As a nurse, when faced with the situation of a patient alleging professional misconduct, you need to be confident that your insurance will respond. However, it's also important to know where you stand with regards to the legal costs associated with defending such an allegation.

Guild's policy automatically includes $250,000 cover for legal costs and expenses associated with a disciplinary or coronial investigation, hearing or inquiry. Not all policies offer this cover and many have considerably lower limits.

Disciplinary matters can be stressful situations, and not the time that you want to find out that you may also be out of pocket for your legal representation costs.

The following information highlights the need for Legal Fees (Inquiries & Proceedings) Cover by discussing the new regime for regulation of nurses in Victoria as an example.

The Health Professional Registration Act (the Act) commenced operation on 1 July 2007.
This new Act governs nurses, as well as chiropractors, dental care providers, medical practitioners, optometrists, osteopaths, pharmacists, physiotherapists and psychologists.

It allows for the continuation of the Nurses Board of Victoria (the Board) but transfers responsibility from the Board to the Victorian Civil Administrative Tribunal (the Tribunal) for the conduct of hearings of serious complaints regarding unprofessional conduct and professional misconduct.

An investigation council has been set up by the Board to sift complaints about:

• professional performance
• professional conduct
• capacity to practice, and
• character.

The Board must investigate a complaint unless it is judged as frivolous, vexatious, misconceived or lacking in substance.

The Board may investigate and refer for hearing, a complaint concerning a practitioner who may no longer be registered.

After an investigation is completed, the Board may arrange to have the matter settled by agreement between the practitioner and the notifier, or between the practitioner and the Board.

If the Board decides not to refer the complaint to a hearing the notifier can seek to have that decision reviewed.

If the complaint is judged to be of substance then it will be the subject of a hearing of the Professional Standards Panel (or a Health Panel in the case of a complaint of impaired capacity to practice), or referred to the Tribunal for a formal hearing. Serious complaints about a practitioner's performance, conduct or capacity will be dealt with by the Tribunal.

If a Professional Standards Panel finds that a practitioner has engaged in unprofessional conduct or professional misconduct, it may refer the matter to the Tribunal, caution the practitioner, require counselling, impose a condition on registration or require further education. In addition to these penalties, the Tribunal can also deregister a practitioner and fine a practitioner up to $50,000.

A Panel must give reasons for a determination to the practitioner within 28 days of the finding. A person whose interests are affected by a determination may apply to the Panel for the reasons for the determination.

The Act contains new definitions of unprofessional conduct and professional misconduct. Unprofessional conduct is defined as conduct or performance that is of a lesser standard than the public or the health practitioner's peers expect of a reasonably competent health practitioner. Professional misconduct is defined as a substantial or consistent failure to reach or maintain a reasonable standard of competence and diligence.

A practitioner subject to a complaint of professional misconduct:

Is not entitled to legal representation at a hearing of the Professional Standards Panel, however a legal practitioner can attend in a support capacity.

Must inform the Board of the amount of damages or other compensation he/she is ordered by a court to pay within 30 days of the Order (unless the amount is less than that fixed by the Board or the Court orders that the terms not be disclosed).

Must also notify the Board, within 30 days after the committal for trial, of a conviction or finding of guilt in respect of an indictable offence.

The Act provides for endorsement of midwives and nurse practitioners and also, for the endorsement of a nurse registered under Division 2, to administer certain medications.

It also provides for the Minister to approve Board issued codes and guidelines, as well as to appoint members to the Board.

No professional is infallible. Even with the best of care, errors will occur and complaints and claims for compensation will be made.

Guild's insurance policy covers a practitioner for legal expenses in anticipation of a Board hearing (as well as a complaint to the Health Services Commission, a civil claim and Coronial inquiry). Our lawyers will be available to assist you on the day an incident occurs and can be contacted to assist you with the preparation and reviewing of any statement or report that is prepared or requested.

Guild covers many of the other practice groups that are governed by the Act and in this way, Guild and its lawyers are ideally positioned to provide assistance should a complaint arise. It gives us the ability to pass on the lessons learnt in the process of assisting our health practitioner clients.

Guild Lawyers, on behalf of Guild Insurance, provided this educational article on the need for Legal Fees (Inquiries and Proceedings) Cover.