On 23 December 2015, our nurse/midwife: patient ratios became law in Victoria. This not only makes ratios more secure but also makes enforcement of ratios less complex.
Where can I find the legislated ratios?
Ratios are now contained in the Safe Patient Care (Nurse to Patient and Midwife to Patient Ratios) Act 2015 and the Safe Patient Care (Nurse to Patient and Midwife to Patient Ratios) Regulations 2015.
Nurse to patient ratios are contained in Division 2 of the Act, and midwife to patient ratios are in Division 3. For example, Section 15 of Part 2 sets out the ratios to apply to level 1 hospitals, and states:
The operator of a level 1 hospital must staff a general medical or surgical ward as follows—
(a) on the morning shift or the afternoon shift—
(i) one nurse for every four patients; and
(ii) one nurse in charge;
(b) on the night shift, one nurse for every eight patients.
The ‘level’ of each hospital is specified in Schedule 1 of the Act, and reflects the 2011/12 enterprise agreement requirements.
What if we are always ‘above ratios’?
The Act contains ‘transitional’ provisions. Section 47 refers to ‘pre-existing higher staffing arrangements’. If your staffing levels were above ratios and this was the subject of a formal written agreement with, for example, the ANMF, or was funded by the Health Department (as the 50% rule EFT was) then this applies as though it was the ratio, and is enforceable.
What if we are always ‘below ratios’?
Section 48 of the Act allows for “pre-existing lower staffing arrangements’ – where a health service was entitled to staff below the enterprise agreement minimum before the Act, then they can continue to do so for a maximum of 12 months from 23 December 2015. After that date the health service must apply the relevant ratio.
What do I do if the ratios are breached?
The Safe Patient Care (Nurse to Patient and Midwife to Patient Ratios) Regulations 2015 set out the process for resolving local ratio breaches. It is critical that this process be followed exactly and promptly. Regulation 11 explains the process.
- A nurse or midwife employee of the health service, or the ANMF on their behalf, must notify in writing, the operator of the hospital (through the nurse or midwife’s immediate supervisor) of an alleged breach of the ratio.
- Without prejudice to the outcome of the dispute, the health service must, as soon as practicable after being notified as above, suspend the course of conduct alleged to constitute a breach of the ratio for the duration of the resolution procedures.
- The health service must arrange a meeting within 48 hours between the nurse/midwife/ ANMF and the immediate supervisor, or a representative of the health service, to discuss the dispute.
- If the dispute is not resolved at the meeting, the health service, or the nurse/midwife/ANMF or representative must arrange another meeting within 48 hours (remembering that the breach must be suspended during this time).
All parties must genuinely attempt to resolve the dispute in a timely manner through the procedure, act cooperatively and genuinely consider resolution options.
What if it still isn’t resolved, or my employer won’t suspend the breach?
A nurse of midwife, with ANMF support, can apply to the Magistrates' Court under section 42(1) of the Act where the health service fails to comply with the resolution procedures.
What can the Magistrates’ Court do?
The court can:
- grant an interim injunction restraining the health service from engaging in or continuing the breach
- make a declaration that the health service did not comply with the ratio
- grant an injunction restraining the health service from contravening or continuing to contravene the ratio.
If the Magistrates' Court makes a declaration of non-compliance with a ratio, the court may make an order imposing a penalty of up to 60 penalty units. Penalty units are used to define fines for many offences and are set each year. At present, one penalty unit equates to $151.67.
If the court declares that a ratio has been breached, the health service must also declare this in its annual report.