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Discussion on the law that applies to or affects Australia's emergency services and emergency management, by Michael Eburn, PhD, Australian Lawyer. Email: meburn@australianemergencylaw.com
Updated: 14 hours 51 min ago

Further fear over installing an AED

18 September, 2023 - 13:22

Today’s question comes from a member of a strata property’s owner’s committee in Victoria. The committee is debating the installation of an Automatic External Defibrillator (AED).  The Committee would propose to follow all the manufacturer’s instructions regarding maintenance. Even so, I’m told that ‘In some quarters there has been concern about potential liability if we have an AED and it has an unknown fault which prevents it from functioning in an emergency situation.’  I’m asked to assume:

… In a cardiac emergency, someone tries to use the AED but, due to an unforeseen technical fault, it fails to function properly, and the patient is not resuscitated.

I am asked:

In this situation, is the Owners Corporation and / or the Owners Committee (collectively or individually) liable and is there potential for a lawsuit?

The short answer

No.

The long answer Duty

Liability can arise if there is a duty of care, a breach of that duty that is a failure to take reasonable care, and that breach causes loss or damage.

There is, at this stage, no legal duty to install an AED – see:

There is also no common law duty to rescue – see No duty to prevent a disaster and no duty to rescue (December 26, 2018). Consistent with the cases discussed there, and the UK case of Capital and Counties v Hampshire Council [1997] QB 2004 the duty, if any, that an owner’s corporation would owe to a person suffering a sudden cardiac arrest is a duty not to make the situation worse, it is not a duty to make it better. 

Occupiers of premises have a duty to those that enter the premises. The Wrongs Act 1958 (Vic) s 14B(3) says:

An occupier of premises owes a duty to take such care as in all the circumstances of the case is reasonable to see that any person on the premises will not be injured or damaged by reason of the state of the premises or of things done or omitted to be done in relation to the state of the premises.

If a person takes the AED and for unknown reasons it fails to work, the patient is no worse off than if there was no AED.  The cause of the person’s predicament is their sudden cardiac arrest not the presence or absence of the AED.  Under either the common law or the statutory duty the failure of the AED is not the cause of anyone’s injury or damage and the failure to make the situation better is not a breach of any relevant duty.

Breach

Let us assume for the sake of the argument, there is a duty of care. Then the next question is was the duty breached? Did the owner’s corporation take reasonable care? The assumption is that all the manufacturer’s maintenance recommendations will be followed.

The Wrongs Act 1958 (Vic) s 48(1) says:

A person is not negligent in failing to take precautions against a risk of harm unless—

(a) the risk was foreseeable (that is, it is a risk of which the person knew or ought to have known); and

(b) the risk was not insignificant; and

(c) in the circumstances, a reasonable person in the person’s position would have taken those precautions.

Is it foreseeable that an AED will not work? I guess so, we are discussing it so we can foresee it.

Is the risk ‘not insignificant’? That term is defined (s 48(3)) to include, but is ‘not limited to, risks that are far-fetched or fanciful’.  I guess it’s not ‘far-fetched or fanciful’ that an AED may fail.

What would a reasonable person do about that risk?  In deciding that question we must have regard to (s 48(2)):

a) the probability that the harm would occur if care were not taken;

b) the likely seriousness of the harm;

c) the burden of taking precautions to avoid the risk of harm;

d) the social utility of the activity that creates the risk of harm.

The real harm is death by sudden cardiac arrest but let us assume for the sake of the argument the failure of the AED is a relevant ‘harm’.  How likely is that it will fail?  I don’t know but I suspect very unlikely. As my correspondent says ‘I assume that the probability of failure of the AED is very small, given the regular automatic self-test of the unit and indication if there is a fault condition’. So the probability of failure is low.

What is the consequence of that failure? The patient doesn’t get the benefit of the AED; but not everyone in cardiac arrest will benefit from an AED that is not every cardiac arrythmia can be corrected by an AED; and no everyone who would benefit from an AED will survive even if one is used. What the patient may miss out on is a chance of increased survival.

What precautions would one reasonably take to avoid that failure? Follow the manufacturer’s maintenance instructions.

What is the social utility? If you have an AED, and it works, it may save a life. If you don’t have an AED then the patient is denied that chance. So there is great social utility in having one and if by some chance it fails to work the patient is in the same position as if you did not have one so there is no chance of increasing the risk to anyone. At worst you don’t extend a benefit.

On any calculus if you install one, follow the manufacturer’s instructions but for some unknown reason on the day someone goes to use it, it doesn’t work there would be no breach of duty.

Damage

Even if there was a duty of care to have a working AED, and even if there was a breach of that duty, then any legal action would require proof of damage, that is proof that it is more likely than not that if the AED would have worked, the outcome would have been better.

The statistics may say the chance of survival is increased with early CPR and early defibrillation, but the chance of survival is still low.  NSW Health says ‘Over 33,000 people experience an out of hospital cardiac arrest in Australia every year. Less than 9% will survive’.  If anyone were to sue they would have to show, on the balance of probabilities, that the working AED would have made a difference to the outcome of that particular case. But that will be impossible.  We cannot know in advance who will be in the 9% nor, I would suggest, would an autopsy show that a particular patient would have benefited. It may show given the damage and cause of death eg a ruptured aortic aneurysm that a particular patient would not have benefited, but it couldn’t show who would.

On the balance of probabilities, a person who suffers a sudden cardiac arrest will die.  That is what makes the success stories newsworthy. The aim of AEDs is to try to get the survival rate up, but no-one suggests it’s going to get to higher than 50%.

