Today’s correspondent asks

Are ambulances in WA allowed to use bus lanes when responding to calls other than priority 1 (lights and sirens)? I suppose at the heart of the matter would be whether a priority 2 or 3 call with a response time target of 25 minutes and 60 minutes respectively, would be considered ‘urgent call’ under the Road Traffic Code 2000?

The relevant law is indeed found in the Road Traffic Code 2000 (WA).  Regulation 133 says:

A person shall not drive a vehicle along or into a bus lane unless —

(a) the vehicle is a public bus, an emergency vehicle or a special purpose vehicle; or

(b) the driver is permitted to do so under regulation 136.

Regulation 136 is about entering a bus lane in order to avoid an obstruction, a vehicle turning right, to exit the road etc and is not relevant to this discussion.

As with so many of the road rules the issue becomes ‘when is an ambulance an emergency vehicle?’  In WA an emergency vehicle includes ‘an ambulance, answering an urgent call or conveying any injured or sick person to any place for the provision of urgent treatment’ (r 3).

To enjoy the benefit of r 281 (the exemption of emergency vehicles from the road rules and generally r 306 in other jurisdictions) an ambulance must be responding to an ‘urgent call’ and must also be displaying ‘a blue or red flashing light or sounding an alarm’.  The requirement to display the warning lights or use the siren is not part of r 133.

My correspondent is, therefore, entirely correct, it depends ‘whether a priority 2 or 3 call with a response time target of 25 minutes and 60 minutes respectively, would be considered [an] ‘urgent call’…’

Who decides?  The first person to make that decision will be either the coordination centre that will identify the case as ‘urgent’, or the treating paramedic.  If they think it’s urgent the next person to be involved will be police – a police officer who issues the traffic infringement notice (TIN) will have to consider if he or she agrees the case was urgent (assuming that there is an officer who talks to the driver and the TIN isn’t just sent in the mail due to some form of automatic detection).    If a ticket is received (either handed to the driver by a police officer or sent in the mail) then the paramedic/driver could exercise their right to make submissions to police or the relevant authority where a review officer would have to consider whether, in his or her view, they accept the service’s, or the paramedic’s assessment, that the case was urgent.   If they reject that argument then the paramedic/driver could put the matter before a court for a magistrate to determine.  If the magistrate did not accept the argument there could be appeals, theoretically (but unlikely) all the way to the High Court!

One class of vehicles that can use a bus lane is a ‘special purpose vehicle’.   The definition of special purpose vehicle (r 3) includes ‘a vehicle duly authorised as a special purpose vehicle for the purposes of these regulations, by the CEO’.  If the CEO of the relevant department has, say, declared that an ambulance operated by St John Ambulance (WA) is a ‘special purpose vehicle’ then they could use a bus lane.

Today’s question is

… another question relating to police powers under the Mental Health Act 2014 (WA).

The Mental Health Act 2014 defines a mental illness as follows:

   3.1 A person has a mental illness if the person has a condition that:

          3.1.1 is characterised by a disturbance of thought, mood, volition, perception, orientation or memory; and

           3.1.2 significantly impairs (temporarily or permanently) the person’s judgment or behavior

As paramedics we occasionally find ourselves in situations where a patient refuses transport to hospital, but we feel they probably lack capacity to do so. In such situations (and lacking any powers under the Mental Health Act) we will request police attendance, with a view to compelling the patient to hospital.

My question is, would a traumatic head injury, which results in a ‘temporary’ significant ‘disturbance of thought’ fall within the definition of Mental Illness, and therefore enable police to compel such a person to hospital, under police powers under the Act.

My feeling is that it would, in much the same way as heavily intoxicated patient could also lack capacity under the Act, however some colleagues and some police officers seem to think otherwise.

Just wondering what your thoughts are.

The Mental Health Act 2014 (WA) was enacted (s 10) to:

… to ensure people who have a mental illness are provided the best possible treatment and care —

(i)         with the least possible restriction of their freedom; and

(ii)        with the least possible interference with their rights; and

(iii)       with respect for their dignity…

Section 11 says “A person or body performing a function under this Act [eg police] must have regard to the principles set out in the Charter of Mental Health Care Principles” (see https://ww2.health.wa.gov.au/About-us/Child-and-Adolescent-Health-Service/Child-and-Adolescent-Mental-Health-Service/About-us/Mental-Health-Act).

Section 6 of the Act says:

A person has a mental illness if the person has a condition that —

(a)        is characterised by a disturbance of thought, mood, volition, perception, orientation or memory; and

(b)       significantly impairs (temporarily or permanently) the person’s judgment or behaviour.

(Having quoted s 6, I’m not sure what my correspondent is quoting with paragraph numbers 3.1, 3.1.1 and 3.1.2 but it’s not the official version of the legislation found on the WA Legislation website maintained by the Parliamentary Counsel’s Office – https://www.legislation.wa.gov.au/legislation/statutes.nsf/law_a147019.html).

Accepting that ‘a disturbance of thought, mood, volition, perception, orientation or memory’ could be caused by a traumatic head injury then that might, prima facie, look like a mental illness but the section has to be read in context.  Section 6(4) says “A decision whether or not a person has a mental illness must be made in accordance with internationally accepted standards prescribed by the regulations for this subsection.”  The prescribed standards are (Mental Health Regulations 2015 (WA) r 4):

(a)        the International Statistical Classification of Diseases and Related Health Problems published from time to time by the World Health Organisation;

(b)         the Diagnostic and Statistical Manual of Mental Disorders published from time to time by the American Psychiatric Association.

I note that the International Statistical Classification of Diseases and Related Health Problems (ICD-10 Version 2016 (Online)) lists ‘Unspecified mental disorder due to brain damage and dysfunction and to physical disease’ under the heading ‘Mental and behavioural disorders’.  Other relevant head injuries – Concussion, Traumatic cerebral oedema, Diffuse brain injury, Focal brain injury, Epidural haemorrhage, Traumatic subdural haemorrhage, Traumatic subarachnoid haemorrhage, Intracranial injury with prolonged coma, Other intracranial injuries and Intracranial injury, unspecified – are listed under the broad heading Injury, poisoning and certain other consequences of external causes, not a mental health disorder.  Without accessing the DSM, I find it hard to believe that it would record a traumatic head injury as being a mental illness either.

On the same point I don’t think a heavily intoxicated patient is mentally ill.  I note that s 6(2)(i) provides that a person is not to be taken to be mentally ill just because ‘the person uses alcohol or other drugs’.  Even so ‘the serious or permanent physiological, biochemical or psychological effects of the use of alcohol or other drugs [may be]… regarded as an indication that a person has a mental illness’ (s 6(3)).  The long term effects of alcohol or drugs may be evidence of or give rise to a mental illness but immediate intoxication does not equate to a mental illness.

With respect to police powers, section 156 says:

(1)        A police officer may apprehend a person if the officer reasonably suspects that the person —

(a)        has a mental illness; and

(b)       because of the mental illness, needs to be apprehended to —

(i)         protect the health or safety of the person or the safety of another person; or

(ii)        prevent the person causing, or continuing to cause, serious damage to property…

(3)         A police officer —

(a)         must, as soon as practicable after apprehending a person under subsection (1), arrange for the person to be assessed by a medical practitioner or authorised mental health practitioner for the purpose of deciding whether or not to refer the person under section 26(2) or (3)(a) for an examination to be conducted by a psychiatrist…

Section 538 says:

A mental health practitioner is a person who, as one of the following, has at least 3 years’ experience in the management of people who have a mental illness —

(a)      a psychologist;

(b)         a nurse whose name is entered on Division 1 of the Register of Nurses kept under the Health Practitioner Regulation National Law (Western Australia) as a registered nurse;

(c)          an occupational therapist;

(d)         a social worker.

A person is an authorised mental health practitioner if they have been authorised by the Chief Psychiatrist under s 539.

A person has a traumatic head injury they do not need to be treated by an ‘authorised mental health practitioner’ or a psychiatrist, they presumably need to be treated by a neurologist or neurosurgeon or at least an expert in emergency medicine.  They need to go to the emergency department not a mental health service.

Other justifications for treatment

The Mental Health Act 2014 (WA) is not an Act to justify the treatment of a person who lacks capacity.    If the person lacks capacity to the power to treat is found in the common law and in the Guardianship and Administration Act 1990 (WA) s 110ZI.

Under common law, if a person is not competent then the doctrine of necessity applies (The doctrine of necessity – Explained (January 31, 2017)) and treatment that is reasonably necessary and in the patient’s best interests can be given which may include restraint and transport to hospital.

The Guardianship and Administration Act 1990 (WA) s 110ZI says that a health professional (which includes a registered paramedic; s 110ZH and Civil Liability Act 2002 (WA) s 5PA) may treat a patient where:

(a)            … [the] patient needs urgent treatment; and

(b)           the patient is unable to make reasonable judgments in respect of the treatment; and

(c)            it is not practicable for the health professional who proposes to provide the treatment to determine whether or not the patient has made an advance health directive containing a treatment decision that is inconsistent with providing the treatment; and

(d)           it is not practicable for the health professional to obtain a treatment decision in respect of the treatment from the patient’s guardian or enduring guardian or the person responsible for the patient under section 110ZD.

Discussion

The definition of mental illness in s 6 is not test of competency.   The Mental Health Act 2014 (WA) allows police detain, and then mental health professionals to treat, a person who is mentally ill even if they are competent to and do refuse consent.

Where a person is injured and not competent as a result of their injuries, then they need medical, as distinguished from mental health, services.  The justification for that treatment is not in the Mental Health Act but the common law and the Guardianship and Administration Act.  The power to make the decision on competence rests with the health professional not the police.

Where a person is injured and retains competence (or at least the capacity ‘to make reasonable judgments in respect of the treatment’) they can refuse treatment even where that is not in their best interests.  The Mental Health Act is not a tool to compel a person to undergo treatment except in the circumstances described in the Act which, in context, would not include ‘a traumatic head injury, which results in a ‘temporary’ significant ‘disturbance of thought’.

Conclusion

In context it is my view that ‘a traumatic head injury, which results in a ‘temporary’ significant ‘disturbance of thought’ [WOULD NOT] fall within the definition of Mental Illness, and therefore enable police to compel such a person to hospital, under police powers under the Act.’

This post is in response to these comments that were made in response to my earlier post Workplace first aider, paramedic or both? (June 14, 2019).

Indemnity insurance is a requirement of registration – I feel that point should be made again in this circumstance…

and

Could you please provide some clarification on PII? My understanding was that to be registered you must have PII.

PII is not ‘a requirement of registration’, it is a requirement of practice and they are not the same. The Health Practitioner Regulation National Law s 129(1) says

A registered health practitioner must not practise the health profession in which the practitioner is registered unless appropriate professional indemnity insurance arrangements are in force in relation to the practitioner’s practice of the profession.

If indemnity insurance was a required in order to obtain or renew registration, s 129 would be meaningless because a registered health practitioner would have to have insurance in order to be registered.  What follows is that you can be registered without insurance, you just can’t practice without registration.

In the context of that earlier post the discussion was about rendering first aid where a person is not employed as a paramedic, in that case in a supermarket, but is paid a first aid allowance.  Equally there is the issue of simply rendering assistance at an accident or emergency whether at a workplace or on the street.  Is that ‘practising’ the profession of paramedicine?  As noted by Walton J in Attia v Health Care Complaints Commission [2017] NSWSC 1066, (quoted in AJP article, p. 5)):

 ‘The word ‘practice’ … is not defined in the National Law. Nor is the phrase [‘the practice of the practitioner’s profession’] itself. There appeared to be common ground that the word and the phrase were attended by some ambiguity’.

The Paramedicine Board’s Professional indemnity insurance arrangements registration standard (17 May 2018)) says:

Practice means any role, whether remunerated or not, in which an individual uses their skills and knowledge as a health practitioner in their profession. For the purpose of this registration standard, practice is not restricted to the provision of direct clinical care. It also includes using professional knowledge in a direct non-clinical relationship with clients, working in management, administration, education, research, advisory, regulatory or policy development roles, and any other roles that impact on safe, effective delivery of services in the profession.

Being a ‘first aid officer’ is a ‘role’; merely stepping up at an accident would not, in my view, fit the description of ‘any role’.  Putting that issue aside, Ambulance Victoria in its response to the Victorian Ombudsman (see Ombudsman investigates Ambulance Victoria’s practice of charging for non-transport services (June 13, 2019)) said (at [52] of the Ombudsman’s report):

The definition of ‘treatment’ is critical from a clinical perspective. A paramedic’s taking of a patient’s vital signs such as blood pressure, oxygen saturation, temperature, heart rate/pulse, blood sugar, electrocardiogram (ECG), and other observations including the external physical condition or injuries are all core to the work and duty of care of paramedics. A targeted clinical history and a thorough physical examination are the cornerstones of good emergency health care.

A paramedic paid a first aid allowance or who just steps up at an accident will use his or her skills to examine the patient and form a view of whether an ambulance is required, whether urgent lifesaving first aid is required, or whether all that is required is ‘the humane provision of comfort and reassurance in a patient that doesn’t need transport to hospital and may or may not need ongoing medical care at all’ ([52], Ombudsman’s report).

In the circumstances under discussion however they cannot be expected to, nor be equipped to measure ‘blood pressure, oxygen saturation, temperature, heart rate/pulse, blood sugar, electrocardiogram (ECG)’ etc.

If however a paramedic equips him or herself with the tools associated with the practice of paramedicine, such as ‘an AED (Defibrillator), Glucometer for testing sugar levels, advanced airways such as Igels, blood pressure cuffs’ then it is much more likely that they will be seen to be practising their profession (see What equipment can an off duty paramedic carry? (June 11, 2019); Legal Services Commissioner v Walter [2011] QSC 132 and Eburn, M ‘Registered paramedics, insurance and first aid – looking for coherence in law’ (2019) 16 Australasian Journal of Paramedicine) (‘AJP article’, p. 5).  Having said that I would say that using a publicly accessible or employer provided AED is not really using advanced equipment but is, today, standard first aid procedure, but not doubt there are AEDs and advanced defibrillators used by paramedics.  And a paramedic who choses to buy an AED and if they put that with other equipment such as that listed above, then they look more and more like someone who is practicing their profession.

So there are two possibilities, the paramedic providing first aid, paid or not, is using ‘their skills and knowledge’ as a paramedic suggesting that even in the first aid scenario they are practising the profession of paramedicine. But if they are not doing that sort of assessment that would be expected when turning out with their ambulance they are not doing a ‘paramedic’s assessment’ (to again quote from AV’s response to the Victorian Ombudsman, [52]) which would suggest that they are not practising their profession.

Who, then, is to decide?  The question is ultimately not a matter for the Paramedicine Board. The Act says that practising without insurance ‘does not constitute an offence but may constitute behaviour for which health, conduct or performance action may be taken’ (s 129(4)). Health, conduct or performance action is action that ‘a National Board or an adjudication body may take in relation to a registered health practitioner or student at the end of a proceeding under Part 8’ (s 5).   If the Board somehow became aware that a paramedic administered first aid when they were not insured and assuming that the Board did not dismiss that as either ‘frivolous, vexatious, misconceived or lacking in substance’ (s 151(1)(a)) or determines that ‘the health practitioner to whom the notification relates has taken appropriate steps to remedy the matter the subject of the notification and the Board reasonably believes no further action is required in relation to the notification’ (s 151(1)(f)) then the matter has to ultimately end up before Performance And Professional Standards Panel or a responsible tribunal.  It would be that panel or tribunal that would have to determine whether the conduct in question constituted practising the profession.

Notwithstanding the definition in the Insurance Standard, I have argued in the AJP article and with reference to case law that there is more to practising the profession that just using the skills that one obtained in training for that profession.  There (at p. 5) I quote from the decision in Legal Services Commissioner v Walter [2011] QSC 132 where Daubney J said:

In Legal Services Commissioner v Bradshaw [2009] LPT 21, Fryberg J… explained:

‘One would look for evidence of continuity, of repeated acts; one would look for evidence of payment for those acts; one would look for evidence of seeking business from members of the public, or at least from other lawyers; one would look for evidence of a business system; one would look for evidence of maintaining books and records consistent with the existence of a practice; one would look for evidence of a multiplicity of clients. None of those things is in evidence before me’.

