Since the commencement of the Health Legislation Amendment (Quality and Safety) Act 2022, questions have arisen around the potential overlap of the Health Services Act 1988 (Vic)(HS Act) and the Occupational Health and Safety Act 2004 (OHS Act).
Under the OHS Act, employers and self-employed persons must notify WorkSafe Victoria immediately after becoming aware that a notifiable incident has occurred. Health service entities also have a responsibility to comply with the HS Act by conducting the statutory duty of candour (SDC) when a serious adverse patient safety event (SAPSE) has occurred. The commencement of a WorkSafe investigation under the OHS Act does not override the requirement for health service entities to comply with its obligations in the HS Act to commence or continue the SDC process, or to commence or continue any associated SAPSE review process.
Visit the WorkSafe Victoria website for information on notifiable incidents that need to be reported to them. If you have any questions regarding notifiable incidents, contact WorkSafe Victoria on 1800 136 089 or complete the online form. You should also consult your legal counsel.
1. To what extent is there an overlap between events that are classed as SAPSEs and incidents that are reportable to WorkSafe under Part 5 of the OHS Act?
The following incidents that arise from a ‘work-related activity’ of a health service or the conduct of the health service, are likely to constitute both SAPSEs (as they constitute ‘harm’ as defined in the Health Services (Quality and Safety) Regulations 2020 (the Regulations) and ‘notifiable incidents under Part 5 of the OHS Act: incidents occurring at a health service that result in:
(a) the death of a person
(b) a person requiring medical treatment within 48 hours of being exposed to a substance
(c) a person requiring immediate treatment as an in-patient in a hospital
(d) a person requiring immediate medical treatment for one of the following injuries: amputation, serious head injury or serious eye injury, removal of skin (example: de-gloving, scalping), electric shock, spinal injury, loss of a bodily function, serious lacerations (example: requiring stitching or other medical treatment).
Duty to notify of incidents – OHS Act
In Victoria, an employer has a duty to notify WorkSafe immediately after becoming aware of an incident that results in the above listed circumstances, when the incident occurs at a workplace.
Only incidents that are work-related or that have arisen out of work-related activities need to be notified to WorkSafe. Health service entities should assess each incident on a case-by-case basis to determine whether the duty to notify WorkSafe arises.
2. Are there any powers under the OHS Act that may override the protections of a SAPSE review and SAPSE review report under Division 8 of the HS Act?
No, the compulsive powers in the OHS Act do not override the protections provided to SAPSE reviews and SAPSE review reports by the HS Act. Section 128U(1) of the HS Act provides that a health service must not be required to produce a SAPSE review report, or specified information or documents, to any court, tribunal, board, agency or other person (unless an exception is provided in the HS Act (i.e., to the Coroner's Court during an investigation/inquest).
3. When WorkSafe commences an investigation into a possible offence under the OHS Act, should the health service entity commence or continue with the SDC process and any associated SAPSE review process?
Yes. The commencement of a WorkSafe investigation under the OHS Act does not override the requirement for health service entities to comply with its obligations in the HS Act to commence or continue the SDC process, or to commence or continue any associated SAPSE review process.
However, if a health service decides to undertake a SAPSE review, they must understand what they can legally share with WorkSafe. A potential risk arising from a concurrent SAPSE review process and WorkSafe investigation is the incidental or unauthorised provision of information to WorkSafe when that information is not permitted to be disclosed.
A set of guidelines setting out the legal restrictions on disclosure and the obligations of confidentiality to inform participants of their obligations and the requirements of the HS Act is likely to significantly ameliorate the risk of incidental disclosure to WorkSafe.
4. Does the commencement of an investigation by WorkSafe mean a SAPSE review panel must suspend its activities under section 128Z of the HS Act?
No, under section 128Z of the HS Act, a SAPSE review panel is required to suspend its activities if members of the panel have reason to suspect that its review may relate to an adverse event that involves a prohibited act. The commencement of a WorkSafe investigation does not mean that a prohibited act has occurred that would warrant the SAPSE review panel suspending its activities.
A prohibited act is defined in section 128Z(3) of the HS Act and expressly includes, among other things, an act that is an offence that appears to have been committed by a member of staff, an act where a staff member or other person involved may have an impairment, or an act that constitutes the abuse of a patient or a deliberately unsafe act.
If the members of the panel form the view that a prohibited act has occurred, or if the panel suspects that it has, it should (in accordance with s 128Z) suspend its activities and follow the procedures prescribed in section 3F of the Regulations.