If the AED doesn’t work, it won’t have ‘caused’ any harm to the patient.  It didn’t make things worse, it just did not make it better and there is no guarantee in any particular case that it will.

Discussion

The thing that really concerns me is that the fear of getting sued outweighs the fear of letting someone die if you could do something to prevent that.  No AED and you don’t get sued but do you feel comfortable telling the family of deceased you were happier to stand back and let them die rather than do something that might help?  Will the owner’s committee at the next meeting all pat themselves on the back saying ‘the resident at number 10 died last night, but at least our insurer is saved from legal action?’ 

No-one’s been sued for doing first aid. No-one’s going to be sued for, in good faith, installing an AED, maintaining it and for some reason it doesn’t work.  The risk would be the same if you were present at a cardiac arrest and the person doing CPR said ‘can you ring an ambulance?’, you pull your phone out of your pocket and say ‘oh goodness, my phone’s not working’.  But do you refuse to carry a phone because one day, in an emergency, it may not work?

The legal risk for an owner’s corporation would be much greater if the elevator doesn’t work and people get trapped. This is not however the place for legal advice, so if the owner’s corporation is concerned, they should speak to their insurer who, I’m sure, would confirm that the legal risk is non-existent.

Conclusion

There is no legal risk that installing an AED and following the manufacturer’s maintenance instructions would expose an owner to risk of liability if for some unknown, unforeseen reason the machine failed to operate.

For further discussion see:

This blog is made possible with generous financial support from the Australasian College of Paramedicine, the Australian Paramedics Association (NSW), Natural Hazards Research Australia, NSW Rural Fire Service Association and the NSW SES Volunteers Association. I am responsible for the content in this post including any errors or omissions. Any opinions expressed are mine, and do not necessarily reflect the opinion or understanding of the donors.

Categories: Researchers

Flashing lights, private cars

17 September, 2023 - 17:13

Once again, I’m asked about emergency lights on a private vehicle. Today’s question is:

I am a member of the state emergency service, if I arrive at the incident in my own private vehicle, am I allowed to display red lights whilst stationary to give the heads up that vehicle is an emergency vehicle? Or would I use amber lights?

I assume the person means a red flashing light. 

I’m not told what jurisdiction this person is from. If we take the NSW law for example, State Emergency Service vehicles may be fitted with flashing lights (Road Transport (Vehicle Registration) Regulation 2017 (NSW) Sch 2, cl 114(4)(p)), but not vehicles owned by members of the State Emergency Service.

Again, using NSW law as my example, a driver is required to slow down when passing an emergency response vehicle displaying a flashing blue or red lights. An emergency response vehicle includes a vehicle ‘being used by … (v) the NSW State Emergency Service’ (Road Rules 2014 (NSW) s 78-1). I would suggest a vehicle is ‘being used by’ the SES when it is an SES vehicle or where there is an incident and the incident controller says to a member – ‘we’re out of vehicles here, you take your team and make your way to this job in your car’.  It is not being used by the SES just because it is being driven by a member of the SES who happens across an accident.

A person could buy red flashing lights (think bicycle tail lights, or torches sometimes come with red flashing lights) and use them and they are not fitted to nor form part of the vehicle. Using them is not unlawful.  But if you use the lights in the way to create the impression that the vehicle is something it is not then even as a member of the SES I could see issues to do with ‘impersonation’ (see State Emergency and Rescue Management Act 1989 (NSW) s 63B(2)(a)).

Fundamentally vehicles marked up and owned by the various emergency services are fitted with flashing red/blue warning lights. The right to carry and use those does not extend to the members of those organisations in their private cars. If you want to put a flashing light on your car, particular one of the type you can buy from Repco or the like that look like the sort of light that one would expect on an emergency vehicle, stick with amber.  

This blog is made possible with generous financial support from the Australasian College of Paramedicine, the Australian Paramedics Association (NSW), Natural Hazards Research Australia, NSW Rural Fire Service Association and the NSW SES Volunteers Association. I am responsible for the content in this post including any errors or omissions. Any opinions expressed are mine, and do not necessarily reflect the opinion or understanding of the donors.

Categories: Researchers

Using the protected title ‘paramedic’ in TV entertainment

17 September, 2023 - 16:37

A correspondent has sent me details of broadcast on channel 10 as part of their new program ‘The Inspired unemployed impractical jokers’.   I’ve not seen the show but the website says:

The Inspired Unemployed Impractical Jokers have to do and say what they are told in secretly filmed challenges . If they refuse, they lose. At the end of the episode, the joker that loses the most challenges takes on the ultimate punishment.

Lifelong mates, Jack, Falcon, Dom and Liam receive commands through an earpiece and hidden cameras capture the chaos. This is the show that revels in The Impractical Jokers’ social awkwardness, as they are instructed to do and say the outrageous.

Episode 4 has the ‘jokers’ running a mock first aid course. In the video available on YouTube, the ‘instructor’ says, at about the 45 second mark, ‘I’ve been a paramedic for about three years …  – see:

For the episode on 10Play see  https://10play.com.au/the-inspired-unemployeds-impractical-jokers/episodes/season-1/episode-4/tpv230904uzvep but you do need to have an account to watch that version.

My correspondent is concerned about the ‘instructors’ claim that he ‘has been a paramedic for about three years’ delivered to

… an unsuspecting course who have been invited to learn CPR by the looks of it. My worry is the broadcast appears to encourage the use of a protected title by others who may watch the episode. I’d be very interested to hear your views.

