US-style ‘safe harbour’ provisions have been flagged for WA nurses by the Australian Nurses Federation.
‘Safe harbour’ laws, currently in place in Texas and New Mexico, protect hospital staff from being legally pursued for any errors in the care or treatment of a patient if that hospital is understaffed or if they have been asked to perform a task which is beyond the scope of their role.
Speaking on Channel 9 News on 12 June 2023, the senior vice president of the ANF WA, Ms Loreta Murphy, said that the proposed changes had been requested in line with recommendations made during the inquest into the death of Aishwarya Aswath in 2021.
She explained that even though the inquest revealed issues with staff-to-patient ratios, support services, and significant levels of overtime, three PCH staff were referred to Ahpra for investigation following the tragedy – a further deterrent to nurses who were already leaving the industry in droves.
“Someone needs to be brave enough to protect us and we are only going to get that protection if we call safe harbour before the shift and say, ‘these are the issues, this is why it’s unsafe’,” Ms Murphy said.
“I am brave enough to stay and do this shift because the alternative is no one. But if I stay, please walk with me, and protect me from the things going wrong.”
Deputy State Coroner Sarah Linton said that the introduction of safe harbour provisions would “protect nurses from Ahpra investigation and prosecution when an adverse event occurs in the context of the nurse doing their work in circumstances where known risks in the workplace have been identified and not rectified by the employer.”
Since 2019, in New Mexico a nurse can request safe harbour if they reasonably believe that they lack “the basic knowledge, skills or abilities” needed to deliver safe care “to such an extent that accepting the assignment would expose one or more patients to an unjustifiable risk of harm.”
They are also empowered to seek safe harbour if they “question the medical reasonableness of another health care provider’s order that the nurse is required to execute.”
Texas, which was the first state to introduce the provisions in 2017, defined safe harbour as a process that “protects a nurse from employer retaliation, suspension, termination, discipline, discrimination, and licensure sanction,” and holds that unprofessional conduct also includes administrative decisions that directly impact a nurse’s ability to fulfil their duty to a patient.
In both states, a nurse must alert their supervisor of their decision to call safe harbour before they accept an assignment either verbally or in writing but must submit a written version before the end of their shift.
The provisions were developed in response to the highly litigious US system, where in 2014 the National Practitioner Data Bank reported that there were 27,920 ‘adverse actions’ taken against a workforce comprised of 2.7 million nurses – or close to a 1% chance of being pursued over allegations of malpractice.
By comparison, between 2014 and 2015 Ahpra received 1,807 notifications in relation to 236,000 registered nurses and 3,402 midwives – a 1.4% chance of being investigated that fiscal year.