Those indicia may be present with the first aid officer in particular ‘repeated acts’ and the business system of the PCBU, but they would be absent from a person who just steps up and helps.

If the panel or tribunal did decide that the paramedic was practicing the profession, they would then have to consider whether rendering first aid in those circumstances was unsatisfactory professional conduct.  Unsatisfactory professional performance is conduct of ‘the practitioner … below the standard reasonably expected of a health practitioner of an equivalent level of training or experience’.  If other paramedics say that they, too, would have rendered assistance in those circumstances even without insurance it may be held not to constitute ‘Unsatisfactory professional performance’ and that there is no case to answer.

The conclusion is that it is not ultimately for the Paramedicine Board to decide what constitutes ‘practising the profession’ that will in the very unlikely case that it arises in a first aid context and is not dismissed out of hand, be a matter for a Panel or Tribunal. Further it will be up to a Panel or Tribunal to determine if rendering assistance without insurance is unsatisfactory practice in all the circumstances.

Conclusion

The point of this post is to confirm that PII insurance is not a requirement for registration – a paramedic doesn’t need to be covered by PII insurance to be registered.  It is a requirement for practice of the profession.

What ‘the practice of the practitioner’s profession’ means is undefined and ambiguous.  In my view a person who renders first aid as a good Samaritan, and probably as a person employed in a non-paramedic role but who is paid a first aid allowance is not practising the profession of paramedicine if they render first aid, unless they have chosen to equip themselves with advanced equipment such as ‘an AED (Defibrillator), Glucometer for testing sugar levels, advanced airways such as Igels, blood pressure cuffs’.

For paramedics concerned about what side of the line they fall ‘… the easiest solution… is … to obtain appropriate ‘top up’ insurance to cover them whenever they are not covered by an employer’s or other third party PII arrangements. Such insurance is available’ (AJP Article, p. 7).

Today’s correspondent says:

Resuscitation is typically commenced where a person has experienced a sudden and unexpected cardiac arrest. However, where a death is expected due to a diagnosed life-limiting illness, resuscitation confers no benefit. Inappropriate resuscitation is a growing concern, with Cairns (2018) believing that in situations where death is expected, “CPR shatters the peace of an expected death, destroying what might have been a time of intimacy and tranquillity.”

Ambulance services typically publish criteria for withholding or discontinuing resuscitation. The former usually involves injuries that are not compatible with life, or signs or decomposition. The Queensland Ambulance Service also includes information regarding “lawful directions to withhold or withdraw cardio-pulmonary resuscitation” in the guideline for resuscitation. This includes situations where the paramedic has sighted a valid Advance Health Directive and is satisfied that:

• The patient has impaired decision making capacity; and
• There is no reasonable prospect that the patient will regain capacity for health matters; and
• The patient is suffering from one of the following conditions:
  • a terminal illness or condition that is incurable or irreversible and, in the opinion of a doctor treating the patient, and one other doctor, the patient may reasonably be expected to die within one year;
  • a persistent vegetative state involving severe and irreversible brain damage;
  • permanently unconscious and has brain damage so severe that there is no reasonable prospect of the patient regaining consciousness; or
  • an illness or injury of such severity that there is no reasonable prospect of recovery.

https://www.ambulance.qld.gov.au/docs/clinical/cpg/CPG_Resuscitation_General%20guidelines.pdf

Given the need to make rapid decisions about whether resuscitation should be commenced, and the complexity of interpreting the Advance Health Directive, the default position is often to start. This may be due to concerns about liability for not commencing CPR, rather than judgements about the odds of successful resuscitation or a need to respect the patient’s wishes. This is of particular concern where the resuscitation appears to be futile, for example the emaciated elderly patient receiving palliative care at home, who is receiving intravascular medication via a syringe pump to manage symptoms associated with dying, but is seen by a paramedic following a 000 call made by a relative who is distressed by signs of dying.

The QAS guideline does state that decisions to withhold resuscitation must be based on good medical practice, and cites the Powers of Attorney Act 1998 and the Guardianship and Administration Act 2000 to define good medical practice as that which applies to the medical profession in Australia. However, this refers to medical practitioners, not paramedics. As such it appears that paramedics are unable to make decisions about the futility of resuscitation in a situation such as this if other criteria for withholding resuscitation have not been met. Your assessment of this would be appreciated.

Reference

Cairns, W. (2018). Avoiding futile CPR: a duty of care at the end of life. Retrieved from

https://insightplus.mja.com.au/2018/3/avoiding-futile-cpr-a-duty-of-care-at-the-end-of-life/

It should also be noted that the power to make an advance care directive under the Powers Of Attorney Act 1998 (Qld) does not detract from a person’s common law right to refuse treatment at any time for any reason, or no reason at all (see s 39).

Futile treatment

There is no duty to provide futile treatment.  Further, where the patient cannot consent to treatment, treatment may be given that is in the patient’s best interests.  Delivering futile treatment may not be in the patient’s best interests so it may be unlawful to continue with futile treatment (Airedale NHS Trust v Bland [1993] AC 789).  Lord Goff said (p. 869):

But for my part I cannot see that medical treatment is appropriate or requisite simply to prolong a patient’s life when such treatment has no therapeutic purpose of any kind, as where it is futile because the patient is unconscious and there is no prospect of any improvement in his condition.  It is reasonable also that account should be taken of the invasiveness of the treatment and of the indignity to which, as the present case shows, a person has to be subjected if his life is prolonged by artificial means, which must cause considerable distress to his family – a distress which reflects not only their own feelings but their perception of the situation of their relative who is being kept alive.   But in the end, in a case such as the present, it is the futility of the treatment which justifies its termination.  I do not consider that, in circumstances such as these, a doctor is required to initiate or continue life-prolonging treatment or care in the best interests of his patient.

In my Master of Law thesis (Eburn, M., Euthanasia and medical end-of-life decisions: the need for law reform in Australia, Unpublished Master of Laws thesis, University of Newcastle, 1998) I said (emphasis added):

In summary, based on the decisions of the House of Lords and a single judge in the New Zealand High Court, it appears that a decision to withdraw life sustaining treatment will not be criminal as where the treatment is considered by a responsible body of medical opinion to be futile.   In the common law jurisdictions it will not be criminal as treatment is only authorised by the doctrine of necessity when it is in the patient’s best interests and, if the treatment is futile it is, by definition, not advancing the patient’s best interests and may therefore be discontinued.  There is a lawful excuse for withholding such treatment even though to do so causes the death of the person concerned.

Further, a doctor is under no legal duty to provide treatment that is futile and as a person is only liable for murder or manslaughter by omission when there is a legal duty to act, withdrawing or withholding treatment that one is under no duty to provide means that there is no criminal responsibility should the person subsequently die.

In the code jurisdictions, if the broad principle enunciated in the decision of Thomas J applies, the act will not be ‘unlawful’ where it is in accord with ‘good medical practice’.   As one is only liable for an ‘unlawful killing’ the finding that the act is not unlawful, means that the practitioners are not guilty of either murder or manslaughter.

If there is a lawful justification and excuse for one’s actions, then it does not matter what the intention is.   To refer back to s.18 of the Crimes Act 1900 (NSW) a person is guilty of murder if they kill with intent to kill or reckless indifference to human life.   They are not guilty if they have a lawful justification or excuse.   If they did not intend the death of the deceased, or were not reckless (as defined in Crabbe) then there is no murder.  They would only need to rely on the defence of having a lawful justification and excuse if, without it, they would otherwise be guilty of murder, that is if the prosecution could prove that the withdrawal of treatment caused the death of the deceased and was done with intent to kill or with the realisation that death would probably follow.   It is clear that in some cases, such as Anthony Bland’s that the decision to withdraw treatment does, as a matter of fact, cause the death in question.  Lord Mustill said “… it is in my judgement perfectly obvious that the conduct will be, as it is intended to be, the cause of death …’.    It is also clear that in some cases, medical practitioners will be aware that to withhold the treatment will probably (and sometimes inevitably) lead to death (for example where the treatment in question is nutrition and hydration, or ventilation).   Notwithstanding that the practitioners realise that death is probable or intend the death to occur, they are not guilty of murder or manslaughter if they withdraw futile treatment, as they have a lawful justification or excuse for their actions.

That was about medical practitioners as these cases are only likely to arise in circumstances of medical practice but there is nothing to suggest the same principles don’t also apply to paramedics particularly now that paramedics are registered health professionals.  No-one is required to provide treatment that is futile.

The real issue is how you decide what is futile.  Where a patient, like Anthony Bland, is in a persistent vegetative state in hospital, there can be considerable time taken to consider his values, the values of his family and to take time to assess results and gain second opinions. Paramedics on the street don’t have that time and cannot make that assessment so in most cases will administer life sustaining treatment, such as high intervention CPR, in order to get the person to hospital where more detailed assessments can be made.

Palliative care

Palliative care is ‘person and family-centred care provided for a person with an active, progressive, advanced disease, who has little or no prospect of cure and who is expected to die, and for whom the primary goal is to optimise the quality of life’ (Palliative Care Australia, What is Palliative Care (undated)).   If a person is receiving palliative care then invasive treatment such as CPR and paramedic intervention would be contrary to the patient’s best wishes and the determination that has already been made that treatment to extend life is not warranted.

The QAS Guideline

The QAS Resuscitation-General guidelines provides a criteria for the rapid discontinuation of CPR.  It says (p. 210):

Cardio-pulmonary resuscitation may be discontinued or withdrawn before the expiration of 20 continuous minutes if the following is satisfied:

• The patient was observed to be unresponsive and pulseless for at least ten minutes prior to the arrival of the paramedic;
• No cardio-pulmonary resuscitation was provided during this period;
• The patient is exhibiting signs of life extinct …; and
• The patient’s cardiac rhythm is asystole.

Although the word ‘futile’ is not used the inference is that in those circumstances the treatment may be withdrawn because it is futile, it won’t achieve anything.

Under the heading ‘Good Medical Practice’ the guideline says (p. 211):

Decisions to withhold or withdraw cardiopulmonary resuscitation other life-sustaining treatments from patients that lack decision making capacity, must be consistent with standards of good medical practice for the patient, have regard for the clinical circumstances and the location of the patient at the time.

The Powers of Attorney Act 1998 and the Guardianship and Administration Act 2000 define good medical practice as that which applies to the medical profession in Australia, having regard to the recognised medical standards, practices and procedures of the profession and the recognised ethical standards of the medical profession.

That does not say that paramedics cannot make decisions, only that the decision making should be consistent with the decision making process that a doctor might.  And it is consistent with good medical practice not to administer treatment that is futile.  As noted above paramedics are not going to be in a position to determine whether treatment is futile in most cases, but where they can it’s lawful not to continue.

I would think if a patient is receiving palliative care then attempts at active resuscitation are not only futile they are also contrary to the decision making process that has already been followed by the patient, their family and their treating health professionals when the decision was made to move to palliative care.  It cannot be in the patient’s best interests and only treatment that is in the patient’s best interests can be justified.

Just because a person insists that treatment is given it is not consistent with good medical practice to administer that treatment.    A person with a viral infection may insist that their doctor prescribe antibiotics but the doctor is under no duty to prescribe treatment that in his or her opinion is futile, no matter how much the patient wants it.

Equally if a person has rung triple zero because they are ‘distressed by signs of dying’ then they are ringing for their interests not the dying patient.  Their concern, even insistence, cannot justify treatment of the dying patient where that treatment is futile.  Rather the person who rang triple zero is the patient and it is their distress that needs to be treated.  Not by subjecting a third party (the dying patient) to invasive resuscitation and transport to hospital, but perhaps by contacting the palliative care team to see if they are able to come and assist the relative and reassure the person that what is happening is both expected and (hopefully) not causing distress to the dying person.

Conclusion

Resuscitating the dying patient in order to make the distressed relative feel better is to use the dying person as a means to an end (ie we are treating them for someone else’s benefit) and not as an end in themselves.  It is not acting – to the dying person- in accordance with the ethical principles of beneficence, justice or non-malfeasance nor with respect for their autonomy.  It would be unethical, and inconsistent with good medical practice, to treat a person who is subject to palliative care in a way that is inconsistent with their treatment plan to make another person feel better.

There seems to be resurgence in questions about legal risks of doing first aid, in particular for paramedics providing care when not at work.  I confess I fail to understand the fear – there are no reported cases of people being sued for doing first aid whether they are untrained, trained, paramedics, nurses or doctors.  Further the parliaments have gone to great lengths to try and reassure ‘good Samaritan’s’ that they are not at legal risk (see https://emergencylaw.wordpress.com/civil-liability-legislation-in-each-state/).

Let me put this in some context.  Most people drive a car.  If you’re afraid to do first aid, you should be terrified of driving.  Everyone who drives makes mistakes.  Most of the time they have no consequences.  Sometimes you or someone else notices and you think ‘that was close’.   Most drivers believe they are competent and most are most of the time.   Drivers, trying to do their best and with no intention of hurting anyone, can cause horrific accidents where everything held dear – loved ones, financial security, future health etc can be lost in an instant.

Drivers face the risk of criminal penalties ranging from traffic infringement notices to imprisonment for manslaughter.   Nearly all traffic offences can be committed unintentionally and when trying to do your best.

But still we get up, get in the car, and drive off placing our lives and the lives of every other road user at risk.  Why do we do that? Because there’s social value in having a car – it’s convenient and allows us all to do things we could not otherwise do.  It improves the lives of most of us even though cars will take the lives of some of us.  How do we manage the risk?  We back ourselves and we buy insurance.  Compulsory third party insurance is, as the name suggests, compulsory so we have that to ensure that anyone injured by our negligence (and increasingly persons injured without negligence) receive assistance with costs that come with allowing people to drive cars.   And many but not all take out first party insurance to cover the losses to our own vehicle or property damage done to others.   We spread the financial risk via insurance and we drive to what we believe are our levels of competency.

The risks of driving are much higher than doing first aid – you are much more likely to injure someone and much more likely to face legal consequences.  In first aid the law is so in favour of the rescuer that the risk of being sued is as low to zero as one can imagine.  Even so the risk can be mitigated by insurance.  Registered health professionals should have Professional Indemnity Insurance so they can spread the risk.  For others household contents insurance often provides public liability cover – see for example AAMI Home Contents Insurance Product Disclosure Statement (PDS dated 01/10/13), p. 36.  But you don’t need insurance – the risk of being sued is as low to zero as one can imagine.   You probably go out in public without thinking about insurance but you may bump into someone but you don’t live in fear that everyone is looking to sue you.

And back yourself, do what you believe is required in the best interests of the person in need of care and do what you believe you are competent to do.

Conclusion

If you’re prepared to drive a car, you should not be afraid of the legal risks of rendering first aid assistance to a stranger.

 

Today’s correspondent is:

… a recent graduate from a paramedic degree and I have attained registered status from AHPRA. I have so far been unsuccessful in attaining employment with an ambulance service, so I have continued working at a supermarket where I have worked for the last several years during my university degree. During this time I have always had a first aid and CPR certificate and had been paid a ‘first aid allowance’ from my employer as I am a designated first aider in my workplace. Recently my first aid certificate and CPR has expired, normally in this circumstance my employer offers to pay for the required training to reattain the first aid certificate, in this instance my employer (who was aware I was studying and had graduated from a paramedicine degree) has asked me to provide my paramedic degree/registration as a means of continuing my status as a ‘designated first aider’. In addition to this, on the list of designated first aiders it was proposed that I would be designated as a ‘paramedic’, and these lists are displayed at each of the various workplace first aid kits.

Having done some brief reading I came across your article titled ‘professional insurance for nurses providing on site first aid’ I have become thoroughly concerned that I could land myself in trouble if I go along with the proposed idea from my employer as I have no PII insurance and very limited idea about potential legal liability to myself while being registered as a paramedic but not currently engaged in employment as a paramedic. My general feeling that this arrangement is inappropriate and I should just reattain my first aid and CPR certificate to avoid complications, but I was just interested on your thoughts about this or perhaps if you had written or could recommend some literature which may shed some light.