I don’t think it’s an issue. Section 113(1) of the Health Practitioner Regulation National Law says

A person must not knowingly or recklessly—

(a)        take or use a title in the Table to this section, in a way that could be reasonably expected to induce a belief the person is registered under this Law in the health profession listed beside the title in the Table, unless the person is registered in the profession, or

One of the protected titles is ‘paramedic’. Did he use the title in a way ‘that could be reasonably expected to induce a belief’ that he was registered?  The audience are in on the joke so there would be no suggestion that anyone watching the show would be misled.

As for the alleged participants the whole segment on 10Play takes a little over 10 minutes so there is clearly much more than is shown on the video. We don’t know what they knew, or were told or how they came to be there, nor what they were told after the event. In an interview about the program (Tess Connery ‘The Inspired Unemployed and the logistics of hidden camera showsmediaweek, 9 August 2023) Network EP Sophia Mogford is quoted as saying:

Crucial to it all is that we need to be able to get the release form signed, so you need to have the compliance of the general public afterwards. You need to be able to explain to them what’s happened and make them feel that the joke isn’t on them, it’s very much on boys, in order to make everybody feel comfortable in the situation.

So the whole joke is explained to them at some point and presumably as soon as it’s finished.  Even if for a few minutes the audience were misled I would think most people, and if push came to shove, a court, would not think that the title was used ‘in a way that could be reasonably expected to induce a belief the person is registered’.

I fail to see how the program ‘appears to encourage the use of a protected title by others who may watch the episode.’ The joke would have worked equally whether the person described themselves as a paramedic or not so perhaps the Paramedicine Board may write suggesting they don’t do it again, but I cannot imagine anyone would contemplate launching a prosecution against Channel 10 or the performers in the show.  

This blog is made possible with generous financial support from the Australasian College of Paramedicine, the Australian Paramedics Association (NSW), Natural Hazards Research Australia, NSW Rural Fire Service Association and the NSW SES Volunteers Association. I am responsible for the content in this post including any errors or omissions. Any opinions expressed are mine, and do not necessarily reflect the opinion or understanding of the donors.

Categories: Researchers

Potential consequences of proposed NSW Ambulance industrial action

16 September, 2023 - 16:23

The Health Services Union is one of two unions representing paramedics employed by NSW Ambulance. (The other is the Australian Paramedics Association, a sponsor of this blog). The HSU is advocating that paramedics should not renew their registration when it becomes due on 30 November 2023.  On the Ambulance Division – Health Services Union facebook page they say ‘If the Treasurer is happy to delay paying for professional recognition, surely he’s okay if paramedics defer paying to be registered right?’  Further details can be found on the union’s web page where there is also a link to a pdf document of Frequently Asked Questions.

One of those questions is ‘Will I be stood down?’  The given answer is (emphasis in original):

Paramedics will be invited to renew their registration before 30 November.

  • Under the National Law, health practitioners have a one-month late period after the registration expiry date (30 November) to renew. If an application is received by AHPRA before the end of December, you will remain registered and able to practice. Your registration expiry date on the register of practitioners will be updated only when processing of your application is complete.
  • An application for renewal in the late period will incur a late fee ($30).

If you are stood down, you will be stood down with thousands of other ADHSU paramedics Imagine the pressure of the community on the government if they were to allow this to happen!

Now I’ve always belonged to the union, wherever I’ve worked, and I support the right of workers to take industrial action to maintain and improve their working conditions. Nothing I’m about to write should be considered as reflecting on the merits of the paramedics’ cause or their right to take industrial action.

I have also said, elsewhere in this blog, that I am not an expert in Industrial law and I would usually defer to a union and in particular their legal and industrial officers (see Arranging a shift swap for training (July 14, 2023)).  What follows has to be read in that context, but with that context it seems to me that the question ‘will I be stood down?’ is the wrong question, the right question is ‘will I be dismissed?’

Discussion During December

Paramedic registration renewal is due by 30 November. The Health Practitioner Regulation National Law (NSW) s 108(2) says:

If a health practitioner does not apply to renew the practitioner’s registration before the practitioner’s period of registration ends, the registration, including any endorsement of the registration, is taken to continue in force until—

(a)        the end of the day that is one month after the day the period of registration would, apart from this subsection, have ended; or

(b)        if the health practitioner applies for renewal of the registration not later than one month after the practitioner’s period of registration ends, the day referred to in subsection (1)(a) or (b).

Effectively there is a one-month grace period. If the paramedics don’t apply to renew their registration by 30 November, they remain registered until the end of December and can continue to practice and use their title. If they apply to renew within that month then their registration continues until the Board decides to renew or refuse their application (s 108(1)).  

Not renewing by 30 November is symbolic, but it doesn’t affect the ability of those paramedics to work nor the ambulance service to employ them. It will cost the paramedics a late fee if they seek to renew their registration during December.

After December

If they do not renew by 31 December, then a paramedic’s registration lapses. At that point they can no longer use the title ‘paramedic’. The Paramedicine Board and the Union’s FAQs do say that there is a ‘fast track’ option to renew in January but that is an application for registration, not renewal so one would remain unregistered until a decision is made to either grant, or refuse registration.

For the purposes of Paramedics and Control Centre Officers (State) Award 2022 (28 July 2022) a paramedic is:

… an employee who has successfully completed the necessary and relevant training and work experience as determined by the Service to become a Paramedic and who is appointed to an approved Paramedic position…

It doesn’t specifically say that the person has to be registered with the Paramedicine Board but I think that can be implied given that only a registered person can use the title ‘paramedic’.  I do not have access to the ‘relevant training’ determined by the service, but I would be surprised if it did not include training that leads to registration.

