Capabilities for Osteopathic Practice

Max Belcher

Overview

The core of this discussion is directed at section 6 of the Capabilities for Osteopathic Practice http://www.osteopathiccouncil.org.nz/competency-standards

The discussion is concerned with the parameters which are related to

the' Osteopathic Business' as opposed to the ' business of Osteopathy‘

The former being the domain of “the business of running an Osteopathic Practice” and the latter concerned with the “practice of Osteopathy” as a clinical modality.

This discussion by its very nature cannot deal with specifics but encompasses the general areas where there are vagaries of understanding and variances of application.

There is a general need for every Practitioner to review the business aspect of their practice and ensure that all the requirements are met.

Section 3 Purpose of the HPCA

(1) The principal purpose of this Act is to protect the health and safety of members of the public by providing for mechanisms to ensure that health practitioners are competent and fit to practise their professions.

Section 118 Functions of Authorities

(i) to set standards of clinical competence, cultural competence, and ethical conduct to be observed by health practitioners of the profession

OCNZ has adopted the Capabilities framework to ensure that wider aspects of practice are acknowledged as having an impact on patient safety.

Registrants are responsible for compliance with other areas of law such as health and safety, employment and immigration

Capabilities for Osteopathic Practice

Deconstruction of practice from the perspective of process in to 6 domains:

Clinical Analysis Person Oriented Care and Communication Osteopathic Care and Scope of Practice Primary Healthcare Responsibilities Inter-professional Relationships and

Behaviour Professional and Business

Activities

Diversity of Context

Council recognises that the osteopaths practise in a range of contexts and contractual arrangements:

Self-employed ‘associates’ in multi-practitioner osteopathic practices

Sole traders running home based clinics Salaried employees Partnerships Incorporated businesses

Domain 6 of the Capabilities: Professional and Business Activities

This presentation is intended to raise awareness amongst registrants of Domain 6 0f the Capabilities for Osteopathic Practice

It is intended to sign post registrants to information resources

Council can not offer advice on specific matters – you are advised to seek professional advice on compliance as appropriate

Domain 6 of the Capabilities: Professional and Business Activities

Acceptable standards for areas of practice covered by domain 6 will vary with context

The more complex your business arrangements the greater the compliance burden

All practitioners regardless of the practice context need to be aware of their responsibilities

Domain 6 of the Capabilities: Professional and Business Activities

Descriptor

This capability incorporates an osteopath’s actions and responsibility relating to the development of themselves and their practice. It also incorporates their actions and accountability in managing the healthcare, regulatory and business systems of practice life.

Domain 6 of the Capabilities: Professional and Business Activities

Elements

6.1. Ensures ethical conduct of self and others in provision of care and services

6.2. Provides for continuing professional learning for self and employees

6.3. Ensures care of self

6.4. Maintains an appropriate physical environment for privacy, comfort, and confidentiality

6.5. Manages all aspects of practice to comply with legal and regulatory requirements (as a sole operator or as an employer of others)

6.6. Manages risk effectively and responsibly in such a way that minimises impact on all concerned.

6.7. Maintains currency of knowledge and skills according to changes in regulatory and other ethico-legal requirements and practice environments over time

Companies Act (1993)

If you operate a registered company then you should, at the very least, have a look at this act.

If you are selling a company in the future, or run into solvency problems , then you need to be aware of your obligations.

Clearly the provisions of the Companies Act do not apply to sole traders and partnerships.

://www.legislation.govt.nz/act/public/1993/0105/latest/whole.html#DLM320423

Directors Responsibilities

The role of a director comes with great responsibility. They can be held to account for the actions of the company which is why those who are offered directorships should not take them lightly as their personal wealth and reputation are put on the line as a result.

One can only reflect on the outcome of the more prominent cases involving Directors who were nominally persons held in highest regard, being forced into accountability and subsequent reckoning through failure to discharge the duties of Directorship in a full and forthright manner.