The Model Work Health and Safety legislation provides that a Person conducting a business or undertaking must ensure that there are persons to deliver first aid in the work place (Model Work Health and Safety Regulations r 42).  It’s no longer the case that regulations say that a first aider has to have a particular first aid certificate.  The PCBU has to do a risk assessment and have the first aid procedures, equipment and people suitable to the workplace and risk – see Model Code of Practice: First aid in the workplace (25 May 2018).  It follows that it’s not unlawful for the PCBU to say to a registered paramedic ‘I’ll pay you the first aid allowance based on your current registration as a paramedic’ without requiring the paramedic to do another first aid course or recertification.

Only a paramedic can use the title ‘paramedic’ so putting that title on the first aid lists is not problematic.

If my correspondent retains a ‘first aid and CPR certificate’ and is listed as a first aider on the first aid lists … it makes no difference at all.  My correspondent IS a registered paramedic.  What it says on the lists and what other qualifications are held in no way changes that position.

If he or she is going to provide some care to the sick or injured he or she is going to ‘skills and knowledge as a health practitioner’, it will be impossible not to.    I have argued that if a paramedic steps up to an unexpected accident and provides first aid that should not be regarded as practicing their profession (see Eburn, M ‘Registered paramedics, insurance and first aid – looking for coherence in law’ (2019) 16 Australasian Journal of Paramedicine) but that argument would be much harder to make if you are being paid to provide first aid regardless of whether that’s a professional paramedic salary or a first aid allowance.  What follows is that Professional Indemnity insurance is required (see Paramedicine Board, Professional indemnity insurance arrangements registration standard (17 May 2018)).  Relevant insurance can be provided by an employer but it must meet the requirements set out in [2] of that Standard.

As an employee my correspondent’s employer will be vicariously liable for any negligence.  That liability will meet [2](a) but whether it would be accepted that this cover extended to [2](b) and (c) would require consideration of the insurance arrangements in place.

What follows is that my correspondent could argue that

1. he or she is not, simply by being designated as a workplace first aider not practicing the profession of paramedicine; and/or
2. that the cover provided by the employer meets the requirements of the Professional Indemnity Registration Standard.

Who wants to have an argument?  The sensible alternative is to buy some PII.  It’s readily available and reasonably cheap, for example Guild Insurance in collaboration with Paramedics Australasia (of which I am a board member) offers PII for an ‘employee first responder < 20 hours per week’ for $110 a year.  For an ‘employee paramedic < 20 hours per week’ the quoted annual premium is $121.  There are other PII providers available and having PII would allow my correspondent to easily take advantage of other opportunities that may arise as he or she looks for work in the paramedic field.

Conclusion

My correspondent is a registered paramedic.  If he or she is going to be paid to provide first aid in the workplace then prima facie PII is required.  There are arguments against that proposition so one can be prepared to work on that basis and be prepared to run those arguments should the issue arise, or one could invest in some PII and all the problems go away.

 

 

A correspondent has drawn my attention to a report released by the Victorian Ombudsman investigating a complaint about Ambulance Victoria rendering an invoice for services where the person declined transport (Victorian Ombudsman, Investigation of a complaint about Ambulance Victoria (May 2019)).

This investigation arose from a single complaint. A not uncommon scenario: a man we call Simon is involved in an altercation, someone else calls an ambulance, he declines to go to hospital, and some time later receives a bill for $519. Simon was undoubtedly aggrieved by this. When we made enquiries into his complaint we identified what appeared to be a systemic issue: fees being charged for treatment without transport, potentially involving invoices being charged unfairly.

The circumstances of Simon’s case, and his complaint, were set out at [1]:

On 8th January 2018 I was at the library when I was bitten, spat on, thrown to the ground, and had my wallet and car keys stolen in the carpark. The perpetrator’s partner called an ambulance for him. When the ambulance arrived, he lay on the ground and paramedics attended him. After attending him, one of the ambulance officers walked towards me, I was being questioned by police, I said “I’m ok, I will go to hospital later.” The ambulance officer walked back to the van and came back with a clipboard. She took my pulse and said “sign this”. I said “what is it?” She said “refusal of treatment form” so I signed it. I now get an invoice from a debt collection agency for $519. I feel this process was dishonest and sneaky and not appropriate for such an organisation. My complete version can be confirmed by 6 video cameras.

I did not call an ambulance, I told them I was ok. I think this is very unfair.

The Patient Care Record ([5]):

… completed by paramedics at the scene recorded their assessment and observations of his general condition and took his history and vital signs (eg blood pressure and pulse). In terms of treatment, the PCR states ‘reassurance, wounds irrigated and cleaned.’ The PCR also notes that Simon was advised to ‘seek medical treatment’ and that he refused.

The Ombudsman decided to investigate Ambulance Victoria’s practices and reviewed 120 cases where invoices had been rendered where no ambulance transport had taken place.

An issue for the Ombudsman was whether there had been ‘treatment’ but no transport.   The Department of Health said ([51]):

…the department considers ‘treatment’ as the dispatch and arrival of an ambulance resource and includes at least the clinical assessment of a patient. Assessment is expected to include recording of observations and/or vital signs (as relevant and/or appropriate), as well as documentation of any interventions and/or other relevant information.

Cases where no treatment was required were not subject to a bill but as the Ombudsman noted ([54]):

Logically, for a paramedic to determine that no emergency care is required (with the result that the event is non-billable) initial observations or assessments would be necessary. While such observations or assessments may amount to ‘treatment’ within the meaning of the policy [POL FCS 067 Non-Transported Patient Care Records], without further clinical care, they would arguably fall short of constituting ‘definitive treatment’ under the procedure [PRO FCS 060 Non Transported Patient Care Records – Financial Administration].

The Ombudsman was also concerned about informed consent.  Ambulance Victoria (at [45], emphasis added) recognised that

… where the triple 000 call seeking an ambulance attendance was made by a third party who was unrelated to the patient … the patient would be unaware that a third party call was even made. By contrast other cases involve calls being made by the patient’s relative, friend or associate and in this sense consent for the ambulance to be called is reasonably implied.

Later, at [78], Ambulance Victoria is quoted as saying:

It is worth noting that paramedics do not engage in discussions about costs or billing with patients prior to assessment as it is not core to their clinical role and there is a risk that giving cost information would undermine their primary duty resulting in delaying treatment or a patient’s refusal of care. Paramedics as a routine ask if they can undertake a physical assessment. They do not carry out assessment where a patient is competent to refuse and does so. There is a very real risk that if a patient were required to give financial consent many assessments would not occur and serious illness or injury would go unrecognised.

AV is of the opinion that this would compromise our duty of care and lead to serious adverse events including otherwise preventable deaths.

At [56] the Ombudsman said ‘The High Court has recognised that ‘except in cases of emergency or necessity, all medical treatment is preceded by the patient’s choice to undergo it’. (And it’s pleasing to see that the reference for that proposition was my own book, Emergency Law (4th ed) as well as the High Court’s decision in Rogers v Whitaker (1992) 175 CLR 479).  Ambulance Victoria relied on a patient’s implied consent to treatment where the patient cooperates with the paramedics taking vital signs, but this consent did not involve knowledge that the Ambulance Service would charge in excess of $500 for that service.

During the course of the inquiry, Ambulance Victoria agreed it would no longer charge where the initial call is made by an ‘unknown third party’ ([73]) and the patient refuses transport.   Further Ambulance Victoria agreed not to render an invoice to each patient where it was called to a single scene but examined many potential patients (eg a house fire where each occupant of the house was assessed but no[one was transported).  Rather they would split the scheduled fee between the number of patients.

The Ombudsman thought AV should go further.  She said that AV should not render an invoice where ‘where the caller is known to the person, but the person did not know an ambulance was being called, or could not reasonably have consented to it’.  Further there should be no charge where an ambulance was called by police to respond to injuries caused by police (such as by the use of capsicum spray or force in arrest).

The Ombudsman was of the view ([80]) that it would not be ‘unreasonable for people to be informed that an assessment, including having their vital signs taken and receiving reassurance, might cost them over $500.’

Ultimately the Ombudsman’s view was (at [71]) that ‘AV’s policy and practice for charging people for Treatment without Transport can result in invoices being issued that are not fair or reasonable.’  The Ombudsman made five recommendations (p. 28). They were:

Recommendation 1

Cancel the invoice issued to Simon for Treatment without Transport on 8 January 2018 and refund any other people who can provide evidence of payment in similar circumstances over the past 12 months, on the individual’s request.

Recommendation 2

Cease charging each patient for a full Treatment without Transport fee at a multi-patient event, wherever practicable splitting the charge according to the number of patients.

Recommendation 3

Cease charging a Treatment without Transport fee where the ambulance service is activated by a third party and the patient did not know an ambulance was being called, or could not have reasonably consented to it, including when an ambulance is called by police.

Recommendation 4

Revise its process for dealing with disputed invoices to ensure:

1. staff are empowered to exercise discretion, and
2. legislation is not misquoted.

Recommendation 5

Further to section 10(c) of the Charter of Human Rights and Responsibilities Act 2006 (Vic) note that full, free and informed consent for Treatment without Transport may include conveying relevant information about potential costs, and consider ways to adequately inform patients accordingly.

Commentary

I have previously written on practices relating to ambulance charges, see

• Paying for ambulance services (October 4, 2014);
• Subtle change in the way ambulance fees are recovered in NSW (June 1, 2015);
• Paying for ambulance services in the ACT (July 16, 2018); and
• Chasing up debts for emergency ambulance services in Victoria (July 20, 2018).

It appears the Ombudsman’s report will have a significant and welcome change in this area.

My commentary relates to the attitude of Ambulance Victoria to telling people about fees and the fear that if people are told of the cost, they may decline treatment and ‘compromise our duty of care’.  That is a clear example of Ambulance Victoria preferring its interests to those of its patients.  If its afraid of compromising our ‘duty of care’ its afraid that it will be held to account, its seeking to ‘cover its arse’ rather than advance the interests of the patient.

In Rogers v Whitaker (1992) 175 CLR 479, Mason CJ along with Brennan Dawson, Toohey and McHugh JJ said (at [13]):

However, except in cases of emergency or necessity, all medical treatment is preceded by the patient’s choice to undergo it… But the choice is, in reality, meaningless unless it is made on the basis of relevant information and advice. Because the choice to be made calls for a decision by the patient on information known to the medical practitioner [or in this case, paramedic] but not to the patient, it would be illogical to hold that the amount of information to be provided by the medical practitioner [or paramedic] can be determined from the perspective of the practitioner alone… Whether a medical practitioner [or paramedic] carries out a particular form of treatment in accordance with the appropriate standard of care is a question in the resolution of which responsible professional opinion will have an influential, often a decisive, role to play; whether the patient has been given all the relevant information to choose between undergoing and not undergoing the treatment is a question of a different order. Generally speaking, it is not a question the answer to which depends upon medical [or paramedical] standards or practices. Except in those cases where there is a particular danger that the provision of all relevant information will harm an unusually nervous, disturbed or volatile patient, no special medical skill is involved in disclosing the information, including the risks attending the proposed treatment [including the risk of a bill in excess of $500]…

At [16] the judges said (emphasis added):

The law should recognize that a doctor has a duty to warn a patient of a material risk inherent in the proposed treatment; a risk is material if, in the circumstances of the particular case, a reasonable person in the patient’s position, if warned of the risk, would be likely to attach significance to it or if the medical practitioner is or should reasonably be aware that the particular patient, if warned of the risk, would be likely to attach significance to it.

Ambulance Victoria’s comment that ‘There is a very real risk that if a patient were required to give financial consent many assessments would not occur and serious illness or injury would go unrecognised’ is to recognise that the cost is a material risk, that is it something that the patient would attach significance too.  That is a reason to tell the patient, not a reason not to tell them.

Ambulance Victoria is clearly prioritising what it sees as its duty to protect patients from harm and from their own decisions (the ethical principle perhaps of beneficence) but failing to recognise the ethical principle of respecting patient autonomy.   It is not the duty of Ambulance Victoria to save everyone from their own decisions but to assist people to make decisions that reflect their values and priorities (Stuart v Kirkland Veenstra [2009] HCA 15; PBU & NJE v Mental Health Tribunal [2018] VSC 564). A person may well cooperate with a paramedic who says ‘let me just check you over’ out of respect for the paramedic (“he or she needs to do this for his or her job, I won’t make their day complicated, I’ll cooperate”) or because it will make them go away faster if there is cooperation.  That cannot be taken to be consent to receiving an bill nor is it informed consent.  The person may – and is entitled to – take a very different view if they are told ‘just let me check you over, it will cost $500’.   If Ambulance Victoria thinks charging people $500+ will cause them to make poor decisions then the answer is not to charge them, not to withhold information that they believe is material in the circumstances.

Further paramedics may record that a patient refused recommended transport even when that is not the case – see:

• Transport everyone or act as a professional? A question for paramedics (May 6, 2013); and
• Refusing treatment documentation (June 9, 2016).
• No adverse comments regarding paramedics following death of a woman in Ballarat, Victoria (April 3, 2017).

One can see how a patient record could be created that says ‘patient checked, and refused treatment’ rather than ‘patient checked and we all agreed nothing wrong and treatment not required’.  If paramedics want to record that everyone ‘refused transport’ in order not to be criticised or asked to explain what happened if it later turns out transport was warranted, and if AV doesn’t want to tell people about fees as they may refuse transport and it later turns out transport was warranted then both are putting their interest ahead of the patient’s right to make an informed choice.

No health professional should withhold information (‘[e]xcept in those cases where there is a particular danger that the provision of all relevant information will harm an unusually nervous, disturbed or volatile patient’) on the basis that if I tell the patient all relevant information then he or she will not make a decision that I think is in their own best interests, or my best interests.   If the information will affect the choice it should be given.

Coroner Wilson, sitting in Cairns, has handed down her findings from the Inquest into the death of Holly Winta Brown (12 June 2019).

The Laura Rodeo

Laura is approximately 300 kilometres north of Cairns and approximately 140 kilometres west of Cooktown ([42]). According to Google maps, it is approximately 4 hours’ drive north of Cairns.  On 26 June 2015 Ms Brown (aged 17) was in Laura with her parents, her brother and friends to attend the Laura Races and Rodeo.   The weekend was a big event. The prior weekend was the Laura Dance Festival and participants stayed in town until the weekend of the 26-27 June 2015 for a combined rodeo and horse racing weekend ([48]-[50]).  It was accepted (at [52]) ‘that approximately 2000 people attended over the course of the weekend for the 2015 year’.  The normal population of Laura was 80.

For the horse weekend, 26-27 June, there were two event organisers.  The Laura Amateur Turf Club (LATC) organised horse racing events.  The Laura Rodeo and Camp Draft Association (LRCDA) Inc organised the rodeo and camp draft events ([45] and [46]).  The committees arranged medical cover for their events ([156]) without any attempt to coordinate together to provide event medical service for the suite of horse events and with no effort to provide health services for ‘non-event related emergencies’ ([156]-[160]) such as a medical emergency in the camp ground.

Medical services were provided by two nurses from the Laura Primary Health Clinic that was operated by The Torres and Cape Hospital and Health Service (TCHHS).  For the weekend of the 26-27 June (with at least an extra 2000 people in town), ‘one additional contracted agency nurse to provide first aid at the 2015 event, and to backup the QAS’ ([57]).

Ms Brown’s death

On the evening of 26 June 2015 Holly attended a nearby campsite and socialised with her friends. Her parents, Warren and Eleanor Brown collected her at around 2:00am (27 June) and returned to the family campsite. When Holly woke that morning she told her father she was not well and that she had a sore back. Her father rubbed her back, gave her panadol and suggested she lay back down in her swag. Holly ate breakfast, vomited and went back to rest in her swag. Holly told her mother she had chest pain. When Holly’s father checked on her at approximately 8.30am, or soon after, Holly could not be roused, her breathing was shallow, and she was unresponsive.