Given that NSW Ambulance officers wear uniforms with the title ‘paramedic’ and are held out as paramedics I infer that is an essential requirement of the job that they are indeed paramedics as defined by the Health Practitioner Regulation National Law (NSW) and the Paramedicine Board – ie they are registered.

If paramedics allow their registration to lapse, they cease to be paramedics and that, to me, sounds like it would be repudiation of their employment.  In Gelagotis v Esso Australia [2018] FWCFB 6092 at [119] the Full Bench of the Fair Work Commission said:

The test for repudiation is whether the conduct of the employee is such as to convey to a reasonable person, in the position of the employer, renunciation either of the contract as a whole or of a fundamental obligation under it. The issue turns upon objective acts and omissions and not on uncommunicated intention.

If an employee is required to be registered to hold their employment and wilfully refuses to renew their registration, then that would suggest that they are no longer willing and able to meet an essential requirement of their job – it is renunciation of their employment as a paramedic because, from that moment, they are not a paramedic.  It would be similar if a person employed as a driver refusing to renew their driver’s licence; they can no longer do the very job they are employed to do.  Just because the intention is to return to work when the dispute is resolved does not change the outcome where the test turns on ‘objective acts and omissions and not on uncommunicated intention’.

Holding Redlich, lawyers, say in an online article ‘Repudiation of an employment contract: Overview and basic principles’:

Repudiation allows the aggrieved party to terminate the Contract if they wish and that desire must be communicated to the offending party for the repudiation to be effective…

[R]epudiation by an employee gives the employer the right to summarily dismiss the employee if it can be shown that the conduct is sufficiently serious that, to the reasonable observer, the employer should no longer be bound by the Contract.

Given that I infer a person cannot be employed and work as a paramedic unless they are indeed registered a as a paramedic, the ambulance service would have grounds to dismiss anyone who let their registration lapse on 1 January 2024.There is no guarantee that if they then renew their registration that they will have a job to go to. 

The HSU says:

… every day during December, the government will be closer to having their paramedic workforce legally unable to respond. Post Jan 1, ADHSU paramedics will continue to front to work in uniform ready to respond, only to be locked out by the employer. Community pressure on the government will be immense.

Post January 1 ADHSU members who have not renewed their registration will no longer be paramedics, so it would be a misnomer to describe anyone who is not registered by 1 January as an ‘ADHSU paramedic’. Further those members will not be entitled to wear a uniform that suggests that they are paramedics (Health Practitioner Regulation National Law (NSW) s 113).  To say they will be ‘ready to respond’ is inconsistent with the acknowledged fact that if they are not registered, they are not legally able to respond, at least not in circumstances that suggest they are paramedics.

The HSU is betting that NSW Ambulance will bow to pressure to keep ambulances on the road, but they may call the HSU’s bluff, dismiss a large part of their workforce and then be able to offer jobs back on different working conditions.  If the paramedics have to come ‘cap in hand’ asking for their job back, it will weaken any future bargaining position. It is a big gamble as individual paramedics, rather than the HSU, have a lot to lose.

Conclusion

If paramedics don’t renew in November but do in December, then it seems the only real implication is that their registration will cost more.  If they do not renew their registration in December, they may face consequences more severe than being ‘stood down’ they may be dismissed on the basis they can no longer meet the requirements for their job. It’s a big gamble by the HSU that the government will bow to pressure rather than see it as a chance to get rid of some of the more troublesome employees.

As noted above however, I am not an expert in industrial law and the HSU lawyers may have a different take on the legal situation, but it is not explained in the FAQs. The FAQs ask ‘Will I be stood down?’.  I think a more important question, that if I was a member of the HSU I would want answered, is ‘Will I be dismissed?’

This blog is made possible with generous financial support from the Australasian College of Paramedicine, the Australian Paramedics Association (NSW), Natural Hazards Research Australia, NSW Rural Fire Service Association and the NSW SES Volunteers Association. I am responsible for the content in this post including any errors or omissions. Any opinions expressed are mine, and do not necessarily reflect the opinion or understanding of the donors.

Categories: Researchers

Do proposed changes to Commonwealth WHS laws require federal police to upskill in first aid training?

13 September, 2023 - 16:06

Today’s post is not a direct question, but a post on LinkedIN where Australian Emergency Law was mentioned. I’m not linking to the post nor identifying the author as I don’t want to promote their commercial interest in the subject area.

The topic is proposed commonwealth Industrial manslaughter laws to be introduced into the Work Health and Safety Act 2011 (Cth) by the Fair Work Legislation Amendment (Closing Loopholes) Bill 2023.  If passed, the WHS Act will have a new s 30A that says:

30A   Industrial manslaughter

(1)        A person commits an offence if:

(a)        the person is:

(i)         a person conducting a business or undertaking; or

(ii)        an officer of a person conducting a business or undertaking; and

(b)       the person has a health and safety duty; and

(c)        the person intentionally engages in conduct; and

(d)       the conduct breaches the health and safety duty; and

(e)        the conduct causes the death of an individual; and

(f)        the person was reckless, or negligent, as to whether the conduct would cause the death of an individual.

Penalty:

(a)        In the case of an offence committed by an individual—25 years imprisonment.

(b)       In the case of an offence committed by a body corporate—$18,000,000.

When conduct causes death

(2)        For the purposes of subsection (1), a person’s conduct causes a death if the conduct substantially contributes to the death.…

This adds a new offence to the Act. There are already three offences –

  • Failure to comply with an OHS duty (Category 3 offence) (s 33);
  • Failure to comply with OHS duty exposing a person to a risk of death or serious injury (Category 2 offence) (s 32) and
  • Recklessly exposing a person to risk of death or serious injury (Category 1 offence) (s 31).

