How our legal team see it - The Code of Conduct

28 February 2018


Mr Phill Tsingos
President Nurses Professional Association of Queensland inc
PO Box 6279
Mooloolah QLD 4553
By Email : president@npaq.com.au

 

Dear Mr Tsingos

Nurse and Midwifery Board of Australia Codes of Conduct for nurses and midwives (“The Codes”)

We have been asked by the NPAQ to express a view on the Codes of Conduct.

This is a joint opinion for Worker Law and advocacy firm Discrimination Claims. We act for many
exposed to discrimination at work, in service provision and tenancies. However, we hold grave
concerns for the new Nursing and Midwives codes of conduct. The reasons are elaborated below.


1. Cultural Safety is neither about creating safe interactions or culturally respectful nursing and
midwives patient care.

2. Clause 3.2(a) of the Codes puts the consumer of the health service as the final arbiter of
cultural safety. Nowhere else does the customer, the patient and families of nurses and
midwives, have such disproportionate power.

3. In reading the Codes, it does bring the most controversial part of the Commonwealth Racial
Discrimination Act '18C' - where the recipient is the final arbiter and weighs a dangerous
subjective test, well beyond Queensland anti-discrimination laws and safety laws.

4. The previous Code already deals well with Communication and Professionalism as most
professional bodies have this. It adequately protects patients from inappropriate behaviour or
communication.

5. However, 3.2(a) of the Codess changes fair, manageable and transparent standards to being a
moving target that would be impossible to train or prepare for, especially if the patient is
distressed, in pain or mentally frail.

6. The balance of Clause 3.2 of the Codess is rightfully the employer's responsibility to train and
educate as contemplated in Queensland anti-discrimination laws.

7. Now nurses and midwives bear that burden and could lose their registration or have
conditions applied, just because the boss didn't train them well. This flips the fundamental job
of employers on its head, as nurses and midwives hold their registration, not the boss.

8. In Queensland, the Anti-discrimination act protects a person, including nurses and midwives
from claims where it states "A person may do an act that is reasonably necessary to protect
the health and safety of people at a place of work."

9. There is no mention of "cultural safety" as that legislation adequately protects the community
through strong racial discrimination and vilification laws.

10. The confluence of "cultural safety" morphs three distinct areas of law, being conducting work
safely, including clinical safety, fair and well-considered protections by parliament, our elected
officials in Discrimination in goods and services area including for race or religion.

11. This concept of "cultural safety" only for nurses and midwives re-writes discrimination laws
and safety laws in that a nurse or midwife may lose their ability to nurse because the patient
or their family determines them to be (culturally) unsafe.

12. While it is yet to see how Australian Health Practitioner Regulation Agency (AHPRA) will deal
with complaints, nurses and midwives are their own cultural trainer, the patient and their
families sets the rules and important discrimination and safety protections are being conflated
to be "culturally safe", when really what the Codes is doing is trumping existing WH&S and
Anti-Discrimination laws.

13. In a recent case, the Fair Work Commission deferred to AHPRA's decision. A sacked aged care
nurse Francis Logan has won back his job, after being sacked for kissing a patient.

14. Mr Logan’s employer, Bendigo Health, has been ordered to reinstate Mr Logan, after sacking
him for violating nurse-patient boundaries.

15. In particular, recommendations made by the profession’s regulator, the Australian Health
Practitioner Regulation Agency, which suggested that rather being sacked, Mr Logan be
cautioned to “abide by the Codes of professional conduct for nurses by maintaining
professional boundaries”.

16. In Mr Logan's case, he won his job back, partly because AHPRA took a more conservative view.
But what if these new cultural safety sections send AHPRA down a firmer path?

17. The Fair Work Commission recently deferred to AHPRa.But what if the FWC defers to tougher
sanctions now that Cultural Safety is a consideration factor?

18. Queensland already has exceptionally strong WH&S laws and Anti-discrimination laws, that
put much of the responsibility to the employer to train and protect. Now, when it comes to
cultural safety, there is a subclass of clinicians, being Nurses and Midwives who have to work
by different rules, compared to working shoulder to shoulder with every other clinician in the
place.

 

 

Sign the Petition to stop nurses and midwives losing their registration and right to practice solely because a patient doesn't like their 'bedside manner' with respect to race or culture.