Warren Brown called for help and commenced cardiopulmonary resuscitation (CPR). Ms Janae Ives, a nearby off-duty nurse attending the weekend event, was alerted to the scene. By coincidence, Ms Ives was an experienced clinical nurse employed as a triage emergency department nurse at the Cairns Hospital…

Ms Ives arrived at the Brown’s campsite, (she will say by 9.00am) she saw that Holly was unresponsive, and she was present when soon after her arrival, Holly went into cardiac arrest (at around 9.10am). Ms Ives took control of the scene and the CPR. She co-ordinated the emergency response and remained with Holly as events unfolded.

A triple zero call was made at 09:40 ([9]).

Efforts to resuscitate Holly continued whilst waiting for the emergency services to arrive. Nurses from the local Laura Primary Health Clinic (LPHC), who were at that time on fatigue leave after working a double shift, arrived in the clinic troop carrier (a recovery vehicle) with a ‘Thomas Pack’ and a modest amount of equipment and supplies (adrenaline; a travel automatic emergency defibrillator-AED and an oxyviva).

Holly achieved a return of spontaneous circulation (ROSC) however it was clear that she was not responding and was in a critical condition. The resuscitation efforts and interventions provided to her at the scene were insufficient to revive her…

The Queensland Ambulance Service arrived on-site at approximately 11.00am and the Careflight emergency helicopter arrived at approximately 11.15am, some two hours after Holly’s cardiac arrest. By then all attempts to revive Holly were futile.…

Holly was pronounced deceased at 11.44am by the Careflight escort doctor, Dr Dunn.

The Coroner continued ([18]-[20]):

It is now known that Holly suffered an arrhythmia as a result of undiagnosed heart scarring, possibly due to (childhood) rheumatic fever. Holly’s condition was rare.

Basic resources such as an automated external defibrillator (AED) and adrenaline were not available on site for at least 45- 50 minutes after Holly’s cardiac arrest. In the circumstances, Holly’s chances of survival were almost nil without immediate access to advanced emergency care and treatment and resources.

The health response

Nurses Harvey and Farrelly were the two nurses who worked for the health clinic. They had done two transfers to Cooktown the night before and needed to take a break. They gave evidence that given there were only two nurses in the clinic it was impossible for them to have days off as they had to respond two-up to any call out.   The Coroner said at [148]:

At the time of Holly’s emergency on Saturday morning Nurses Farrelly and Harvey were resting for the first time in almost 24 hours. They had not slept since Thursday evening.

Nurse Leighton was the agency nurse engaged to provide an extra person for the rodeo weekend.  She understood that she was to provide basic first aid and to support the Queensland Ambulance Service (QAS) on scene.  She understood she could call the Health Clinic for further support if required.   That was her understanding but when she arrived, she discovered that QAS would not be on scene.  The Coroner said ([110]-[114]):

Nurse Katherine Leighton was not properly briefed or prepared as to the nature and extent of the role and expectations required of her on 27 June 2015 or for the event as a whole.

Nurse Katherine Leighton completely exposed as the employed ‘medical person’ at the grounds on 27 June and it is troubling in the extreme that Nurse Leighton was not aware until she attended the grounds on that Saturday morning that she was the only medical person on site and that QAS were not scheduled to attend the morning event.

Further compounding Nurse Leighton’s vulnerability, despite the fact that the nurses then on fatigue leave were ‘second on call’, Nurse Leighton had no adequate onsite backup available to her whatsoever…

Upon her arrival at the scene of Holly’s emergency Nurse Leighton immediately knew that the situation was critical and she knew she had absolutely no equipment or resources to advance the care already being administered by Janae Ives and student paramedics with the assistance of bystanders.

For these reasons I find any characterisation of Nurse Leighton as being professionally inadequate to be without merit. She was not provided with any professional scaffolding whatsoever by the TCHHS such that she could adequately respond to a medical emergency, the magnitude of Holly’s.

(The student paramedics referred to was attending the event as a participant, not part of the medical response team).

The Torres and Cape Hospital and Health Service (TCHHS)

The story of the preparation (or lack of it) by TCHHS and their failure to liaise with Queensland Ambulance to ascertain when QAS would be on site for horse racing, but not for campdraft events, makes very disturbing reading.    I won’t repeat it all but an impression of the chaotic nature of the event health management can be seen in the Coroner’s review of the evidence in paragraphs [253]-[255]:

It is submitted that this confusion occurred in part due to neither Mr Fenton [Director of Nursing (TCHHS)] nor Ms Wardlaw [Executive Director (TCHHS) Nursing and Midwifery] obtaining details of the timing and nature of the events over the Laura Horse Sports Races and Rodeo weekend, or the presence or otherwise of QAS during those events and failing to ensure this was communicated to the nurses. It is submitted that this confusion was exacerbated by a change in the Director of Nursing just prior to the Horse Sports Races and Rodeo weekend and inadequate handover. Specifically, Mr Fenton went on long service leave from his position on 19 June 2015 and Vicky Jackson [Director of Nursing and Midwifery] was responsible for covering the role of DON for the week of 22 to 28 June 2015, prior to the commencement of Julie Ross as Acting DON.

In terms of Mr Fenton’s actual instructions to the nurses, the only firm evidence is the email to Ms Harvey [Nurse – Laura Primary Health Clinic] of 18 June 2015. There is no evidence that he gave clear instructions to the nurses as to the expectations he had and whether they should attend with or without the vehicle.

Ms Jackson came into the role on 22 June 2015 for an interim period of one week between 22 June 2015 and 28 June 2015. Her evidence was that she received an inadequate briefing with regards to the weekend. She stated “I had concerns about planning for the event as I could get no clear direction from the Executives regarding staff placement over the period leading up to the event. Staff seemed to have not been given a clear pathway or expectation for their roles and appeared to have limited knowledge around orientation or indeed what my role would be or for how long I would be assisting them. As the DONM covering for that week I felt that I had been provided with misleading information and an inaccurate handover regarding the upcoming organisation of the event. It appeared to me that decisions were made without full disclosure and stakeholder consultation.”

Earlier, at [209]:

There is no evidence that Ms Wardlaw [Executive Director (TCHHS) Nursing and Midwifery] turned her mind to the nature of events to be held over the weekend or the population increase and the associated risks involved. In her oral evidence Ms Wardlaw acknowledged that she was not aware of the likely population increase associated with the event and her evidence suggests she did not have an understanding of what was involved in the activities being run, admitting she did not know at the time what a camp draft was.

At [213]:

Mr Pressley [Executive General Manager – Southern Cape York] was asked during oral evidence whether he put in place any other steps to make sure the LPHCC was adequately equipped to respond to the weekend, given the influx of people and the high risk nature of the events. He stated, ‘No, not that I can recall.’

Queensland Ambulance Service

At [289]:

The QAS were engaged by event organisers for discrete events which the QAS planned for and attended. The QAS applied appropriate risk assessment tools including the QAS risk assessment calculator. The QAS have demonstrated sufficient skill and interest in refining their risk assessment tools and in my view given that no criticism is directed to the QAS it is outside the ambit of this inquest to suggest any change or modification to those tools.

The coroner’s findings

The Coroner said ([58]-[64], emphasis in original):

… I find that the Torres and Cape Hospital and Health Service had a responsibility to, and did not, adequately plan for the temporary increase in population of between 2000-3000 people during the 2015 rodeo and race event (referred to as a ‘mass event’ as attendance exceeds 1000 people). In the absence of advance assessment and planning, the Laura clinic became the first emergency responder service to a population of 2000-3000 people.

I find that in 2015 the Laura Primary Health Clinic was not sufficiently equipped, resourced or prepared to provide a first emergency responder service for unplanned medical emergencies at a mass gathering event.

I find that the emergency medical response provided to Holly Winta Brown at the 2015 Laura Rodeo and Race weekend was inadequate.

I find that the inadequate response to the medical emergency was a result of an absence of formal direction, guidance and policy establishing appropriate protocols and pathways for all stakeholders in relation to roles and responsibilities for event planning and risk assessment in the context of a mass gathering.

I find that the lack of clear policy and guidelines within the Queensland Health, the Torres and Cape Hospital and Health Service, and / or standardised procedures generally in Queensland, for mass public event planning, mitigated against co-ordinated interagency planning.

With respect to the nurses on scene, the parents of Ms Brown asked, at [304] ‘“Why were the clinic nurses so ill equipped and so ill prepared[?] We witnessed mistake after mistake.’  The Coroner answered that question.  She said ([305]-[311], emphasis in original):

I have earlier noted that the clinic nurses should not ever have been put in the position they were. They were entitled, and needed to, take a full rest break before coming back on duty. A process should have been in place for a backup nursing team to cover Nurses Harvey and Farrelly that day. They were not fit for duty. They should not ever have been expected to make critical, potentially life saving decisions, and administer life saving treatments in their fatigued state.

They were not prepared for the medical emergency when they arrived and it was necessary for return trips to the clinic to obtain equipment. Otherwise hard working, caring, rural nurses were made to look and feel incompetent. Their usual competency and professional capacities should not be measured against the events of that day.

Nurses Harvey, Farrelly and Leighton are not personally accountable for all that went wrong on that day. Nurses Harvey and Farrelly did not arrive until almost fifty minutes after Holly’s cardiac arrest. Notwithstanding their lack of preparedness and lack of equipment fit for the purpose – any response fifty minutes after a cardiac arrest was inevitably ineffectual.

In final oral submissions at Inquest Mr Brown acknowledges:

“… I don’t blame the nurses. They were thrown into a situation there, where I don’t think they could handle, especially in that short a period of time”

I agree with Mr Brown on that point.

Nurse Harvey sent an email to Vikki Jackson on 25 June (the day before the weekend event commenced) as follows:

“Have just spoken to the rodeo people and they have nil equipment for the first aid and have said we bring car and first response bag with us. If that is done we have no emergency gear here at the clinic for call outs. Please inform me what you would like put in place”

It is unacceptable that only 24 hours prior to the event, a clinic nurse was still grappling with the logistics of covering the event, and the needs of the community of Laura. Nurse Harvey should have been supported by good executive decision making within the TCHHS and supplied with additional resources as required. She essentially had to make a call between either servicing the community, or assigning meagre resources available to her (including the clinic troop carrier) to the event grounds.

The Coroner offered her ‘sincerest condolences to Holly’s parents Warren and Eleanor and to Holly’s brother William and her wider family and friends for their tragic loss’ ([337]).  She noted (at [312]-[314]

Mr and Mrs Brown concluded in their written submissions:

“We watched our beautiful Holly die in the dirt. The terror Holly felt we witnessed, waiting for advanced life support to come. Waiting for the forgotten equipment and watching Holly with her airway compromised, negates the cost of an ambulance.”

I agree and would add that the indignity of being attended to in full public view for two hours with no immediate access to anything resembling advanced life support was inhumane.

Holly may not have survived even with advanced life support in, or out, of hospital. However, in this case, no one, not the event organisers, the TCHHS, nor anyone who assisted, or witnessed the tragedy, and especially Holly’s parents can look back on Holly’s death, and know that all that could and should have been done, was.

The coroner’s recommendations

The coroner made a recommendation (at [332]):

That within six (6) months of these findings an interagency executive group be convened to consider reform for mass gathering events in Queensland and specifically to establish a standardised protocol to provide for an out of hospital emergency medical response at the annual Laura Rodeo and Race event.

There were more details but what is of most interest is that, although the first sentence talks about ‘reform for mass gathering events in Queensland’ the recommendations were directed to the Laura event with the proposed group to include representatives from Laura service clubs.  The protocol was to have regard to issues of access to the Laura ground and the impact of the Laura event on the community.  This was not or at least not clearly an all-of-Queensland recommendation.

Commentary

The inquest findings make disturbing reading.  Anyone who has had anything to do with providing first aid or event health services at a public event would be shocked by the lack of planning and failure to undertake any rudimentary risk analysis.

I am disappointed that the coroner focussed on the TCHHS.  A health service does need to plan when there is a population surge in its area of responsibility and recognise that there may be extra-ordinary demands on its services.  But surely responsibility for planning for health services at the event rests with the organisers of the event – in this case the Laura Amateur Turf Club and the Laura Rodeo and Camp Draft Association.

In my view, by focussing on the TCHHS, the coroner let the organising committee’s off very lightly.  Her comments, directed to the committees, were ([162]-[163]):

The event planning for the Laura Rodeo and Race weekend must include a risk assessment of the event as a whole and not just the discrete events run by separate organisations. It should not matter in what capacity people attend the event, all should have access to medical coverage that complies with best practice including access to the Chain of Survival.

I can discern no reason why the responsibility for attendees to access 24 hour medical assistance should not be apportioned equally between the organising committees and in accord with event planning best practice, with reference to the TCHHS and QAS for input. Both committees must play an active role in the formulation of a preparedness plan that demonstrates access to medical coverage in accord with the ‘chain of survival’.

The Turf Club arranged for QAS to attend its events. The Camp Draft Association ‘approached a private medical provider and at the same time via Facebook called for interested ‘medicos’ to cover the weekend campdraft events’ ([159]).  They looked to the Laura Clinic nurses to provide cover as ‘the LRCDA considered the cost of engaging QAS ‘was very expensive for the club …’ ([126]).

As the coroner noted ([327]):

There are a number of valuable tools available to stakeholders including a manual commissioned by the Commonwealth Government “Safe and Healthy Mass Gatherings: A Health, Medical and Safety Planning Manual for Public Events”.  That such tools exist and are easily accessible further demonstrates what appears to be, in my view, a reprehensible lack of foresight by the organising committees.

The coroner did not make any recommendation for any legal action against any person.  Both the Turf Club and the Camp Draft Association were operated by volunteer committees. Under the Work Health and Safety Act 2011 (Qld) a person conducting a business or undertaking (a PCBU) does not include a volunteer organisation (s 5(7)).  It follows that the Act does not apply to either organisation.  If it did, I would suggest that they had failed in performing fundamental duties to ensure health and safety in particular the duty to ensure adequate first aid and emergency services (Work Health and Safety Regulation 2011 (Qld) rr 42 and 43).

Notwithstanding the size, and remote location of Laura, it is hard to believe that no member of either organising committee had been to a public event and seen anyone of the many private event health service operators on duty.  In my view any reasonable person organising such an event would have realised that they needed to arrange on-site health services. They could not or at least should not, reasonably, rely on the local clinic that normally managed the health needs of 80 people.

With respect to the recommendations that the coroner did make, she reported (at [317]) that a root cause analysis commissioned by the TCHHS identified ‘four contributing factors (which I accept all contributed to the inadequate response to Holly’s medical emergency)’.  One of them was:

There is no consistent local Council requirement in Queensland for event organisers to obtain a Council permit system to hold public or special events where that event will impact on local health services. This enabled an event in the Cook Shire being held without coordinated inter-agency notification or emergency planning for the event. Consequently there was no emergency preparedness plan established.

The coroner could, for example, have recommended that the Queensland government develop consistent requirements, across Queensland, ‘for event organisers to obtain a Council permit system to hold public or special events where that event will impact on local health services’ but she did not do so.

In my view the coroner missed the opportunity to make significant recommendations to event organisers generally to take risk assessment seriously and to take on board the organisers’ responsibility to arrange for proper care of those that attend large public events.

Today we revisit the question of practice what you know or practice what the organisation you’re working for says.  In context let me be clear I’m talking about treatment that is required to save a patient’s life or to save them from permanent disability.  Not treatment that might be convenient or ideal but is not time critical.

Today’s correspondent is a paramedic who sees that

There is a varying scope of practice currently between the different sectors of Paramedicine in Australia. After recent legal cases involving the deaths of patients at festivals, it would be good to get some clarification on where paramedics stand in regards of whether they practice to their trained scope or whether they provide the standard of care that the private company scope allows even in situation where the required equipment is available. The answer to this question may be a little obvious though in the eyes of the law and recent AHPRA registration I’d like your take on where paramedics stand legally.

Let’s give this some context.  Let us assume that my correspondent is trained in, and competent to perform, intubation and does so as part of his or her duties when working with the jurisdictional ambulance service.  Today he or she is working for a private provider at an event and intubation is not within the scope of practice defined by that private provider, but, for whatever reason, an intubation kit is available.  A patient comes in with a compromised airway, intubation is indicated and will improve their chance of survival.  What do you do?