The maximum penalty for a Category 1 offence for an individual is a fine of $600 000 or 5 years imprisonment or both. For a corporation the maximum penalty is a fine of $3 000 000.

The post that asked for my attention referred to an article published in the Australian that I cannot access behind their paywall but the URL is https://www.theaustralian.com.au/nation/politics/manslaughter-laws-for-federal-public-servants/news-story/50b3dcae38569b3342203c0ed135cf59. The author of the post says:

Under these federal manslaughter laws, Australian Federal departments/agencies and even the military Heads of Department (or more than likely subordinates at some senior level) can be held personally accountable should a death occur due to failures in WHS legislative requirements to protect employees.

What does this mean??? Whilst the article refers to labour type industries, it opens senior commanders/managers within Federal Law Enforcement at a minimum as I understand it, to ensure their personnel are equipped and trained or have suitable controls in place to mitigate the workplace hazard/risk to ALARP.

So……. As we have been saying for 3 years …, how can you issue a police officer a firearm or send them to high-risk situations yet only provide a not fit-for-purpose AQF first aid course and no immediate first aid kit (IFAK) ‘individually’ to mitigate the risk of that firearm being used on an offender or even accidentally through negligent discharge???

Australian Federal Police Australian Border Force commanders take heed, I would believe you are on notice without the funding to support the upskills in training. …

If you are in Public Safety management or Emergency Law I’m keen to hear your thoughts??

The answer is that the industrial manslaughter laws add a new level of offence but the idea that PCBUs and officers of PCBUs can be held ‘personally accountable’ is nothing new.

But the Act does not say an offence is committed ‘should a death occur’. The duty under WHS law is to take reasonable steps to reduce the risk to workers. What is reasonably practicable requires consideration of  

(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.

There are many ways to reduce risk but not all are practicable.  Police could ‘mitigate the risk of that firearm being used on an offender or even accidentally through negligent discharge’ by not equipping police with firearms at all and not sending them into high risk areas. That would reduce the risk of people getting shot by police but would not be practicable and would increase other risks.

There are costs and benefits of every action. Increase training for police and more kit to carry comes at a cost and it has to be asked ‘what will it add?’ If the concern is for offenders who might be shot, the police are unlikely to owe a WHS duty to them given that they are given firearms for the very purpose of, if necessary, shooting offenders.  The firearm is itself a risk management tool where the risk is a risk to life of the officer or others posed by the alleged offender.  And in most cases where these events are happening police will be backed up by paramedics so what real value would extra kit and training provide?

To be guilty of this offence the officer (as the term is used in the WHS Act, not a police officer) would have to ‘intentionally engage in conduct’ that is a breach of an WHS duty and that causes a death.  If police have done risk assessments and engaged in consultation with their workers to determine the on balance best response to the risk of shooting someone then they may have met their duty even if someone else thinks they should have come to a different conclusion. One could insist that all police train as paramedics but no-one would think that was a serious option, so equally it may not, for many reasons, be a reasonable option to train police beyond a standard first aid course which is meant to provide basic life support skills pending the arrival of medical care.  And it may be that this training is not needed because the police concern in a ‘high risk’ environment is to try and secure the situation from the threat posed by the alleged offender not necessarily protect the offender from police.

I cannot see that the new laws would make any difference to Australian Federal Police and Australian Border Force commanders. If Australian Federal Police and Australian Border Force commanders could be liable under the new laws because of the state of training, they could also be liable under the old laws but no-one has been prosecuted in the circumstances described.  And just because a company that sells ‘immediate first aid kits’ and higher level training thinks the AFP and ABF should buy their product does not mean they should.

Industrial manslaughter laws have been around in some states for some time. The first individual prosecuted in Queensland ran his own business so was the PCBU. He used a forklift without a licence, to lift a load that exceeded the forklift’s capacity. The load fell on a worker, killing him. This sort of deliberate conduct is quite different to a decision made about the type of equipment to issue workers particularly if the PCBU can point to processes that are in place to identify and manage risk.  Even if there is still a residual risk, it does not mean that WHS duties have not been met.

Conclusion

The industrial manslaughter does not create a new situation of personal responsibility. It adds a higher-level offence – above the Category 1, 2 and 3 offences already in the Act. For all of those offences a PCBU and an officer of a PCBU can be personally liable for failure to meet their OHS duties.  But meeting an OHS duty is not proved just because there is some harm or injury (see Kirk v Industrial Relations Commission of New South Wales [2010] HCA 1).  If issuing ‘a police officer a firearm or send[ing] them to high-risk situations yet only provide a not fit-for-purpose AQF first aid course and no immediate first aid kit (IFAK) … to mitigate the risk of that firearm being used on an offender or even accidentally through negligent discharge’ is a breach of an WHS duty then it’s a breach now. And if it’s not a breach now, it won’t be a breach if these new laws come into force. The new offence won’t change what are WHS duties, how those duties are to be met or the fact that an officer of a PCBU could be personally liable for a breach of those duties.

This blog is made possible with generous financial support from the Australasian College of Paramedicine, the Australian Paramedics Association (NSW), Natural Hazards Research Australia, NSW Rural Fire Service Association and the NSW SES Volunteers Association. I am responsible for the content in this post including any errors or omissions. Any opinions expressed are mine, and do not necessarily reflect the opinion or understanding of the donors.