Even though your company may be small, its turnover minuscule and its influence minor, the accountability of the Director(s) is the same as if it was a company of major significance.

https://www.iod.org.nz/FirstBoardsFirstDirectors/FirstBoards/Whatisgovernance/Directorresponsibility.aspx

Insurance

What you need, when you need it…

Commercial insurance is complex and many aspects of your business can be insured.

http://icnz.org.nz/for-consumers/commercial-insurance/

Insurance

This area of Practice is generally treated very poorly and it is only if an occurrence happens that reality hits home.

Practitioners would be wise to engage the services of an Insurance professional to talk them through the types, differences and costs of Insurance which is part of engaging in business as a Health Professional.

Failure to take into account the insurance aspect of a business is tantamount to gross negligence (see Directors responsibilities) in the case of employers, and poor judgement in the case of others.

Liability Policy Claims Triggers - there are two differences.

'Claims made' policies such as Professional Indemnity and Directors' and Officers' Liability policies operate on the basis that cover is provided when a claim is made and notified within the period of insurance regardless of when the claim originally occurred.

'Occurrence' policies, such as General Public & Products, Statutory Liability, Employment Practices Liability and Bailees' Liability, provide cover when the event that gives rise to the liability claims occurs within the current period of insurance.

General Public and Products Liability - ['Occurrence' trigger] The most basic form of Liability Insurance is Public Liability that provides legal liability

protection from damage to third party property or bodily injury. This type of cover is important for anybody who occupies or leases property in connection with their business, and/or provides a service away from their premises.

Employers' Liability - ['Claims made' trigger] Provides cover for personal injury to any employee of the insured. This includes any

obligation for which the insured may be held liable under the Injury Prevention, Rehabilitation and Compensation Act 2001, or any similar or amending legislation. Cover includes defence costs.

 

Insurance continued

Statutory Liability - ['Claims made' trigger] Provides legal defence protection and cover for fines for some breaches of Statute such

as Resource Management Act, Financial Reporting Act, Building Act. Occupational Health and Safety legislation prevents parties from insuring for OSH fines. Cover includes defence costs.

Employment Practice Liability - ['Occurrence' trigger] Provides protection for legal defence and court awarded settlements for employment law

breaches. Cover includes defence costs.

Professional Indemnity - ['Claims made' trigger] Provides protection against liability costs arising from the provision of incorrect or faulty

professional advice or design, as well as defamation. Cover includes defence costs.

Directors' and Officers' Liability - ['Claims made' trigger] Provides protection for directors and officers for wrongful acts committed within their

capacity as a director or an officer. Cover includes defence costs.

These are just some of the liability insurance covers available. Terms and Conditions will vary. Policy wordings need to be read. Seek advice from your insurance adviser

  http://www.icnz.org.nz/consumer/commercial

Employment

Are your ‘associates’ employees?

Could your principal be liable for holiday pay and sick pay?

Immigration Fraud / Work Permit Conditions

There is always an ongoing discussion about what constitutes an 'independent contractor' as opposed to an employee.

The standard repost about the method of payment for services, etc that most Practitioners trot out as being the defining issue, have no bearing on the legal aspect of the employment, which can be better defined as 'the relationship between the parties concerned'.

If things go wrong and legal recourse is engaged in then the complexity of employment really starts to become obvious, particularly if the findings go against the employer and recourse for holidays and tax repayments have to be resolved.

Contracts and agreements Related to employment is the question of contracts

or agreements.

In a different universe, in a time long ago, employment was settled by shaking hands. Today a full employment contract is the bare minimum that should be completed.

Do not short change yourself in any way by attempting to produce this document by yourself. It is a complex situation and requires legal advice for all parties. Failure to do this leaves you wide open to disasters on many fronts.

Employment agreements

Employment agreements Useful tool for developing employment

contractshttp://www.dol.govt.nz/agreementbuilder/ Good employment relationships begin with a

good recruitment process that ensures everyone has clear expectations about the role, working conditions and employment rights.

A clearly written employment agreement can help reduce the risk of misunderstandings.