If you don’t intubate the patient dies but you can say you ‘stuck to the company’s procedures’.   Remember the story of the death of Allison Hume ([2011] FAI 51; see Legal confusion leads to unnecessary death (December 8, 2011)):

[The Incident Controller] in particular, considered that the rescue operation was “a success”. In his view he had adhered to the policies and procedures set out by Strathclyde Fire and Rescue Service. He had obtempered to the letter the instruction contained within the Memoranda from Strathclyde Fire and Rescue Service of the 14 and 27 March 2008. There had been no casualties other than the one to whom the Service was called upon to rescue.

Unfortunately this was not a successful operation: a woman died who had … survivable though life threatening injuries…

You can ‘obtemper’ (‘obey, comply with’) the company’s ‘scope of practice’ but no-one is going to think that the outcome was a success if the patient dies when they could have been saved.

If you’re afraid of liability who’s going to sue?  The family of the patient who life you save? Or the family of the patient you let die even though you had the skills, knowledge and equipment but you wanted to make sure you in no way ventured outside the protection of vicarious liability.

As for professional standards, it is ‘unprofessional conduct’ to engage in ‘conduct that is of a lesser standard than that which might reasonably be expected of the health practitioner by the public or the practitioner’s professional peers…’ (Health Practitioner Regulation National Law s 5).  How would peers see conduct by a paramedic who is at work, caring for a patient, who has the skills and equipment necessary to save a life and fails to do so?

If you can save the patient’s life, do so.  If you’re afraid to do so for fear or repercussions from your employer or because you’re afraid you may step out of the shield of vicarious liability it’s time to stop and rethink whether you believe you are competent and to ask why are you working for this company?  If you aren’t willing to back yourself, then maybe it’s time for a new profession.

Conclusion

Don’t let the patient die if you can avoid it.

For related posts see https://emergencylaw.wordpress.com/page/3/?s=volunteer+scope+of+practice

 

 

 

Today’s correspondent is

 … currently looking into joining an App called ‘Good Sam’. It’s designed to alert people within a small geographical area to a patient in Cardiac arrest. This allows rapid hands on CPR possibly prior to Ambulance response.

my question today is; What equipment is allowed to be carried by someone in a non-work capacity. Can they carry an AED (Defibrillator), Glucometer for testing sugar levels, advanced airways such as Igels, blood pressure cuffs?

I fully understand that any and all drugs are not allowed.

I am currently employed by an Ambulance service.

I have previously written about the Good Sam app- see Crowd sourcing first aid (August 12, 2014).  Given my correspondent is ‘currently employed by an Ambulance service’ I will assume that they are a registered paramedic.

The law does not define the scope of practice of health practitioners.  As professionals it is up to health practitioners to only practice within their areas of competence. When a paramedic is at work their employer verifies that they are competent to complete the work that the service defines as their scope of practice.  When on their own time it’s up to them to determine their scope of practice.

There is no regulation of the items listed, ie Defibrillators, Glucometers, advanced airways such as Igels (see Use of artificial airway by a sports volunteer (March 14, 2016)) blood pressure monitors etc.  Anyone can buy them, and anyone can use them if they know how.  The restriction, as my correspondent has noted, is on scheduled drugs. You cannot buy, possess or supply scheduled drugs without an appropriate authority that is unlikely to exist with an off-duty paramedic.

I have previously argued that for the purposes of health professional registration and compulsory insurance, a paramedic who renders first aid should not be considered to be practicing his or her profession if he or she does not then have professional indemnity insurance.  I did argue that the more equipment associated with paramedic practice that he or she has, then the more likely it is that they would be considered to be practising their profession (see Michael Eburn, ‘Registered paramedics, insurance and first aid – looking for coherence in law’ (2019) 16 Australasian Journal of Paramedicine https://doi.org/10.33151/ajp.16.663).  If one is going to carry airways, glucometers etc one would also want to carry professional indemnity insurance as required by the Paramedic registration standard – not because of a high risk of liability but because that is required by law for registered paramedics.

Conclusion

Carry whatever you want to invest in, other than scheduled drugs, if you believe you are competent and capable of using that equipment when clinically indicated.

 

 

 

Today’s correspondent asks

What are the legal considerations in having staff search for suspicious items during a bomb threat?  Are organisations at risk of breaching WHS if they knowingly put staff at risk to search for a bomb or other harmful device?

The ANZCTC [Australia-New Zealand Counter Terrorism Committee] Improvised Explosive Device [IED] Guidelines for Crowded Places (https://www.nationalsecurity.gov.au/Media-and-publications/Publications/Documents/IED-Guidelines/IED-guidelines-crowded-places.pdf)  outlines preparedness activities that include staff conducting searches using the ‘HOT principle’ [ie looking for items that are Hidden, Obviously suspicious or not Typical to its environment (p. 13)] and the response recommendations outlines considerations for various forms of evacuation.

Many organisational policies on dealing with bomb threats include initial activities for staff to conduct the ‘HOT’ search before an evac is implemented [and see ‘White Level Inspections, pp. 11-13].

I have come across several organisations recently who have decided to move away from the ‘HOT’ search instead going straight for an immediate full evacuation.  Some of the reasons come back to their requirements under WHS legislation in providing a safe workplace.  The argument is that how can they demonstrate they maintained a safe working environment when the risk increases, the real threat environment is unknown but potentially catastrophic.

There is an understanding that following the HOT principle has advantages for the organisation (quickly determining there is not device minimises disruption)  and for emergency services (it’s easier to locate a suspect device if you are familiar with the environment and saves time for emergency services) but does this open the organisation up to being liable in the event a devise is activated while staff are searching who could have otherwise been a safe distance away?

When police and emergency service agencies search for suspect devices, they use highly trained personnel with specialised equipment often sending in robots to undertake initial assessments before risking life.  Most organisations do not have the equipment to search or safety equip their staff in this threat environment, adding to the thoughts that doing so could be seen as not providing a safe workplace.  It might be appropriate to ask staff to ‘eye ball’ their work environment and notice anything out of place while they are evacuating and report this once in the assembly area but extending the risk of exposure to staff who stop to search is where both the legal and ethical questions arise.

The model Work Health and Safety Act 2011 (adopted in every jurisdiction other than Victoria and Western Australia) provides (s 19) that a person conducting a business or undertaking (the PCBU):

… must ensure, so far as is reasonably practicable, the health and safety of:

(a) workers engaged, or caused to be engaged by the person; and

(b) workers whose activities in carrying out work are influenced or directed by the person,

while the workers are at work in the business or undertaking…

Part of that obligation includes having emergency procedures in place (see model Work Health and Safety Regulations r 43).  When deciding what is ‘reasonably practicable’ a PCBU is to consider (s 18):

(a) the likelihood of the hazard or the risk concerned occurring; and

(b) the degree of harm that might result from the hazard or the risk; and

(c) what the person concerned knows, or ought reasonably to know, about:

(i) the hazard or the risk; and

(ii) ways of eliminating or minimising the risk; and

(d) the availability and suitability of ways to eliminate or minimise the risk; and

(e) after assessing the extent of the risk and the available ways of eliminating or minimising the risk, the cost associated with available ways of eliminating or minimising the risk, including whether the cost is grossly disproportionate to the risk.

The risk of there being a bomb in a workplace is very small but no doubt higher if someone rings in a bomb threat.  Evacuation carries its own risk and is more or less complex depending on the work environment.  There cannot be a simple answer – it requires a risk assessment.  The Improvised Explosive Device [IED] Guidelines for Crowded Places give clear guidance on that risk assessment including on the use of staff in ‘white inspections’.  I would think that any employer that adopted those sorts of considerations would fall well within what is required by the Work Health and Safety legislation.

Some PCBUs that run a small enterprise may choose to simply evacuate everyone. IT’s a small exercise and if they’re shut for a few hours they can cope.  Others that have to make a decision to evacuate hundreds of people and know they’ll be out of business for days if police or someone else has to search the building may well think doing a HOT inspection is worth the effort given that the chance of there being a bomb is actually quite small.  Other PCBU’s may think they are a high-risk target in which case they would have other emergency procedures and staff training in place.

My correspondent says:

When police and emergency service agencies search for suspect devices, they use highly trained personnel with specialised equipment often sending in robots to undertake initial assessments before risking life.

I question whether that’s true?  Do police too do a ‘white level’ inspection and we see the robots and bomb squad get into action when a HOT item is discovered?  And if police are going to do a white level inspection they probably need assistance from staff familiar with the workplace as only they can identify what is HOT.

At the end of the day if there is a bomb, the risk to staff is not from the workplace but from the person who put the bomb there. I cannot see a work health and safety authority looking to prosecute a workplace for having the sort of emergency procedures that are envisaged by high level guidance such as the ANZCTC [Australia-New Zealand Counter Terrorism Committee] Improvised Explosive Device [IED] Guidelines for Crowded Places but at the end of the day it’s up to each PCBU to make their own risk assessment and develop their response in light of that assessment.

Conclusion

The answer again is that what WHS law is looking for is a risk assessment and a response in accordance with that risk.   I can understand why some PCBUs would chose to simply evacuate but I don’t think that is required by WHS law.  Doing a quick white level inspection, given that is supported by high level guidance, would in many cases be a reasonable response.  Asking staff to carry a potential IED out of the building would not.

This post is a report on the decision of the UK Supreme Court in Poole Borough Council v GN [2019] UKSC 25.  As a decision of the UK Supreme Court the case is not ‘binding’ in Australia but it is likely to be persuasive.  Further the case is not about an emergency service but about a council’s duty (if any) to protect council’s vulnerable tenants from anti-social behaviour from their neighbours.  Even though the case is not about emergency services it is about the liability of public authorities in negligence.

In Australia all the state fire brigades and state emergency services, and nearly all the ambulance services are public authorities created by legislation.  The reasoning of Lord Reed (with whom Lady Hale, Lord Wilson, Lord Hodge and Lady Black agreed) will have application to those services. This blog has reported on many cases where people have attempted to sue fire brigades for negligence in response to a fire, and all have lost.  This case confirms the difficulty in such an action.

At [28] His Honour said (case references omitted):

Like private individuals, public bodies did not generally owe a duty of care to confer benefits on individuals, for example by protecting them from harm. In this context I am intentionally drawing a distinction between causing harm (making things worse) and failing to confer a benefit (not making things better), rather than the more traditional distinction between acts and omissions… As in the case of private individuals, however, a duty to protect from harm, or to confer some other benefit, might arise in particular circumstances, as for example where the public body had created the source of danger or had assumed responsibility to protect the claimant from harm…

That simple statement, in my view, has implications for the emergency services and in particular fire brigades.  There is often concern, reported to me, that members of the services fear that they or their service will be liable if harm comes to someone from the hazard they are established to respond to (fires for fire brigades, floods and storms for the SES).   The common law in both the UK and Australia does not say however that there is a duty on the emergency services to ensure that no harm comes to people.

As fire brigades do not start most fires, they are not under a duty to ensure that no-one is harmed by fire.  Further fire brigades to not assume a ‘responsibility to protect the claimant from harm…’  The whole message from fire brigades particularly rural or bush fire brigades is that you cannot depend upon them to save you from fire.  A fire brigade when it responds to a fire is actually trying to stop the fire from spreading, not to protect those whose property is already on fire.  Further fire brigades don’t ‘protect a claimant from harm’ from fire.  If they did it would be fire brigades that would be responsible for all the hazard reduction activities, the installation of smoke alarms etc.  Fire brigades are there for the benefit of the community writ large, not even those individuals facing imminent loss from fire (Capital and Counties v Hampshire Council [1997] QB 2004; Warragamba Winery v NSW[2012] NSWSC 701; Electro Optics and West v NSW [2012] ACTSC 184; Myer Stores v State Fire Commissioner (Tasmania) [2012] TASSC 54; Hamcor Pty Ltd v State of Qld [2014] QSC 224; Stuart v Kirkland-Veenstra [2009] HCA 15).

Sometimes fire brigades do create a danger – such as when starting a hazard reduction burn (as opposed to a back burn that is itself a fire fighting operation) or when exercising other functions.   In Poole Borough Council v GNLord Reed said (at [27]):

… as Lord Reid explained in Dorset Yacht Co Ltd v Home Office … a person performing a statutory duty was liable for an act which, but for the statute, would be actionable at common law, if he performed the act carelessly so as to cause needless damage. His liability arose because the defence which the statute provided extended only to the careful performance of the act. The rationale, Lord Reid explained, was that:

Parliament deems it to be in the public interest that things otherwise unjustifiable should be done, and that those who do such things with due care should be immune from liability to persons who may suffer thereby. But Parliament cannot reasonably be supposed to have licensed those who do such things to act negligently in disregard of the interests of others so as to cause them needless damage.

An example may be the power of a fire brigade to knock down a wall or building made dangerous by fire. In Vaughan v Webb (1902) 2 SR (NSW) 293 the defendant firefighter negligently, but in good faith, pulled down a wall causing damage to another property. The court held that ‘good faith’ was no a defence to negligence so that although the defendant had the power to knock down the wall he was expected do so with reasonable care so as to avoid unnecessary damage to neighbouring properties.  Today, and in response to that case, all Australian fire brigade legislation provides that the members and brigades are not liable for acts done ‘in good faith’.

Lord Reed’s discussion continued:

… the position was not the same where Parliament conferred a discretion. If the discretion was exercised lawfully, then the act in question would be authorised by Parliament:

But there must come a stage when the discretion is exercised so carelessly or unreasonably that there has been no real exercise of the discretion which Parliament has conferred. The person purporting to exercise his discretion has acted in abuse or excess of his power. Parliament cannot be supposed to have granted immunity to persons who do.

This proposition is also reflected in Australian law.  Fire brigades are not directed how to fight a fire.  The officer in charge is given broad discretion to do all manner of things but the legislation does not direct him or her on how to fight the fire or set priorities. That position has been enshrined in legislation in New South Wales.  In that state liability when exercising a special statutory power, such as those given to Fire Brigades, can only be established where ‘the act or omission was in the circumstances so unreasonable that no authority having the special statutory power in question could properly consider the act or omission to be a reasonable exercise of, or failure to exercise, its power’ (Civil Liability Act 2002 (NSW) s 43A).

I would suggest that similar reasoning would also apply to a State Emergency Service. In that context there has been questions about the obligation, and legal duty, of councils or an SES to close a road that is affected by flooding (and see the discussion in the Inquest into the deaths of Stephanie Jane King, Ella-Jane Kabealo and Jacob Matthew Kabealo reported in the post Two coroners inquests that may be of interest (May 21, 2019)).    Relevantly in this case it was said (at [32]):

 … the importance of the distinction between causing harm and failing to protect from harm, in the in the context of a highway authority’s alleged duty of care to provide warning signs on the road:

It is not sufficient that it might reasonably have foreseen that in the absence of such warnings, some road users might injure themselves or others. Reasonable foreseeability of physical injury is the standard criterion for determining the duty of care owed by people who undertake an activity which carries a risk of injury to others. But it is insufficient to justify the imposition of liability upon someone who simply does nothing: who neither creates the risk nor undertakes to do anything to avert it.

Lord Hoffman also emphasised the difficulty of finding that a statutory duty or power generated a common law duty of care, observing at para 32 that it was “difficult to imagine a case in which a common law duty can be founded simply upon the failure (however irrational) to provide some benefit which a public authority has power (or a public duty) to provide.”

In short the reasoning of this case is consistent with the proposition that an agency like a state emergency service, fire brigade or a police force does not owe a duty of care to an individual to protect that individual from harm where the brigade is not the cause of that harm – “public authorities do not owe a duty of care at common law merely because they have statutory powers or duties, even if, by exercising their statutory functions, they could prevent a person from suffering harm” ([65]).