Categories: Researchers

Unacceptable flood risk

13 September, 2023 - 14:51

In my post Is this a trend? (September 18, 2022) I asked whether the number of cases where development proposals were rejected due to flood risk was evidence of a new trend?  I still don’t have an answer to that question but I see that the issue arose again in Bhavsar v Blacktown City Council [2023] NSWLEC 1487. In this case Commissioner Bish had to consider an appeal by developer against the Council’s decision to reject the application to build a place of worship on flood prone land. At [53] the Commissioner said:

Council, and their expert Mr Almoil contend that the site is unsuitable as a place of worship, due to the potential risk to human life during a flood event. The increase in number of persons on the site, and their ability to evacuate safely and in a timely manner is considered unacceptable.

The applicant relied on a flood emergency response plan. This assumes worshippers would evacuate or shelter in place during any flood event. The council argued shelter in place was not an reasonable option as ‘flooding of the Hawkesbury-Nepean River … could last days to weeks’. As for evacuation the plan depended on a road that had not yet been built ([56]) and the current road could become impassable at 1 in 20 to 1 in 10 year flood events (ie events at 5-10% Annual Exceedance Probability ([59]).

At [60]-[63] Commissioner Bish said:

Based on my consideration of the evidence, I am not satisfied the application has sufficiently considered or addressed the risk to life in the event of a flood. The proposed immediate evacuation route is via Carnarvon Road, which becomes impassable in a relatively short time from the alert. It is proposed that up to 60 persons could be on the site … requiring a substantial number of cars to leave in a relatively short time frame. If flood warnings issued by the Bureau of Meteorology and State Emergency Services are not closely monitored, people on the site may miss their window of opportunity to safely leave. This raises the possibility that people will take unnecessary risks, particularly those that are unfamiliar with the dangers of driving through flooded waters or unwilling to shelter in place.

It cannot be certain that a flood event will occur at a time when worshippers are not otherwise occupied and attentive to the risk. The flooding at the low point of Carnarvon Road or Grange Road is not visible from the site, and therefore people will not necessarily know it is unsafe to evacuate. Persons on the site would not be able to distinguish a local from a regional flood event, and therefore may risk leaving the site when it is unsafe so as not to be trapped for an extended period.

… The proposed use of the land as a place of worship has not been demonstrated to minimise the risk to persons and safe evacuation/occupation has not been demonstrated.

In this instance, the reliance on a private evacuation plan is not consistent with the FDM [NSW Floodplain Development Manual, 2005]. There is potential for the plan to fail due to an assumption that people can distinguish between flood events and respond accordingly.

The development application was refused.

Discussion

I’m not a land use planner nor a flood engineer; but it seems to me perverse that a developer would want to have a building like a place of worship, or a child care centre (see Another development rejected due to flood risk (September 28, 2022)) and rely on an emergency response plan that the developers have written but which the occupiers will have to read, understand, and respond to and also assume that other agencies, such as the BoM and the SES will be able to issue timely warnings that will be received. That does not sound like an example of shared responsibility as it places too much burden on others to meet the developer’s objectives (but see Building risk (June 4, 2022)).  The developer builds the risk but leaves it to others to manage.

This blog is made possible with generous financial support from the Australasian College of Paramedicine, the Australian Paramedics Association (NSW), Natural Hazards Research Australia, NSW Rural Fire Service Association and the NSW SES Volunteers Association. I am responsible for the content in this post including any errors or omissions. Any opinions expressed are mine, and do not necessarily reflect the opinion or understanding of the donors.

Categories: Researchers

RFS Operational officer deemed firefighter

12 September, 2023 - 16:20

In my post Death benefits are the same for employed and volunteer firefighters in NSW (September 30, 2022) I said:

The Workers Compensation Act 1987 (NSW) has been constantly amended but the amendments do not always apply to all workers. In particular police, firefighters and paramedics have been exempt from changes made in 2012 and 2015 (at least). That means there are multiple versions of the Act in force at the same time. Trying to chase down every amendment and which one applies (or doesn’t) is a convoluted and complex problem…

The 2015 changes to workers compensation law were designed to make workers compensation less generous – less compensatory – and harder to get. Due to political pressure, police, firefighters and paramedics were exempted from those changes but that has led to litigation where people want to argue that they are or should be classed as a police officer, firefighter or paramedic in order to get the more generous benefits.  See:

The issue arose again in the case of Birkinhead v NSW Rural Fire Service [2023] NSWPIC 419. Ms Birkenhead was employed by the Rural Fire Service as an operational officer. She began her RFS career as a volunteer firefighter in 2007 before being employed in 2017. Her employed role involved planning and managing the response to fires including significant deployments during the 2019-2020 summer bushfires. It was an essential requirement for her role that she hold the RFS qualification as an Advanced Firefighter ([38]). (She had also received training as crew leader community facilitator, planner and prescribed burn supervisor ([15])). 

The workers compensation insurer accepted that she suffered a psychological injury ‘caused by trauma associated with working in the office, including receiving 000 calls, heavy workload, dealing with the community affected by the fires and reviewing footage of an aircraft crash in which three of her colleagues were killed’ ([5]). After 26 weeks the insurer sought to decrease her weekly benefits in accordance with the 2012 amendments to workers compensation. The applicant argued that although she did not have to actually face the fire, she was a firefighter for the proposes of the Act and exempt from the effect of the 2012 changes.

