Remote recall decision

11-Sep-2020


Background:

DiTs being (or not being) paid for remote recall has been and continues to be a significant problem.

Following frequent, and often unsuccessful representations on behalf of individual members by ASMOF to LHDs and the Ministry ASMOF notified of an Industrial Dispute in October 2017.

Following the preparation of key evidence and the IRC hearing the matter on 4, 9 & 10 July & 22 August 2018,the now retired Chief Commissioner Kite handed down his decision on 12/8/20 in the Remote Recall Case: Australian Salaried Medical Officers’ Federation (New South Wales) (No 2) v The Secretary of Health [2020] NSWIRComm 1052 .

Unfortunately this decision did not resolve the problem. The Chief Commissioner reviewed the evidence and concluded that the examples provided by ASMOF’s witnesses did not meet the strict test contained in the Award, although he noted (at 133) that the evidence was “an interesting example of a JMO being required to perform a lot of work without pay.”

ASMOF Industrial staff has reviewed this decision in detail and had preliminary advice from counsel. At although the delay in delivering the decision is regrettable, and to some extent it is arguable that the Chief Commissioner may not have given proper weight or balance to all of the evidence, there is no clear error of law or impermissible exercise of his discretion.

An appeal is unlikely to be successful.

Next Steps:

Is it in Members’ best interests to go through another probably lengthy appeal process with no certainty of being in a better position?

The key issue which falls from the decision is in paragraph 143 of the decision:

The case illustrates that JMO’s are being asked to do significant amounts of work when on call for which they are not paid. The Award, perhaps for historical reasons, appears to overlook this work at least in terms of remuneration. I recommend that the notifier and the respondent engage in detailed discussions about how this situation may be addressed. Claim 11 also provides an illustration of the possibility of an on-call medical officer being required to provide a remote clinical appraisal in every respect save for the fact that the patient is not located at their hospital. They would for that reason alone be denied compensation. The situation is one which warrants early attention

  • The decision clearly recognises that “JMO’s are being asked to do significant amounts of work when on call for which they are not paid.” That is unfair and unsustainable.
  • The Award, perhaps for historical reasons, appears to overlook this work at least in terms of remuneration” .
  • There is an anomaly whereby “an on-call medical officer being required to provide a remote clinical appraisal in every respect save for the fact that the patient is not located at their hospital. They would for that reason alone be denied compensation”.
  • The current Industrial Relations system does not provide for an easy or quick resolution of what is accepted as an inequitable situation.
  • Relatively junior doctors are rostered for duties outside “Normal Hours”. These doctors are required to have proper supervision for their own and patient safey.
  • These doctors are entitled to seek guidance or approval for medical decisions they are required to make.
  • If they are required to contact a more senior doctor who is Oncall, that requires that Oncall doctor to engage his/her medical expertise. That is called work.
  • It is unreasonable for employees not only to perform work for no remuneration (& for which they may have some medico-legal responsibility), but as the scope of the work also impinges on their “non-work time”, with frequent disruptions through phone calls etc there are clear fatigue management issues associated..

Meeting 20/8/20:

ASMOF organised a meeting on 20/8/20.

There was good representation of DiTs: Bernard Myers, Tom Morrison, Cathy Zhao, Hardip Chahal, Jacqueline Ho, Keiran Beattie, Paul Mousa, Suelyn Lai-Smith, Wenji Zhong and Jeffery Wang. A considerable number expressed interest in attending however were unable to participate & provided apologies and in some cases written submissions to the meeting.

Issues raised in the meeting included:

  • Medico-legal issues:- it is unclear if the TMF would indemnify a DiT who provided advice or approval remotely in circumstances which did not amount to a “remote clinical appraisal” as detailed in the Award, and as applied by Kite.
  • Off-site assessments: this is particularly the case in regional/rural/peripheral hospitals where patient management plans have to be developed & on-call Registrars are required to liaise with GPs. This also occurs in Metropolitan areas (e.g. Concord providing on call for Canterbury) and across LHD/ networks (e.g. JHH providing on-call cover for Calvary Mater)
  • The Administration of claims:- on the basis that if a doctor calls an on-call doctor, they need a review. Change the process to be approved within the Department rather than Administration/ DMS. Simplify the process, similar to the revised UROT process.
  • Documentation required to claim is not commensurate with the clinical work performed.
  • Kieran Beattie acknowledge that he had been in a privileged position at JHH & was pretty much able to dictate his terms. He came in when he considered it appropriate, claimed & was paid for most matters he considered were real assessments, but was happy to sort out some minor matters over the phone & didn’t claim. Kieran acknowledged that he had the support of his boss, & there was no threat to him getting a good report or not getting a job by claiming. He acknowledged that others may not have the same support & career progression is a genuine consideration
  • Protocol/procedure within the hospital for initiating a call to the Registrar who is rostered on call by the hospital administration/dept - it appears that anyone call them.
  • There should be a process by the hospital admin for the on call registrars to document the number of calls they receive within an on call period e.g. the Bankstown Cardiology Advanced Trainee who took 60 calls when roster on call - for a weekend - and no payment - despite him/her documenting all clinical advice on Hospital’s medical record/power chart.
  • Medico legally how are the on call registrars covered when hospitals refuse to accept forms which details the clinical advice for patients e.g what occurs if there Is a clinical incident?
  • Nuisance calls that the on call Registrar receives and how these can be appropriately monitored - again protocol of who should be responsible for initiating the call and documenting the call - hospital admin needs to initiate a process
  •  Rostered on call to cover multiple hospitals - providing clinical appraisal/management - however not their normal place of work - not remunerated for service - how are they covered from a medico legal perspective . Why cannot they be paid for the service provided.
DiTs are faced with a binary choice: Do I provide the advice necessary for patient care and to support my colleague on duty in an efficient and ethical manner and or do forgo payment for the time, inconvenience and disruption to my off-duty time because the Award provision, and the LHD administration of it, is so restrictive that I won’t be paid for this work, or do comply strictly with the narrow and restrictive Award provision and only assist when I am required to provide a remote clinical appraisal that “ticks all the boxes”?

CONSULTATION WITH MEMBERS

Following the initial meeting with some key members, ASMOF Proposes to arrange a series of LHD level meetings with members to discuss how this matter might be progressed.

ACTIONS and OPTIONS:

  • ASMOF has written to the Ministry to request a senior level meeting, as proposed by the Chief Commissioner to progress the matter.
  • The status quo: This is clearly an undesirable situation, so doing nothing is not a realistic option.
  • Appeal: The Chief Commissioner has written a carefully crafted Decision. In the Decision he has noted that the Award is deficient, but that he was required to interpret and apply the Award as it stands, not how it possibly should be. The Chief Commissioner has not made any obvious error of law, nor demonstrably exercised his discretion inappropriately. An appeal is unlikely to be successful, and the time taken to prepare & conduct an appeal will distract from progressing this important matter.
  • Award variation: Unfortunately the Industrial Relations (Public Sector Conditions of Employment) Regulation and NSW State Wages Policy make it impossible for a variation to the Award to be made. Also both HSU and the Ministry are on record as considering that the current Award provision is satisfactory.
  • Industrial Campaign: Members claiming remote on calls, documenting the number & typeof calls, and not being paid, or only responding to calls which will require an “award compliant” call may provide an approach which may lead to a new dispute, coupled with well targeted media relating to the patient safety, disruption & fatigue factors may be considered.