Ambulance services are somewhat different because they do seek to provide care to individuals. Paramedics treating a person are treating that person for that person’s benefit.  Further people have alternatives and may rely on an ambulance service to attend when they are advised that an ambulance is indeed on its way.  The close relationship between a paramedic and patient will under normal principles of common law give rise to a duty of care and in those circumstances the paramedic is not usually exercising statutory powers.  Ambulance services do owe a duty of care to the individuals they are called to assist – Kent v Griffiths [2001] QB 36.

Conclusion

As noted, the decision in Poole Borough Council v GN [2019] UKSC 25 was neither Australian nor about the emergency services.  The relevance of that decision therefore requires an appreciation of the persuasive effect of superior international, and in particular UK decisions on Australian law and an appreciation of the ability to argue by analogy; to take the general principles of law and apply them in an analogous situation.

Doing that it is my view that this case is a useful review of the law of negligence as it applies to statutory authorities. It confirms that mere foresight that someone may suffer harm, coupled with statutory powers that may, if used, help prevent that harm does not give rise to a legal duty to prevent harm.  The ultimate duty is not to make the situation worse, not to make it better.  That position is different where the agency creates the risk of harm, but generally fire brigades do not light fires (but can be liable for escaped hazard reduction burns), and the SES never starts the storm or flood.

That result is, in my view, consistent with Australian law.

Today’s correspondent is a volunteer with NSW RFS who has

… been looking into purchasing a ‘wildfire’ helmet. I have been stopped by my Brigade Captain on grounds that if I have an accident whilst wearing a helmet not issued by the RFS it may stop my compo. My question is, if the RFS know that helmets have an expiry date of 3 years from manufacture or if it is recorded 3 years from issue who is responsible when RFS members wear helmets that have expire on the fire ground. It has been 3 years since the new style of helmet was introduced so all fire fighter should have the new style of helmet. And there are plenty out there that don’t. Further to my question will wearing a helmet that is past its use by date will this affect compensation if an accident occurs.

The simple answer is ‘no’; but we can add more detail.

Workers compensation

Compensation for rural firefighters is governed by the Workers Compensation (Bush Fire, Emergency and Rescue Services) Act 1987 (NSW), the Workers Compensation Act 1987 (NSW) and the Workplace Injury Management and Workers Compensation Act 1998 (NSW).  The essence of the Workers Compensation (Bush Fire, Emergency and Rescue Services) Act is to bring rural fire service volunteers (and others) into the workers compensation scheme even though they are volunteers, not employees.   It is the other two Acts that govern how compensation is paid and determined.

Workers compensation is a no-fault scheme.  It doesn’t require an injured person to prove fault by someone else and equally, as it is no fault, there is no discount for the worker’s contribution to their own injuries.    A firefighter is entitled to compensation if he or she is injured ‘in the course of fighting a bush fire…’ (Workers Compensation (Bush Fire, Emergency and Rescue Services) Act 1987 (NSW) s 7(1)).   The question is not ‘what sort of helmet was the firefighter wearing?’

The first thing then is to ask what injury happened and why?  A firefighter can be injured in many ways where the helmet they are wearing is irrelevant.  If they are wearing a non-standard helmet and break their leg, the issue must be irrelevant.  The issue could only arise if they had a head injury and the issue of the helmet might arise, but that won’t affect an entitlement to compensation. Compensation is no fault.

Work Health and Safety Law

The issue may arise under Work Health and Safety law.   What helmet to wear is first and foremost a matter for the RFS. The RFS has the primary duty to ensure the health and safety of its workforce, including volunteers (Work Health and Safety Act 2011 (NSW) s 19).  To do that they need to conduct a risk assessment (s 18) and in doing that make a choice for PPE that best responds to the risk (Work Health and Safety Regulation 2017 (NSW) r 44(3).

Under the Work Health and Safety Act 2011 (NSW) a worker (which includes a volunteer (s 7) must (ss 28 and 34):

(a) take reasonable care for his or her own health and safety, and

(b) take reasonable care that his or her acts or omissions do not adversely affect the health and safety of other persons, and

(c) comply, so far as the worker is reasonably able, with any reasonable instruction that is given by the person conducting the business or undertaking to allow the person to comply with this Act, and

(d) co-operate with any reasonable policy or procedure of the person conducting the business or undertaking relating to health or safety at the workplace that has been notified to workers.

Part of that obligation includes (r 46):

The worker must, so far as the worker is reasonably able, use or wear the equipment in accordance with any information, training or reasonable instruction by the person conducting the business or undertaking.

The problem for the RFS is that they cannot assess every piece of equipment on the market so they make an assessment and choice of what equipment they will supply and they issue that to members along with a direction not to use other equipment as they cannot know whether the equipment an individual wants to buy actually addresses the risks assessed by the RFS.   A member may think their metal lined cap is equivalent to an RFS helmet but that does not make it so. Clearly in order to protect itself the RFS has to issue Personal Protective Equipment (PPE) and direct members not to use non-approved PPE.  Failure to wear approved PPE may be an offence under s 28(c).

On the other hand, the RFS will direct that people wear helmets and wearing a non-RFS helmet is better than wearing nothing so wearing a non-approved helmet may be a firefighter taking ‘reasonable care for his or her own health and safety’.

What it will really come down to is wearing the non-approved helmet does expose the firefighter to risk.  Wearing a genuinely effective helmet does not expose the firefighter to any greater risk than wearing an RFS issued helmet so it would be hard to see how that exposes the firefighter to a risk to his or her health or safety.  Wearing a tin lined cap on the other hand, would mean the firefighter is exposed to risk regardless of what the firefighter believes.

As for the claim that ‘helmets have an expiry date of 3 years from manufacture’ and the question of ‘who is responsible when RFS members wear helmets that have expire[d] on the fire ground [and] …will wearing a helmet that is past its use by date will this affect compensation if an accident occurs’?  The answer is that the RFS is responsible for the issue of that PPE and no, wearing a helmet that is past its use by date will not affect compensation if an accident occurs.  Again, it’s a question of risk assessment. Why does the manufacturer say there’s a three-year limit?  What risk are they measuring?  The RFS is entitled to do a risk assessment and consider what is the likelihood that the helmet will fail to provide adequate protection, ‘the availability and suitability of ways to eliminate or minimise the risk’ including ‘the cost associated with available ways of eliminating or minimising the risk, including whether the cost is grossly disproportionate to the risk’ (s 18).

Conclusion

Threats that wearing non-approved PPE will affect compensation are misguided where what we are talking about is no-fault workers compensation.

The true legal issues arise under Work Health and Safety Law.  There the real issue is whether the equipment used increases the risk to workers.

For related posts, see:

• Non approved PPE, the NSW RFS & Work Health and Safety (November 22, 2014); and
• ‘Altering’ or ‘damaging’ NSW RFS PPE (October 9, 2018).

Back in October 2013 Mr Walker attended the surgery of Dr Tucker.  Mr Walker complained of:

… back pain and paraesthesia of both legs. Dr Tucker immediately referred him for a CT scan. That scan revealed that Mr Walker had a soft tissue density with possible appearances of a soft tissue oedema or a nerve sheath tumour in the area of his thoracic spine. Dr Tucker wrote a referral for the Princess Alexandra Hospital (“PA Hospital”) emergency department… Mr Walker was driven by his partner back to their home and subsequently by a friend to the emergency department of the Ipswich Hospital. He subsequently was transferred by ambulance to the PA hospital, had an MRI and was operated on later that evening. It is alleged that he was left with spinal injuries (Walker v Tucker [2019] QSC 141, [1]).

Mr Walker commenced proceedings against his regular GP and the Ipswich Hospital ‘alleging that he had suffered personal injuries arising out of his spinal injuries as a result of alleged negligence by each of them’.   As the case progressed the solicitors for Mr Walker obtained reports from the practitioners involved in Mr Walker’s care, and from experts.   The original view of the experts was that Dr Tucker’s care had been in accordance with what could be expected from a reasonable medical practitioner and he was advised that there was no plan to join him as a defendant.

On 19 July 2017 one of the experts, ‘changed his opinion and stated he considered that Dr Tucker had not acted to the standard of a reasonable and prudent general practitioner in not calling an ambulance for Mr Walker to transport him to the PA Hospital. Mr Walker was informed of Dr Lynch’s changed opinion on 3 August 2017. Proceedings were filed against Dr Tucker by Mr Walker on 18 July 2018’ [2].

The report of 19 July 2017 said ([19]):

“It is my opinion that, because of the significance of the diagnosis and the duration of the symptoms in the specific circumstances of Mr Walker with his shock and inability to comprehend the potential seriousness of the condition and the need for attendance at a specific Accident and Emergency Department, Dr Tucker ought to have advised, recommended and ordered an ambulance to take Mr Walker directly to the Princess Alexandra Hospital.  This would have prevented a man with an abnormal spine, on a CT scan, from walking out the front door of the medical clinic to then be driven around the suburbs, in private transport, whilst he attempted to process and come to grips with and understand those parts of the consultation that he heard and remembered.  Calling an ambulance is what a reasonable and prudent general practitioner would have done and Dr Tucker, had he acted to the standard of a reasonable and prudent general practitioner acting to the standard of his peers at the time the service was provided, ought to have done…

My opinion has changed because I have now been provided with different facts and different assumptions.

Specifically the access to ambulance transport in Queensland and the information as to how Dr Tucker provided the information to the patient and Mr Walker’s subsequent travels around the community, in a shocked state, whilst attempting to process the information that he, alone, had been provided.

It is further my opinion that Dr Tucker ought to have involved Mr Walker’s partner in the discussion of such a serious condition to ensure that Mr Walker comprehended the complexity of his problem and its need for treatment “as an urgency”.

It was negligent of Dr Tucker to allow Mr Walker to travel around the community to various sites when the easy and appropriate access to free emergency ambulance transport was available.  Dr Tucker simply had to make a telephone call to order an ambulance.  This would have ensured Mr Walker was immediately and urgently transported to the appropriate environment of the Princess Alexandra Accident and Emergency Department with a preceding telephone call by Dr Tucker.

The problem for Mr Walker was that this claim against Dr Tucker was ‘out of time’, that is the limitation period had expired in October 2016.  To be allowed to continue with his claim Mr Walker needed the permission of the court.   The actual legal principles upon which that decision was made is not of particular relevance to this blog.  Suffice to say that Her Honour Justice Brown accepted that the change of opinion expressed by the expert in July 2017 represented a new ‘material fact’ and that Mr Walker could not have been expected to commence an action without knowledge of that fact.   That, along with some other issues to be discussed below, meant the court allowed the extension of time and Mr Walker had a further 12 months from July 2017 to commence that action.   He did file within that 12-month period (just) and the claim against Dr Tucker was allowed to continue.

The court in this case was only concerned with whether or not the claim should be allowed to proceed to trial, not the merits of the claim.  As the judge said (at 75]) ‘There is no doubt that Mr Walker may have considerable challenges in convincing a Court to adopt the changed opinion of [the expert]…’  There would also be difficult issues of causation in effect proving that had Mr Walker been taken directly to the PA hospital by ambulance his surgery would have occurred sooner and avoided the long-term disability that he now has.   Brown J said (at [78]-[79])

There is evidence which, if uncontradicted, could establish a prima facie case of causation… The submission that there was no evidence as to causation in relation to Mr Walker’s case is incorrect.

That does not mean that the evidence, at trial, won’t be contradicted or otherwise rejected but that was not the question for Her Honour.

The plaintiff having established the grounds that would allow an extension of time, Her Honour then had to consider whether she should allow the extension. She said (at [94]-[96], [99] and [101]):

In the present case, Mr Walker had made a deliberate decision not to commence proceedings against Dr Tucker based on the medical opinions received at the time and had communicated the fact that no such claim would be made in 2015.

I accept Dr Tucker has suffered some prejudice arising from the fact that Dr Tucker was given an assurance that he would not be the subject of a claim and, in reliance on that assurance, provided a witness statement that he had previously provided to the solicitors for the Ipswich Hospital without seeking advice is of some relevance, as it shows that Dr Tucker took steps potentially to his detriment, by not seeking advice prior to doing so.

Having given the matter careful consideration, I do not, however, find it has caused significant prejudice to Dr Tucker precluding a fair trial…

The matters which indicate that Dr Tucker can have a fair trial are the fact that the medical records are still in existence and that he has been able to obtain some expert reports, the authors of which did not identify any difficulty with providing an opinion due to incomplete records.  His recollection of events on the day of the consultation with Mr Walker, although no doubt affected by delay, is still reasonable and not significantly impaired by the passing of time.  I do not consider any prejudice suffered from the fact that the impressions of Mr Walker’s presentation are no longer as clear as they were is significant.  He was also aware to some extent of the proceedings which are on foot between Mr Walker and Dr Mogg and the Ipswich Hospital and had recorded some of those events in a preliminary statement to the Ipswich Hospital…

Dr Tucker has provided evidence showing he has a strong defence to the proposed claim against him by Mr Walker. That supports the fact a fair trial can be conducted. The evidence provided on behalf of Mr Walker, while it has weaknesses as identified above, is not such as to satisfy me that a fair trial cannot be conducted and that the Court’s discretion should be exercised against granting the extension. The fact that a case as presented in an application such as the present is a weak one has some relevance to the exercise of the discretion, but it must be borne in mind that the authorities with respect to s 31 of the Act do not require that a plaintiff present all evidence that they would present at trial or even present the evidence in an admissible form.  I am satisfied that the applicant has shown that there can be a fair trial.

Discussion

In some ways this case is of little significance because it has not yet determined whether there was negligence in not calling an ambulance or whether or not calling an ambulance would have made any difference to the outcome for Mr Walker.

I raise this here because it is of interest that there is a claim for negligence in failing to call an ambulance.

As a segue from that it is I think important for people to note that there can be such allegations.  This is relevant in the first aid context where people may not want an ambulance called because of the cost; see for example:

• Paying for ambulance services (October 4, 2014);
• Subtle change in the way ambulance fees are recovered in NSW (June 1, 2015);
• Paying for ambulance services in the ACT (July 16, 2018); and
• Chasing up debts for emergency ambulance services in Victoria (July 20, 2018).

This may be less of an issue in Queensland and Tasmania where ambulance services are provided free to residents (Ambulance Service Act 1991 (Qld) s 53B; Ambulance Service Act 1982 (Tas) s 36) but it may be relevant for inter-state and international visitors.

In a first-aid context people claim to be reluctant to call an ambulance in the face of the patient’s objection as they cannot treat ‘without consent’.  That principle says that you cannot touch a person without their consent, it does not say you cannot call triple zero without their consent.  If a first aider believes a person really needs an ambulance, they should call an ambulance.  If the person wants to refuse ambulance treatment or transport he or she can take that up with the paramedics, but having two paramedics on scene confirming that they too think the person needs ambulance services may well go some way to persuading the patient that they do need care that they don’t think, or want to believe, that they need.

Universities are like micro-cities with a diverse population of students, staff and visitors from around the block and around the world.  Students, particularly international students, may be very reluctant to accept an offer of an ambulance where they aren’t sure whether their insurance will cover it or the processes that are involved in the Australian health care system and where English may not be their first language.  When I worked at a different university to the one I now work at, we did not want our staff, who were paid a first aid allowance, to feel constrained in their care of people who were sick or injured.  Equally we could not allow a person who was unwell to just remain in say the library, because they did not want to seek help.  The (then) OHS committee, of which I was chair, advocated and had approved a policy where the University agreed to meet any uninsured ambulance liability where a university first aid officer made the decision to call an ambulance for anyone on campus.

Even without such a policy, first aiders should call an ambulance where they think the patient’s clinical condition warrants that care.   The first aider has a duty to take reasonable care in the care of their patient.  That cannot extend to treating a person who refuses consent but as noted that does not mean that the first aider cannot call an ambulance if he or she thinks it is required.

Conclusion

The outcome of this case remains to be seen.  It may settle, it may go onto a hearing.  If it does whether Dr Tucker was found to have been negligent will depend on the facts that have not yet been tested in a court room.   If and when there is a judgement, I will expect to report it here.

In the meantime, there is a salutary lesson that at least in some circumstances there may be a duty to call an ambulance.  Anyone providing care for another person should call an ambulance if they honestly believe the patient’s condition is urgent and requires ambulance assistance.