The problem for the court (and earlier courts) was trying to define a person’s employment. In earlier cases involving paramedics their employment status as ‘’paramedics’ could readily be determined by the awards to which their employment were subject’ ([77]) but no statutory definition of ‘firefighter’ exists ([80]). The presiding member of the Personal Injuries Commission, Member Homan, said (at [83]-[84]:

In the absence of an award or applicable statutory definition, in order to determine whether a worker is designated as a ‘firefighter’ or falls within the class of workers who are firefighters it is necessary to determine whether the applicant’s activity or employment was to extinguish fires.

Even if I find the applicant is not designated or classified as a firefighter, the case law leaves open the possibility that she may yet have been a ‘firefighter’ at times when she was performing the duties of a ‘firefighter’.

Member Homan determined (at [89]) ‘that the applicant’s designated role was not that of a ‘firefighter’’; but that was not the end of the matter. Member Homan then proceeded to consider the actual tasks Ms Birkinhead was required to perform. The RFS (at [98]):

… defines firefighting duties as including an act “at or about the scene of or in connection with a fire which is necessary or, directed towards, or incidental to, the control or suppression of the fire or the prevention of the spread of the fire or any other way necessarily associated with the fire” (emphasis added). This included “…[o]ffice duty performed directly in connection with the organisation and direction of the firefighting effort”.

  At [100] Member Homan said:

The applicant’s evidence is that during the 2019/20 Northern and Southern NSW fires she was performing office-based duties including taking 000 calls, doing intelligence work, preparing situation reports and planning where the fires might spread. I find that this work was:

(a)    in connection with a fire;

(b)    directed towards or incidental to the control, suppression or spread of a fire, and

(c)    performed directly in connection with the organisation and direction of the firefighting effort.

And at [102]:

Although the applicant in this case was not physically at a fire front, she performed work in connection with a fire front which was directed towards or incidental to the control, suppression or spread of the fire. … I find that whilst performing these duties the applicant was a ‘firefighter’.

Discussion

I have not set out the details of Ms Birkinhead’s work but clearly she, like many others involved in the 2019-2020 fires was subject to immense workloads and traumatic experiences including receiving triple zero calls from people under immediate threat and perhaps from people who died. I am pleased she was found to be a firefighter and therefore eligible to more generous benefits.

But it may be prudent for governments to have a workers compensation scheme that actually compensates injured workers rather than the current scheme that is intended to be hard to access and to under-compensate injured workers.  Carve outs for workers who managed to bring political pressure (remember fire brigade vehicles blockading outside state parliament – ‘On strike: In Australia, New South Wales firefighters & medic refused to respond for five hours. Fire trucks massed at State ParliamentSTATter 911 (June 21, 2012)) may provide some relief for firefighters, paramedics and police but has led to this type of litigation and still leaves a complex and unfair workers compensation scheme.

This blog is made possible with generous financial support from the Australasian College of Paramedicine, the Australian Paramedics Association (NSW), Natural Hazards Research Australia, NSW Rural Fire Service Association and the NSW SES Volunteers Association. I am responsible for the content in this post including any errors or omissions. Any opinions expressed are mine, and do not necessarily reflect the opinion or understanding of the donors.

Categories: Researchers

Vicarious liability v Professional Indemnity Insurance

12 September, 2023 - 15:06

I’m catching up on some posts that have taken too long to get to, and I apologise for that. The first comes from a correspondent who asks about the link cross-over between a paramedic’s professional indemnity insurance and an employer’s vicarious liability. Their question:

… comes after a recent “clinical update” from a jurisdictional ambulance service (JAS) to all staff, which reads as the following: 

Authority to practice reminder
What you need to know: Authority to practice independently is set out as per the Clinical Practice Guidelines – Clinical Resources website/app. *Employer* provides professional indemnity insurance (PII) in relation to the provision of clinical care; this cover is based on the requirement that clinicians providing care act reasonably and in accordance/intent of the clinical practice guidelines as per their relevant scope of practice. 

My question is related to the issue of Professional Indemnity Insurance (PII) and vicarious liability – and if they are separate in the case of registration requirements.  

Many of us working for a JAS rely on the PII from our employer to fulfil the requirements of our responsibilities under registration. From my understanding of Vicarious Liability, an employer cannot just “wash their hands” of a clinician solely because they stepped outside their assigned “authority to practice”. However, if the employer states that their PII will not cover such acts, does that become a separate issue regarding registration responsibilities? 

To illustrate my question, suppose a paramedic has recently completed training on a procedure (let’s say needle thoracocentesis in a tension pneumothorax), has been signed off by the training provider and believes they are competent. They now have a patient in front of them they believe requires this skill immediately to prevent harm (death). No one else can perform the skill in a reasonable amount of time and the equipment is available to the paramedic. However, it is outside of their JAS assigned “Scope of Practice”. Surely, they would be professionally and morally bound to act to help the patient.

My questions then are: 

  • Am I correct in assuming that the JAS cannot avoid all liability by claiming any harm results from a clinician (who is acting in good faith) steps outside their allocated “Scope of Practice”?
  • And in the above hypothetical situation, would the paramedic be breaching their PII requirements if the JAS has stated they will not cover this (even if they would be vicariously liable) and the paramedic has no other PII arrangements outside of this? 