Employers assistance

There are several groups that exist to provide services to employers (legal, contracts general advice etc) to assist employers to navigate the complexity of modern business requirements and regulations.

If you are an employer then you should seriously consider being a member of one of these groups. The services that are available are second to none and save you both time and money.

Employees should seek the advice from their professional association or a suitably qualified advisor

examples:

employers assistance limited http://www.employers.co.nz/

employers and manufacturers association https://www.ema.co.nz/services/advice/Pages/home.aspx

 

Employment Relations Act 2000 legal opinion  http://www.findlaw.com/12international/countri

es/nz/articles/1224.html  The primary objective of the Employment

Relations Act 2000 (the "ERA") is to build productive employment relationships. It promotes mutual trust and confidence in the employment environment. The "employment environment" encompasses all participants, not just employers and employees.

ERA Only Applies To Employees

While the ERA promotes productive employment relationships, its protections apply only to employees.

Independent contractors cannot use its personal grievance procedures.

The ERA is no different to its predecessor, the Employment Contracts Act 1991 (the "ECA"), in this respect

Employment Agreements

Good employment relationships begin with a good recruitment process that ensures everyone has clear expectations about the role, working conditions and employment rights.

A clearly written employment agreement can help reduce the risk of misunderstandings.

Every employee must have a written employment agreement. This can be either an individual agreement or a collective agreement.

From 1 July 2011, employers are required to retain a signed copy of the employment agreement or the current signed terms and conditions of employment.  The employer must retain the “intended agreement” even if the employee has not signed it. Employees are entitled to a copy on request.

There are some provisions that must be included in employment agreements by law, and there are also a number of minimum conditions that must be met regardless of whether they are included in agreements. Employment law also provides a framework for negotiating additional entitlements

Differences Between Employees And Contractors

The parties to an employment relationship are usually not concerned with how their relationship is described when they enter it. It is only when things go wrong that it becomes important.

Sometimes it can be difficult to decide whether a person is (or was) an employee or a contractor. This is partly due to the fact that anything that can be done by an employee can also be done by a contractor. It is usually up to the parties to decide how their relationship is to operate.

Various interpretations of employment

Govt : employment typeshttp://www.dol.govt.nz/infozone/myfirstjob/employees/prior/kinds-of-employment.asp  IRD take on employment types http://www.ird.govt.nz/resources/2/3/23ffd3804bbe58f380a2d0bc87554a30/ir336-apr09.pdf  Govt: individual agreementshttp://www.lawaccess.govt.nz/Chapter/how-is-an-employee/58-Employment-Agreements/5-Individual-Agreements

NZ Law general interpretation

NZ findlaw opinion:http://

findlaw.co.nz/articles/4269/am-i-an-employee-or-a-contractor.aspx

Main Indicators The following table outlines some of

the main indicators that distinguish a contract of service (employee) and a contract for services (independent contractor).

Contract of service - Employee

The employer decides what will be done, when, how, and by whom.

The employer provides tools, equipment, and material.

Payments are automatically generated and paid on a weekly, fortnightly, or monthly basis.

Employer pays for public and annual holidays, sick leave, etc.

Employer deducts PAYE. Employee carries out work personally and may

not delegate or subcontract.

Contract for services - Contractor

When, how, and by whom is decided by the contractor.

Tools, equipment, and materials are provided by the contractor.

Payment generated on presentation of account either by progressive payment or on completion of the contract.

No payment for absence – payment only on performance.

Contractor is responsible for tax, insurance, and other liabilities, but withholding tax may be deducted.

Contractor may subcontract.

Disputes

Where the Inland Revenue or courts and tribunals get involved in disputes it is they that decide the nature of the relationship.

They will apply ‘tests’ to determine the nature of the relationship.

Where they deem it to be an employment relationship the employer will then be liable for tax and or holiday entitlements

Health and Safety

The biggy that is the elephant in the room.