 

 

 

 

Today’s question poses the scenario of:

A Security guard in a shopping centre is usually the appointed First Aider [as part of the Emergency Control Organisation [AS 3745-2010], dealing with the public. The security guard must hold a valid first aid certificate and normally this is the cheapest/ easiest course available. WHAT IF, when confronted with a life threatening first aid scenario such as a young child suffering from a possible anaphylactic reaction to a known trigger age and displaying symptoms, the security guard does not know what to do. I mean if they are qualified BUT NOT competent. Are they or the security firm liable as surely they are not covered under the good Samaritan act as this is part of their scope of practice and they are the nominated first aid officer.

No the security guard would not be a ‘good Samaritan’.  He or she is at work and if his her duties including providing first aid they are not acting without expectation of fee or reward.  The good Samaritan legislation in each jurisdiction would be irrelevant.

Could they be liable? The security firm could be vicariously liable for the negligence of its employee but there will only be liability if it can be shown that in the circumstances some other treatment would have made a difference to the outcome. That begs the question of what was the outcome?  If the patient recovers without long term injury then there is no damage.  If they do have long term disability what could the security guard have done?  A first aid certificate does not necessarily authorise someone to carry an epipen (a schedule 3 drug).   If there was no epipen available then there’s nothing the guard could have done even if he or she had wanted to do something.

The answer is we can’t know.  It all depends on the facts.

For a related answer see First aid by security guards (May 26, 2014).

Today’s question is about mandatory reporting and health impairments.   A paramedic

… recently came across a situation at a CPD day that was being facilitated by my employer… One of the topics discussed were the new mandatory requirements of paramedics. A scenario was put to us as follows (I’m paraphrasing): “you are attending to a patient, suffering from a suspected drug overdose. During your attendance to the patient, you are made aware that the patient is at university studying paramedicine (and therefore a student paramedic who is required to be registered). Are you obliged to report the student paramedic to AHPRA?”

This scenario led to some quite spirited discussion and debate. Ultimately, the facilitator of the session read out a statement that essentially suggested (by my interpretation) that in this case we should report the student to AHPRA, despite the fact that this would require breaching of patient confidentiality. I am wondering where we would stand legally if we did this? Wouldn’t we be breaking the law to report the student paramedic to AHPRA as they are our patient and we are obliged under relevant legislation to maintain patient confidentiality?

The mandatory reporting requirements are set out in the Health Practitioner Regulation National Law.  I’m not sure what jurisdiction my correspondent is from so I’ll quote the law as it applies in Queensland.  The Health Practitioner Regulation National Law (Queensland) s 141 says:

(1) This section applies to a registered health practitioner (the “first health practitioner”) who, in the course of practising the first health practitioner’s profession, forms a reasonable belief that—

(a) another registered health practitioner (the “second health practitioner”) has behaved in a way that constitutes notifiable conduct; or

(b) a student has an impairment that, in the course of the student undertaking clinical training, may place the public at substantial risk of harm.

(2) The first health practitioner must, as soon as practicable after forming the reasonable belief, notify the health ombudsman of the second health practitioner’s notifiable conduct or the student’s impairment.

I infer that we are talking about a conscious choice to take the overdose regardless of whether it’s an overdose of an illegal, recreational drug or an attempt at self-harm and that it is not an accidental overdose of a prescribed medication or an situation of involuntary consumption eg ‘drink spiking’.  I shall assume, without debating it, that identifying the student paramedic has a deliberately overdosed does give rise to a reasonable belief that the ‘student has an impairment that, in the course of the student undertaking clinical training, may place the public at substantial risk of harm’.

Patients have a right to expect that their information will be held in confidence and that their privacy will be protected, but those rights can and are overridden by law.  With respect to the privacy principles the obligation to use information only for the purposes for which it was obtained do not apply where the release of the information is required by another law.  In Queensland Privacy Principle 10 (Information Privacy Act 2009 (Qld) Sch 3) says (emphasis added):

(1) An agency having control of a document containing personal information that was obtained for a particular purpose must not use the information for another purpose unless—…

 (c) use of the information for the other purpose is authorised or required under a law…

In short the mandatory reporting requirements of the Health Practitioner Regulation National Law take precedence over the duty of confidentiality and the patient’s right to privacy.

It is well known that this issue is problematic as it may discourage practitioners seeking health care from their professional colleagues for fear of being reported.  To that end Western Australia has granted an exemption.  The Health Practitioner Regulation National Law (WA) (Set out in the Schedule to the Health Practitioner Regulation National Law (WA) Act 2010) cl 141 adds paragraph (4)(ca).  That section says:

(4) For the purposes of subsection (1), the first health practitioner does not form the reasonable belief in the course of practising the profession if —…

(ca) the first health practitioner forms the reasonable belief in the course of providing health services to the second health practitioner or student…

(See also AHPRA Mandatory reporting (2019)).

Conclusion

It’s true the obligation to report a student’s impairment is inconsistent with that person’s right to expect confidential treatment and to have their privacy respected.  That these principles are inconsistent is neither new nor unknown.  The legislature has considered this and determined that the obligation to report the impairment takes priority over the obligation to maintain the patient’s privacy (except in Western Australia).   It is not ‘breaking the law to report the student paramedic to AHPRA’; it would be breaking the law to fail to do so (except in Western Australia).

Today’s question arose in

…  light of the recent murder in Melbourne. Can you go through the comparing courtesies versus mandatory actions following crimes? We often provide statements and documentation as a courtesy following official requests yet it has always been an impression that in a crime scene police have more authority when it comes to evidence, taping of scenes for example and seizing equipment and belongings until released.

I’ll answer this question in the context of Victoria.

Specific ‘crime scene’ powers are provided for in

• the Australian Capital Territory (Crimes Act 1900 (ACT));
• New South Wales (Law Enforcement (Powers and Responsibilities) Act 2002 (NSW));
• the Northern Territory (Police Administration Act 1978 (NT));
• Queensland (Police Powers and Responsibilities Act 2000 (Qld)); and
• Tasmania (Police Offences Act 1935 (Tas)).

In general terms, when police exercise crime scene powers they can cordon off an area to restrict access, seize items found in the crime scene and interview people found in or near the crime scene.

There is no mention of ‘crime scene’ (in a relevant context) in Western Australia, South Australia or Victoria.  It is clear that Victoria police do, as they must, cordon off crime scenes, seize evidence and take steps to ensure that the scene is not contaminated (see for example, R v Alexander [2006] VSCA 142, [69]) but I cannot see where they have any specific, statutory authority to do that.  The power, to the extent there is any, must come from common law and be implied by the duties of constable and the obligation upon Victoria police to ‘uphold the law so as to promote a safe, secure and orderly society’ (Victoria Police Act 2013 (Vic) ss 8 and 51).

A brochure on Police powers: Your rights in Victoria (2017 Victoria Legal Aid) suggests Victoria police have very limited powers.  “Victoria Police policies and procedures are published in the Victoria Police Manual (VPM)” (https://www.police.vic.gov.au/policies-procedures-and-legislation).  Unfortunately I cannot access the VPM so I do not know what it says about crime scene powers (if any).

In Victoria police can require a person to give their name and address where the police officer believes that the person ‘may be able to assist in the investigation of an indictable offence which has been committed or is suspected of having been committed’ (Crimes Act 1958 (Vic) s 456AA).  Police cannot detain a person who is not under arrest for an offence (s 464I).

According to the Victims of Crime website (https://www.victimsofcrime.vic.gov.au/police-investigation/collecting-evidence):

Some items of your property may be related to a crime. If so, the police may need to take these for use as evidence at court. Police must give you a receipt if they take away any of your property. If the property is needed as evidence at court, you may not be able to have it returned to you until after the case is finished. You can expect that the police return your property as soon as possible.

Unfortunately they don’t say what legislation gives police the power to detain property.  Where police do think there is evidence of a crime they can obtain a warrant that allows them to seize that property – Crimes Act 1958 (Vic) s 465.

What follows is that no-one is obliged to cooperate with police or answer their questions other than to provide their name and address where s 456AA, above, applies.  That is true for everyone including paramedics.  If police ask paramedics for a statement as to what they observed and did one would expect that paramedics would indeed assist but they are not compelled to do so.    They may chose not to if for example the police want a statement about what a patient said whilst in the ambulance and to give the statement would breach the patient’s right to keep the communication confidential- see

• Paramedics and Patient Confidentiality number 2 (July 23, 2015); and
• Paramedic providing a statement to Queensland police (June 16, 2017).

Equally paramedics may want to report to police what they observed in the course of their duties due to the serious nature of any offence, but equally, they may not – see Discovering crime during an emergency response (July 19, 2016).

If items held by the paramedics will assist in the investigation, Victoria police would need to issue a subpoena or obtain a search warrant to compel production of those items.

 

A paramedic from Western Australia (I don’t know what organisation my correspondent works for) is being asked to provide immunisation services.  My correspondent has:

… been asked to complete the “on-line update” training on providing immunisations designed for providers who are already trained, however, I have not completed the initial training course (aimed at registered nurses and pharmacists – as per WA health information from their website). I do hold a bachelor degree in paramedical science, and have participated in consistent on-line and group cpd,; as well as being ALS 2 Qualified.

My new employer has been requesting me to complete the “short on-line update course” and I am told that will be fine, however, I was taught to be cautious and I want to know where I stand in legal terms of providing an immunisation i.e ADT or Twinrix booster whilst only completing the update for already accredited immunisation providers.

I am skilled in IM injection administration; I am well versed in managing life-threatening conditions I.e anaphylaxis; seizures; and other conditions that may be associated with adverse reactions to immunisations; and I have full AHPRA registration; a PRODA Account (to register to update the Australian Immunisation Register). Likewise, for what it’s worth I do have personal liability insurance, although I am by definition an employee.

The administration of an (S4) Immunisation would be over sighted via a telephone consult by an Occupational Medical Doctor where no SASA is in writing (structured administration and supply arrangement).

Could you please advise what is a registered paramedic’s best course of action to take; especially if they are under pressure to complete the “abbreviated update training” within two days, where their new employment may be dependent on having the training done, which may not be in my understanding the correct pathway to be deemed competent under the department of health, especially when applying to update the Australian Immunisation Register (AIR) etc.

The WA health department provides details on ‘Immunisation education’ on its website at https://ww2.health.wa.gov.au/Articles/F_I/Immunisation-education.  That website says

WA Health provides immunisation education to health professionals within the State.

This includes a comprehensive immunisation course for immunisation providers…

The listed courses for health professionals are courses for nurses, midwives and Aboriginal health workers. The website also provides details for recognition of prior learning and ‘Immunisation clinical competency assessment’. The options for RPL is available for ‘Immunisation providers who hold immunisation course certificates from outside Western Australia’.  That is not my correspondent. The option for clinical competency assessment is a tool to ‘assist individuals in identifying levels of competency in their immunisation practice’.  It is not an alternative to an appropriate immunisation course.

The website also provides information on ‘Immunisation Education Update Day webinar series’ and ‘Online immunisation update’.  I infer that it is the ‘Online immunisation update’ that my correspondent has been asked to complete.  The information for that program says:

The Immunisation Update (external site) has been developed by the CDCD [Communicable Disease Control Directorate] and is offered free of charge. Providing WA immunisation providers with this update creates an opportunity for 24/7 access to current immunisation education. The online version creates a solution to the provision of immunisation updates, in an efficient and effective manner to immunisation service providers.

Although nurses with immunisation certification are required to undertake an annual update to maintain their certification, the update is also available to all immunisation providers as a tool to increase immunisation knowledge.

The update comprises of 4 modules including scenarios and quizzes. It will take approximately 4 hours to complete and can be done over multiple sessions.

It seems clear that this is not intended to replace the ‘initial training course’.

On the web page providing ‘Immunisation provider information and resources’ the Department of Health says

The CEO of Health has issued the below SASAs [Structured Administration and Supply Arrangements] to authorise certain Registered Nurses and Midwives to administer vaccines in accordance with the Medicines and Poisons Regulation 2016. Providers who are eligible to work under the relevant SASA are encouraged to familiarise themselves with the requirements.

(The relevant SASAs appear to be:

1. Registered Nurses – vaccination (Word 91KB)
2. Midwives – vaccination (Word 90KB) but see also
3. Pharmacists – influenza vaccination (Word 89KB)).

That means that those nurses and midwives authorised by the SASA can possess, supply and administer the vaccinations on that authority.  This will not extend to my correspondent who is a paramedic but not a nurse nor a midwife.

Twinrix is ‘inactivated hepatitis A and recombinant DNA hepatitis B vaccine’ (https://au.gsk.com/en-au/products/our-prescription-medicines-and-vaccines/vaccines/twinrix/).  Hepatitis A and B vaccines are listed in Schedule 4 of the Poisons Standard (21 December 2018, https://www.legislation.gov.au/Details/F2019L00032).   Schedule 4 poisons are ‘Prescription Only Medicine’ (cl 1.3).

In WA (Medicines and Poisons Act 2014 (WA) s 27):

An employee or agent of a health professional acting within the scope of the employee’s or agent’s actual or apparent authority, may do anything that is authorised by the professional authority of the health professional, other than to prescribe a medicine.

If my correspondent was employed by a medical practitioner then my correspondent could possess, supply and administer the medication provided it was the doctor who actually determined that the medication was warranted ie prescribed the medication. However I doubt that my paramedic is actually employed by a medical practitioner.

Assuming that my correspondent’s employer is a ‘health service’ then the health service can issue a SASA authorising my correspondent, as an employed health professional, to carry, supply and administer schedule 4 drugs (Medicines and Poisons Regulations 2016 (WA) r 34 and r 62).   Administration of a schedule 4 drug must be on the direction of a ‘prescriber’ (relevantly a doctor) or in accordance with a standing SASA (rr 15 and 62).

Discussion

That is a long way of saying that:

1. If my correspondent’s employer is a health service (a term that is not defined) and
2. If there is in place a SASA authorising my correspondent as a paramedic to administer, possess and supply the schedule 4 immunisation drugs; and
3. If there is a direction from a prescriber (in the absence of independent authority in the SASA) to administer the immunisation; then

It can be lawfully administered.

But that does not answer the critical question of whether my correspondent is competent to administer the drugs.  My correspondent says

I do hold a bachelor degree in paramedical science, and have participated in consistent on-line and group cpd, as well as being ALS 2 Qualified… I am skilled in IM injection administration; I am well versed in managing life-threatening conditions i.e anaphylaxis; seizures; and other conditions that may be associated with adverse reactions to immunisations; and I have full AHPRA registration; a PRODA Account (to register to update the Australian Immunisation Register).

Paramedic registration under the Health Practitioner Regulation National Law does not define scope of practice.  The Code of Conduct (Interim) issued by the Paramedicine Board (June 2018) says (at [1.2]):

Practitioners have a responsibility to recognise and work within the limits of their competence and scope of practice. Scopes of practice vary according to different roles … To illustrate, in relation to working within their scope of practice, practitioners may need to consider whether they have the appropriate qualifications and experience …

Paragraph [2.2] says:

Maintaining a high level of professional competence and conduct is essential for good care. Good practice involves:

a) recognising and working within the limits of a practitioner’s competence and scope of practice, which may change over time

b) ensuring that practitioners maintain adequate knowledge and skills to provide safe and effective care

c) when moving into a new area of practice, ensuring that a practitioner has undertaken sufficient training and/or qualifications to achieve competency in that area…

The Continuing Professional Development registration standard (17 May 2018, p. 1) says that a paramedic must chose CPD that ‘contributes directly to improving your competence (performance and behaviour) and keeping you up to date in your chosen scope and setting of practice.’

As a registered professional it is up to my correspondent to determine whether he or she is comfortable and feels competent to administer immunisations in accordance with the SASA issued by his or her employer.  If not it is up to the paramedic to raise that with the employer and undertake CPD to gain that competence.  Who pays for that training and on whose time it is completed is a matter for negotiation between the employer and employee.

Conclusion

“The administration of an (S4) Immunisation … over sighted via a telephone consult by an Occupational Medical Doctor” is lawful provided there is an SASA in place to authorise the paramedic to carry, supply and administer the listed medication, albeit administration is on the direction of a doctor.

