SERVICE CHECK REGISTER – time for a change

17-Apr-2020


Over the last year ASMOF has raised several issues regarding the use (misuse) of the Service Check Register Policy Directive (SCR). As a result of this the Ministry of Health has drafted several changes to the Service Check Register Policy Directive.

Member feedback is important to guide our response. To assist please read the following:

  1. Union letter to MoH raising concerns about the SCR
  2. The current Service Check Register PD for NSW Health
  3. The draft Procedure
  4. The draft Policy Statement
  5. Draft Appendices

Forward any comments to allocation@asmof.org.au by Friday 24 April.

Background

The history of the inception of this Policy Directive must not be forgotten. There were one or more unfortunate appointments which were made due to proper reference checks not being made by employing agencies. The Service Check Register was developed to ensure that egregious conduct by NSW Health staff could be readily referenced during recruitment processes.

What was intended to be a reference to ensure that conduct which would imperil patients, other staff or NSW Health has been misused to the extent that staff being investigated for relatively minor matters which present little or no apparent risk are automatically placed on the Service Check Register. This has the most serious career implications for ASMOF members and is particularly prejudicial when the entry has been made, but that the allegations are found ultimately, usually after a significant time delay, to have had no or little foundation.

A major flaw with the Service Check Register is related to procedural fairness. Although the Policy Directive (as well as the Managing Complaints & Concerns about a clinician PD and the Managing Misconduct PD) requires a risk assessment to be conducted, the nature of that risk assessment is routinely withheld from the staff member concerned.

Preliminary observations from ASMOF

The draft Policy Directive addresses a number of the concerns that ASMOF has raised and it appears to be a more beneficial document than the existing policy directive.

Scope

The scope of the Service Check Register (SCR) is more limited and will focus on the highest level of risk only – applying only in cases of ‘serious misconduct’ – see proposed definition under section 1.2. Key Definitions

This means a SCR record can only be created if:

  • a Chief Executive suspects on reasonable grounds that the staff member has engaged in serious misconduct (e.g. a serious sex or violence offence, reportable conduct, professional misconduct by a registered health practitioner, serious criminal offence, or conduct that raises serious concerns about the safety of patients), and
  • a risk management decision has been made to suspend or terminate the employment of the staff member; to not use their services or renew their contract; or to vary, suspend or cancel their clinical privileges. (sections 3.1.1 and 3.1.2).

Risk Assessment

However, what is not addressed is the risk assessment process, which remains opaque (see sections 3.1.1, 3.1.4, 4.2, 5.1.1, 5.1.2).

ASMOF strongly argues that the risk assessment needs to be provided to the person who is the subject of the risk assessment and be subject to review.

  1. Further clarification is provided on evidence to be considered in local and Ministry reviews of SCR records.
  2. Timeframes have been set for advice to staff, review of records, and updates to records.
  3. Guidance is provided on regular local monitoring and Employment Screening and Review Unit audits of the SCR database.

Removing a SCR record

There appears to be no significant change from the existing PD. The sole arbiter of whether a record can be removed is either the public health organisation (PHO) or Ministry.

It specifically states at s 3.3 that “The removal of a record cannot form a part of any agreements or settlements in industrial disputes and the like”, although section 4.2 does mandate that the record must be reviewed if “a review of the investigation/ management of the serious misconduct has resulted in a change to the findings or to a decision about a response to the findings” or “A dismissal, termination or non-renewal of contract has been overturned or found to be unfair”.

Review

There is a new 20-working-day timeframe requirement for completing a local review of a SCR record (section 4.1)

There is more detail on criteria for removing SCR records, both open (investigation outcome pending) ones (section 3.3.1.) and completed (substantiated finding) ones (section 3.3.2).

This includes clarification around evidence to consider for removal of a SCR record (section 4.2.1), including:

    • References should specifically address identified risks following the misconduct
    • Current employment elsewhere in NSW Health is to be considered
    • Consider reasons for Board / Council decisions around health practitioners’ registration conditions and their relevance to employer risk management decisions

There is more detail on what a Ministry review entails (section 4.3)

There is more detail about local monitoring of SCR records (section 4.4)

New note on the quarterly audits of the Register by the Employment Screening and Review Unit of HealthShare (who manage the register) (section 4.4)

The draft PD states there is no external review mechanism to the IRC or NCAT.

S 5.2 mandates review of the SCR when considering disciplinary action. This extends the power/opportunity for a PHO to consider matters outside the matter directly being investigated, creating an unreasonable burden on an employee, given that the context of the entry on the SCR will not be obvious, & may allow investigators & decision makers to go on extended safaris in search of “evidence”.

Precisely how appropriately the “risk assessment” required in 5.1.2 in relation to recruitment will be untested. Some will obviously see an entry & cull without further ado, & there’s no appeal/ review process.

Access to the SCR

This must be authorised by the relevant Chief Executive or their delegate, who must be a senior staff member in the organisation (previously CE or delegate) (section 2.1)

Chief Executives must personally approve the creation, update or removal of a SCR record. This cannot be delegated (section 3).

There is better guidance on information to be provided to persons with a record, including:

  • There is a new requirement to provide an employee with a copy of their SCR record once created / updated within 10 business days (previously they had to ask for it) (section 2.2).
  • There is a new requirement re advice to a person whose SCR record has been reviewed but not removed: include what information / evidence would be helpful for any further review. (Section 4.1)
  • Open SCR records must be updated within 10 business days of the final findings of a misconduct investigation or management process (section 3.2).
  • There is a new requirement to advise a person of the removal of their record within 10 business days of the outcome of a review (section 3.4).

Disciplinary action

There is a new section on checking the Service Check Register when considering disciplinary action (section 5.2 – this effectively repeats what’s already in our Managing Misconduct policy).

Remember if you are ever informed that a Service Check Register record has been created for you, contact The Doctors Union immediately at allocation@asmof.org.au