Failure in this area can devastate a business as the Inspectors have the power to close a premise down immediately, or make life an abject misery for all concerned.  

http://www.osh.govt.nz/services/enforcement.shtml

Health and Safety in Employment Act 1992 (HSE Act)

The object of the Health and Safety in Employment Act 1992 is to promote the prevention of harm to all people at work, and others in, or in the vicinity of, places of work.

The Act applies to all New Zealand workplaces and places duties on employers, the self-employed, employees, principals and others who are in a position to manage or control hazards.

The emphasis of the law is on the systematic management of Health and safety at work.

It requires employers and others to maintain safe working environments, and implement sound practice. It recognises that successful health and safety management is best achieved through good faith co-operation in the place of work and, in particular, through the input of those doing the work.

The Department of Labour administers and enforces the HSE Act in most workplaces

Comments

It should be noted that a paper trail and accountability feature high on the list of things that OSH is looking for.

These include: fire and disaster management procedures and policies electrical compliance certificates Air conditioning service records water filter service records accident/ incident recording policies and records building Wof disabled person provision compliance Remember that if you are a contractor working in a

building it is your responsibility to ensure that these requirements are in place.

In the event of a situation developing, both the contractor and the contracting person may both be liable

On line Presence

 

If you still aren't sure about going online, you need to have some serious discussions with knowledgeable sources. An online presence for business is a powerful marketing and communication tool, an incredible source of cost-efficiency, an environmentally friendly way to work, a sign of professionalism and pretty much a requirement today. Your customers are expecting to see your website address on your business cards and promotional materials.

advantages of going online:

Powerful, fast and efficient marketing and communication tool and medium Minimal start-up time & investment. Search engine optimized websites pay themselves

off very quickly as long as they provide patients with valuable products or services information.

The most environmentally friendly way to run a business Very inexpensive way to reach new markets and interact with them Office & transportation cost savings Unlimited possibilities for automation of your business. You can automate your order

and payment processes, patient management, your patient support tasks and more Freedom to live and work where you like Global presence 24/7 A sign of professionalism  

Electronic management in NZ

NZ GPs have the second-highest rate of electronic patient record use - second only to Denmark.

Practice management software is currently estimated to be used in 95 percent of NZ medical general practices.

In New Zealand, 90 percent of primary care physicians and 100 percent of laboratories communicate via secure health data networks every day.

82% of NZ physicians report receiving information back for almost all patient referrals to other doctors and/or specialists. This compares to 75 percent in the United Kingdom and 37 percent in the United States.

New Zealand has had a fully specified National Health Index (NHI) system for patients since 1992.

Web sites

section 6 of the Capabilities for Osteopathic Practice which can be found on the OCNZ web site.

http://www.osteopathiccouncil.org.nz/competency-standards

Companies act web sitehttp://www.legislation.govt.nz/act/public/1993/0105/latest/whole.html#DLM320423

Directors responsibilities https://www.iod.org.nz/FirstBoardsFirstDirectors/FirstBoards/Whatisgovernance/Direct

orresponsibility.aspx

Insurance http://www.icnz.org.nz/consumer/commercial.php

Employment, contracts and the like http://www.dol.govt.nz/agreementbuilder/ http://www.employers.co.nz/ https://www.ema.co.nz/services/advice/Pages/home.aspx

Web sites continued

Employment Relations Act http://www.findlaw.com/12international/countries/nz/articles/1224.html

Types of employment

Govt : employment typeshttp://www.dol.govt.nz/infozone/myfirstjob/employees/prior/kinds-of-employment.asp

  IRD take on employment types

 http://www.ird.govt.nz/resources/2/3/23ffd3804bbe58f380a2d0bc87554a30/ir336-apr09.pdf

  Govt: individual agreements

http://www.lawaccess.govt.nz/Chapter/how-is-an-employee/58-Employment-Agreements/5-Individual-Agreements

Web sites cont.

NZ findlaw opinion:http://findlaw.co.nz/articles/4269/am-i-an-employee-or-a-contractor.aspx

Health and safety

http://www.osh.govt.nz/services/enforcement.shtml