Whether the ‘short on-line update course’ is sufficient to give the paramedic confidence and competence to administer the immunisation is a matter ultimately for the paramedic who is responsible for his her professional development and scope of practice.

The difference for nurses and midwives is that if they do the courses offered by WA Health they can take advantage of the SASAs issued by the CEO of Health and can independently authorise the administration of the immunisation.

 

 

 

 

Today’s correspondent asks me to

… discuss Victoria’s use of ‘Non-emergency Patient Transport” companies in 000 emergency call outs?

Private companies are now dispatched daily to facilitate emergency room admissions consisting of any possible diagnosis including elderly broken hips, severe back pain, people undergoing radiation and chemotherapy complications, pregnant women with abdominal pain and bleeding, patients undergoing severe psychiatric episodes and paediatric emergencies…

I work for a private provider and I am curious as to the legalities of using these severely under-resourced and under-qualified resources as a means of attending emergency jobs and supposedly easing pressure on emergency ambulances and their ability to have improved response times to code 1 cases. 8 of my last 10 jobs have been referred back to an emergency ambulance, and my employer informs me that in the last 3 days, 120 cases have been referred in-field back to emergency crews leaving patients in pain or delaying attendance at ED significantly as non-emergency crews have minimal means of intervention and are bound by stringent protocols that do not allow transport if patient vital signs are out of range …

My correspondent also provides details of workloads, time on shift, overtime, double loads etc but I can’t address everything and I don’t think those issues are relevant to the question of ‘the legalities of using these severely under-resourced and under-qualified resources as a means of attending emergency jobs’. They are industrial issues beyond the scope of this blog and arguably beyond the scope of Ambulance Victoria as Ambulance Victoria is not the licensing authority for NEPT providers. Licenses are granted by the Secretary of the Department of Health and Human Services (Non-Emergency Patient Transport Act 2003 (Vic) s 13).

The Ambulance Services Act 1986 (Vic) s 15 says that the objectives of ambulance services in Victoria are

(a)          to respond rapidly to requests for help in a medical emergency;

(b)          to provide specialized medical skills to maintain life and to reduce injuries in emergency situations and while moving people requiring those skills;

(ba)        to provide safe, patient-centred and appropriate services;

(c)           to provide specialized transport facilities to move people requiring emergency medical treatment;

(d)          to provide services for which specialized medical or transport skills are necessary;

(da)        to foster continuous improvement in the quality and safety of the care and services it provides;

(e)          to foster public education in first aid.

Not everything in that list is about an emergency.

Ambulance Victoria operates a fleet of ambulances and employs paramedics but there is nothing in the Act to say that using the Ambulance Victoria fleet is the only way that they can respond to a request for ambulance services.  It is well known, for example that the Metropolitan Fire Brigade form a crucial part of Ambulance Victoria’s response to calls for assistance.

The Non-Emergency Patient Transport Act 2003 (Vic) provides for licencing of non-emergency patient transport (NEPT) providers.  Non-emergency patient transport service means (s 3):

a service that offers or provides for—

(a)          the transport of persons on public roads to or from medical services—

(i)            using a stretcher carrying vehicle; or

(ii)           where the persons being transported are provided with specialist clinical care or monitoring while being so transported; or

(b)          the transport of persons by air to or from medical services where the persons being transported—

(i)            are transported on stretchers; and

(ii)           are provided with specialist clinical care or monitoring by the person operating the transport service

The definition does not refer to the patient’s condition being not urgent.    Neither the Ambualnce Services Act nor the Non-Emergency Patient Transport Act define ‘emergency’.  The Non-Emergency Patient Transport Regulations 2016 (Vic) defines low, medium and high acuity patient.  A high acuity patient (r 8)

requires—

(a)          active management or intervention; and

(b)          one or more of the following—

(i)            cardiorespiratory support;

(ii)           a higher level of care than that required for the transport of a medium acuity patient;

(iii)          observation and monitoring of an intravenous infusion that contains vasoactive agents;…

No doubt in some cases those people are very sick.

My correspondent is indeed correct that there are clinical conditions where an NEPT provider must not transport the patient (r 10) however transport may be authorised by a doctor, nurse or paramedic ‘working in the communications centre of Ambulance Service—Victoria’ where transport is ‘necessary to avoid the possibility of the patient dying or suffering an adverse event were the patient required to wait for a different form of transport or for assessment’ (r 10(5)).

What is an emergency?  Ambulance Victoria (like other ambulance services) operates a campaign to encourage people not to call triple zero except in an emergency.  They say (https://www.ambulance.vic.gov.au/campaigns/save-triple-zero-emergencies/):

People sometimes hesitate to call Triple Zero (000) because they are not sure if the situation qualifies as an emergency. If in doubt, always call Triple Zero (000). Call takers are trained to help you and will direct you to the appropriate assistance.

An immediate life-threatening emergency needing an ambulance may include the following:

• chest pain or chest tightness
• difficulty breathing
• extreme pain
• large burns
• serious accidents or trauma
• severe bleeding
• sudden numbness or paralysis of the face, arm or leg
• unconsciousness

Conditions such as ‘broken hips, severe back pain, people undergoing radiation and chemotherapy complications, pregnant women with abdominal pain and bleeding, patients undergoing severe psychiatric episodes’ arguably don’t fit those definitions (unless there is ‘extreme pain’) so are a ‘non-emergency’.  Ambulance Victoria also has in places process to triage calls to limit the use of emergency ambulances, they say (https://www.ambulance.vic.gov.au/wp-content/uploads/2017/06/revised-clinical-response-model-evaluation-report-faqs.pdf; emphasis added):

The Ambulance Victoria Referral Service is staffed by paramedics and registered nurses who assess less-urgent Triple Zero (000) calls. It is a safe and proven method of assessing these calls in greater detail to ensure we can meet the patient’s individual need and the urgency of their case. This may result in an ambulance being dispatched or referral to an alternative service, such as a locum doctor or nurse, provision of self- care advice, or return of the case for either emergency or non-emergency ambulance dispatch. The Referral Service has operated in metropolitan regions since 2003 and expanded to all regions of the state in April 2014.

An ambulance is ‘A vehicle equipped for taking sick or injured people to and from hospital, especially in emergencies’ (Oxford dictionary (online)).  An NEPT vehicle is a non-emergency ambulance.

It stands to reason that triple zero call takers and those in the Ambulance Victoria Referral Service have to make assessments of the patient’s condition based on incomplete information and sometimes inaccurate reporting by bystanders (see for example, Coroner reports on first aid and QAS response to death in care (May 21, 2019)).  No doubt some calls will be assessed as requiring an emergency ambulance when that is not the case, and some will be assessed as requiring a non-emergency response when that will also not be the case.   At least sending an NEPT provider gets someone there and if they report back that emergency paramedics are required then it is a form of effective triage.

Conclusion

So what are the ‘legalities of using these severely under-resourced and under-qualified resources as a means of attending emergency jobs?’  There are no specific legalities.  Ambulance Victoria is charged with providing ambulance services to the people of Victoria but that does not mean they are limited to only using its own staff and its own fleet.

As Ambulance Victoria says it tries to limit its resources to emergencies (not defined in law but with some guidance from their own publication).  It can, and does, rely on other resources and providers to help meet the legislated objectives including responding rapidly to requests for help in a medical emergency (see http://www.mfb.vic.gov.au/Community/Emergency-Medical-Response.html).  The use of NEPT providers to respond to requests for ambulance services may be seen to be consistent with providing ‘specialized medical skills to maintain life and to reduce injuries … while moving people requiring those skills’, ‘safe, patient-centred and appropriate services’ (where emergency paramedics are not ‘appropriate’) and ‘services for which specialized medical or transport skills are necessary’.

Clearly it’s legal to use NEPT providers, subject to the terms of their licence and the provisions of the Non-Emergency Patient Transport Act to respond to calls that are assessed as non-urgent.  There may be disputes as to what is ‘urgent’ or what is ‘appropriate’. Like all definitions they may be matters on which minds differ but the ultimate call on who to dispatch is a matter for Ambulance Victoria.

If NEPT providers are under resourced, under qualified or overworked that is matter for the service providers and the Secretary of the Department.

This is another coroner’s inquest that will be of interest to readers of this blog – Inquest into the death of John Davis, Queensland Coroners Court, 17 April 2019.

Mr Davis was a 50 year old man with ‘acquired brain injury from birth resulting in intellectual impairment and epilepsy, severe obstructive sleep apnoea, gastro-oesophageal reflux disease and osteoporosis’ ([1]).  He was living in supported care.  The circumstances of Mr Davis’ death were described at [3]-[8]:

At approximately 11:00am on 8 April 2018, Mr Davis and the three other residents at the facility were given lunch by their daily carer Mr Joseph Oderinde … Mr Davis was heard to collapse to the floor. Mr Oderinde found Mr Davis unresponsive. Mr Oderinde called 000 and monitored Mr Davis’ response with the assistance of the Emergency Medical Dispatcher (EMD). When it became apparent Mr Davis was not breathing he was instructed to perform cardiopulmonary resuscitation, which he did until the first paramedics arrived.

A total of three Queensland Ambulance Service (QAS) crews were eventually dispatched to the residence as Mr Davis deteriorated. When paramedics first arrived they found Mr Davis with a Glasgow Coma Scale (GCS) of 3 and in pulseless electrical activity (PEA). Mr Davis had no cardiac output and was noted to be difficult to ventilate. After initial difficulty with a faulty laryngoscope [where the light did not work so the paramedics could not ‘see below the oral cavity’ ([100])] and the attendance of a Critical Care Paramedic, a large piece of meat was cleared from the airway using a different laryngoscope. Mr Davis was subsequently easier to ventilate and returned to spontaneous cardiac activity.

Mr Davis could not be intubated at the scene and was successfully ventilated using a laryngeal mask airway. Apart from the difficulties in clearing the airway due to instrumental issues, there were some issues relating to proper documentation of the event on the Electronic Ambulance Report Form (eARF)…

Mr Davis was transferred to the SCUH and was noted to be spontaneously breathing and easy to ventilate with the laryngeal mask airway. He remained at a GCS 3 and was intubated.

A CT scan revealed changes consistent with significant brain injury due to the period without blood and oxygen supply, known as hypoxic-ischaemic encephalopathy. The CT scan also revealed that changes related to his previous brain injury, which was reported as being stable in comparison with scans taken in January 2014 (over 4 years earlier).

Mr Davis made no significant recovery and died at 00:50am on 10 April 2018.

The Coroner investigated many aspects of Mr Davis’ care but relevant to this blog is the discussion around CPR and the QAS response.  A review by QAS found (at [101]-[102]):

• Officers Lahood and Nightingale failed to adequately identify and manage a patient with a foreign body airway obstruction.
• The primary patient care eARF was of significantly poor standard with major errors and admissions.
• Officers Lahood and Nightingale failed to self-report this case as a clinical incident.

Additionally, significant and vital equipment failure occurred during the incident (probable flat laryngoscope batteries), with no documented pre-shift vehicle and equipment check for that day.

In reviewing the evidence it was clear that there were communication difficulties between Mr Oderinde and the EMD.  There was conflicting reports back to the EMD as to Mr Davis condition.  At times MR Oderinde reported that Mr Davis was breathing when the sounds on the recording of the triple zero call suggested that there was no effective breathing.  With respect to Mr Oderinde’s response the coroner said (at [150]-[154]; emphasis added):

It is apparent Multicap [the operator of Mr Davis’ accommodation] ensures all its DSWs [Disability Support Workers] have up to date First Aid and CPR training…

DSWs do not provide clinical care and could not be expected to in the circumstances. The appropriate policy in place was for DSWs to follow their training and call emergency services.

In this case it is evident Mr Oderinde cleared the area to make it safe for CPR, checked the airway and rang 000. Mr Oderinde did not observe any obstruction and it is fair to say neither did Officer Lahood.

I find on balance that Mr Oderinde was wrong about the time he called 000 and it was much closer to 12:07pm than 11:52am. It may have been whatever time piece he used that showed this timing was incorrect. I accept there may have been a few minutes pass while he cleared some space, placed him in an appropriate recovery position and checked his airway, and there may have been some time before the 000 call went through to QAS but I do not believe Mr Oderinde did nothing for a number of minutes.

What happened from there was not optimal in that there was a clear difficultyin the transfer of accurate information between Mr Oderinde and the 000 EMD. What was evident to me, and a reason why Dr Rashford was asked to review the call, is that it was possible what I was hearing was perhaps agonal breathing some minutes before CPR commenced. Dr Rashford is of the opinion that was the case. I am not critical of Mr Oderinde in being unable to recognise this for what it was as it is clearly out of the scope of practice of DSWs to make such clinical judgments.

With respect to the QAS response the coroner said (at [155]-[161]):

The issue of the call received by the QAS EMD was very robustly analysed by Dr Rashford [Medical Director for QAS] where he concluded that on balance the call was not handled optimally.

Dr Rashford stated that from listening to the call the EMD found the case very difficult due to the conflicting information being presented. Having listened to it on a number of occasions I can only agree.

Dr Rashford found there were understandable human factors at play that resulted in a delay in recognising the choking episode complicated by cardiac arrest. Despite that, there was no delay to paramedics arriving on the scene.

Given Dr Rashford’s evidence about the significant education in this area that has been undertaken and is continuing to be developed, I do not see the need to further comment or consider further recommendations in this regard.

QAS also investigated the actions of the various paramedics at the resuscitation and subsequent to it. The investigation considered two paramedics failed to adequately identify and manage a patient with a foreign body airway obstruction. This finding is mitigated to some extent by the relative rarity of the paramedics coming across foreign body airway obstruction conditions and infrequent experience of real-time direct visualisation laryngoscopy by ACPs.

The two paramedics concerned have received further training in airway management and in the use of laryngoscopes and have otherwise been performance managed.

The evidence supports a finding that by the time paramedics arrived Mr Davis had been in cardiac arrest for some time and would have already suffered a degree of hypoxia from which it was unlikely he could recover. That being said, it evident the earlier CPR commenced (likely to have been ineffective until the obstruction was removed) and the earlier the removal of the food bolus obstruction occurred, then the better the chance of a more favourable outcome eventuating.

As with the inquiry into the State Mine Fire (see Two coroners inquests that may be of interest (May 21, 2019) the coroner was assisted by an agency inquiry, in this case the review by QAS, and their report on what training they had introduced generally, and specifically with respect to those involved in the case.  In light of the steps QAS had taken to ensure that their call takers and paramedics were informed and trained, the coroner said (at [162]) that he did:

… not consider any recommendations need to be made to QAS in respect to its findings on its investigation as there is clearly ongoing improvement processes as part of its organisational ethos and it is best placed to drive those forward

The coroner did recommend that other disability service providers consider adopting a checklist developed by Multicap to assist service providers ‘to identify future residents who may have swallowing/choking risks’ (see [164]-[165]).

Again, however, no adverse comments directed to Mr Oderinde, the paramedics or QAS.  A review of a tragic case where provided care was sub-optimal but with recognition of the factors that contributed to that and recognition of steps already taken by Multicap and QAS to improve future performance.  The coroner reviews past cases to make forward looking recommendations. Although coroners can make adverse findings and recommend criminal prosecutions, that is rare and doesn’t arise just because someone died and sub-optimal responses can be identified.

Conclusion

I am reminded of an earlier post – Confined space rescue – Queensland (May 13, 2019) where the question I was asked ended with ‘… would a company’s risk assessment stand up in coroners court when it follows processes outside/contradicting of industry best practice?’  One can’t be too specific, as I say coroners can make adverse findings (see 2003 Canberra bushfires, the coroner and litigation (June 26, 2009)) and can refer people to the DPP for possible criminal prosecution that is not the norm.  What one might expect if there appears to be a poor risk assessment is that the coroner would ask the company ‘and what have you done to fix the problem?’ and perhaps make recommendations for others to avoid similar, tragic circumstances (see also First aid and paramedic care – and coroners are not out to get you (December 1, 2018)).