5. Can health service staff speak to WorkSafe when a SAPSE review has commenced? What information can they legally provide if they’re interviewed?
SAPSE review panel members: Members of SAPSE review panels should decline to speak with WorkSafe, if it would result in the disclosure of information acquired by the person in the performance of their functions as a SAPSE review panel member under the HS Act. This is because section 128X of the HS Act imposes confidentiality obligations on current and former members of a SAPSE review panel. A person who is or has been a member of the SAPSE review panel is not permitted to disclose 'any information acquired by the person in the performance of functions under the HS Act', unless that information is disclosed 'in the performance of functions under the HS Act relating to a SAPSE review'.
Healthcare staff should note that section 128Y of the HS Act prohibits a health service entity that has appointed a SAPSE review panel, or a member of staff of the health service, from disclosing the identity of any member of the panel other than for a proceeding under that part of the Act. This prohibition creates a difficulty for members of the panel where WorkSafe requests that they be interviewed, and they decline to do so due to the confidentiality obligations in section 128X. Health services will need to interrogate the basis upon which WorkSafe makes such a request and review this on a case-by-case basis.
Healthcare staff that provided information to the SAPSE review panel: Health service staff who have provided information to the SAPSE review panel can speak to WorkSafe about matters relevant to the WorkSafe investigation but cannot be required to answer questions from WorkSafe or provide information in relation to the matters specified in section 128W of the HS Act. Namely, they cannot communicate:
- whether they gave information to the SAPSE review panel for the purpose of the review,
- what information they gave to the SAPSE review panel for the purposes of the review, and
- information they were given or questions they were asked by a SAPSE review panel for the purposes of the review.
We recommend that health services provide staff with detailed information about their confidentiality obligations under the HS Act, information about any documents that they have provided to the SAPSE review panel, as well information about restrictions on the disclosure of that information.
Healthcare staff that did not provide information to the SAPSE review panel: There is no relevant prohibition that would preclude this category of health service staff members from speaking to WorkSafe or providing information.
6. Can a health service provide part of a SAPSE review report (i.e. the recommendations) to WorkSafe when issued with an improvement notice under either section 60 or section 111 of the OHS Act?
No. Section 128U of the HS Act prevents a SAPSE review report – which would include its recommendations – from being disclosed to any court, tribunal, board, agency or person, unless an exception is provided in the HS Act (i.e. to the Coroner's Court in the course of an investigation/inquest). Therefore, an improvement notice issued by WorkSafe for a SAPSE review report (or part of the report) does not override the protections provided by the HS Act in relation to that report.
Question 7: If a patient of a health service entity suffers harm and injury (including suicide) in the patient’s home in the community, is this incident a notifiable incident under section 38 of the OHS Act?
Section 5 of the OHS Act defines 'workplace' as a place, whether or not in a building or structure, where employees or self-employed person’s work. This broad definition of workplace could conceivably include places used for residential purposes, where employees of health services work. However, the inclusion of the words 'under the management and control of the employer' in section 38 of the OHS Act, operates to exclude those settings where the employer does not have management or control of the workplace. Where a patient of a health service entity suffers harm and injury in the patient's home in the community and a health service staff member was not present in the home, it would not be considered that the workplace was 'under the management and control of the employer'. Therefore, the obligation to notify would likely not arise.
If a health services’ employee is working from a patient’s residence and an incident of harm arises from a ‘work-related activity’ of a health service or the conduct of the health service, the health service should carefully assess whether the matter should, out of an abundance of caution, be notified to WorkSafe.
8. Can an employee from WorkSafe be appointed on a SAPSE review panel?
It would be inappropriate for any employee of WorkSafe to be appointed to a SAPSE review panel. This is because they would have a conflict of interest and would not be able to comply with the confidentiality obligations applying to members of the SAPSE review panel in section 128X of the HS Act if they proposed to report back to WorkSafe on the functioning of the SAPSE review panel.
9. How will health services comply with their SDC obligations when there is a concurrent criminal proceeding?
Where a SAPSE is the subject of a criminal proceeding, health services will need to consider how they will comply with their SDC obligations. We recommend that health services seek legal advice in these circumstances as the SDC process is likely to need to be modified. For example, the protection in section 128ZD of the HS Act for apologies only applies in civil proceedings, not criminal proceedings.
We will consider this aspect when reviewing the Victorian Duty of Candour Guidelines and consider the inclusion of further guidance in the next version.
Should you have any queries in relation to the SDC or SAPSE review process, please contact our project team at dutyofcandour@health.vic.gov.au and find further resources on our SDC webpage.