agent for the insurer and not as your agent. This is general advice only and BMS have not considered whether it was suitable for your personal objectives, needs or financial situation. Please read the Policy Wording and Financial Services Guide before making any decision about purchasing this policy.
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