The Professional indemnity insurance arrangements registration standard (17 May 2018) says (relevantly):

(1) When you practise as a paramedic, you must be covered by your own or third-party PII arrangements that meet this standard:

(a) for all aspects of your practice …

(2) Your PII cover must include:

(a) civil liability cover

(b) appropriate retroactive cover for otherwise uncovered matters arising from prior practice, and

(c) automatic reinstatement, or an equivalent approach which ensures that the amount of cover will not be exhausted by a single claim.

and

6.    If your PII cover is provided by your employer, and you intend to practise outside your stated employment, you must have individual PII arrangements in place to cover that practice. …

It’s interesting that the JAS says they provide ‘professional indemnity insurance’.  As suggested by my correspondent the employer is vicariously liable for any negligence by an employee. The employer’s insurance will cover civil liability cover and cover for whenever the paramedic was employed by them. If they are a government ambulance service, they will be covered by the governments (usually) self-insurance arrangements that are ultimately unlimited.  The relevant self-insurance scheme will also meet any professional liability of an employee.  So they say they offer ‘professional indemnity’ but it’s equally accurate – probably more accurate – to say they are vicariously liable and the terms of that liability will be sufficient to meet the PII standard.

Liability only applies where there is negligence ie a failure to provide reasonable care where that causes injury loss or damage.  A paramedic may provide a ‘needle thoracocentesis’ but that will not necessarily lead to liability. It may have been a reasonable response in all the circumstances ie the ‘paramedic has recently completed training on [the] procedure’, the patient ‘requires this skill immediately to prevent harm (death). No one else can perform the skill in a reasonable amount of time and the equipment is available to the paramedic’.  I have argued elsewhere that I don’t think not acting on the basis that ‘my employer instructed me that it would prefer the patient to die than to try my best’ would meet the ‘reasonable person’ test.  So if the action was a reasonable response in all the circumstances, there is no liability even if the action was outside the ‘authority to practice’.

Second for liability there must be damage. There must be proof that applying the procedure made the situation worse. That it didn’t make it better would not be damage, it must make the situation worse. If you save the patient’s life, or the outcome is the same, then there is not liability even if the action was outside the ‘authority to practice’.

Vicarious liability extends to do authorised acts in unauthorised ways, and a paramedic is employed to render emergency and at times lifesaving care to their patients.  They are expected to use their professional judgement and recognise that not every case presents as a text-book and judgement is called for (Queensland v Masson [2020] HCA 28).

What avoids vicarious liability is when an employee can be described as being on a ‘frolic of their own’.  If you are operating a private first aid business that is clearly not doing the work of the ambulance service and they will not be liable for any negligence. If as a side hussle you are working for uber eats and delivering meals in the ambulance that would also be outside any connection to your employment and vicarious liability could not apply. But where someone needs immediate health care, a triple zero call is made, so the reason the paramedic is there is because the ambulance service sent them, and they sent them to provide care for the patient, and the paramedic honestly believed in all the circumstances that this was necessary (not just convenient) and in the best interests of the patient, then even if turns out there is an adverse outcome and the paramedic’s actions made the situation worse, then the ambulance service will still be vicariously liable.

Is the paramedic acting without PII at that time?  That is a purely hypothetical question. Assume the paramedic does the thoracocentesis but no-one sues anyone.  If a complaint was made that the action was done without insurance the argument would be that they were covered by the employer’s insurance and given that has never been tested, because the issue was never tested, then you could not know the actual answer.

I suspect that if the procedure was performed and the patient was harmed then the issue before the Paramedicine Board would be whether the paramedic was guilty of some form of unsatisfactory professional conduct evidenced by their action rather than whether the employer’s insurance would have covered them if they had been sued.

And if they are sued; and the employer denies liability on the basis that the paramedic was on a ‘frolic of their own’, and they win, then we’ll know that the paramedic was practising without relevant insurance.

Conclusion

To return to the questions:

•          Am I correct in assuming that the JAS cannot avoid all liability by claiming any harm results from a clinician (who is acting in good faith) steps outside their allocated “Scope of Practice”?

That would be consistent with my understanding of the law on vicarious liability.  Consider that many schools are vicariously liable for the sexual assault of their students, and yet abusing pupils in their care is not even closely related to a teacher’s duty statement.   

If the paramedic put together a kit to do a procedure that was not authorised and carried it to work each day clearing planning to do that procedure whenever they felt it was appropriate, then one might say that this procedure was something they were doing as their own practice – a frolic of their own. But that was not the situation described here. In the situation described here the paramedic is doing fundamentally what they are there to do which is provide health care in the best interests of the patient and that involves exercising clinical judgment where life or death may depend on their judgment.

•          And in the above hypothetical situation, would the paramedic be breaching their PII requirements if the JAS has stated they will not cover this (even if they would be vicariously liable) and the paramedic has no other PII arrangements outside of this?

Again, I cannot see that as the relevant issue in the circumstances described.  If the JAS is vicariously liable, then there is an insurer to meet the claims which is the point of the PII standard.

See also Revisiting conflict between a paramedic’s skills and an employer’s duty statement (April 26, 2021).

Remember too that PII often provides much more in particular PII (depending on the policy) may also provide assistance with representation at professional disciplinary hearings. The employer’s obligations under vicarious liability do not extend to that.

Disclaimer: Both the Australian College of Paramedicine and the Australian Paramedics Association offer PII and both are sponsors of this blog. Australian Emergency Law does not specifically recommend either policy and recommends that any paramedic considering buying PII read the policy information from both, and other PII providers, to buy the product that suits their needs.

This blog is made possible with generous financial support from the Australasian College of Paramedicine, the Australian Paramedics Association (NSW), Natural Hazards Research Australia, NSW Rural Fire Service Association and the NSW SES Volunteers Association. I am responsible for the content in this post including any errors or omissions. Any opinions expressed are mine, and do not necessarily reflect the opinion or understanding of the donors.

Categories: Researchers

‘Advancing paramedicine: Error, accountability and patient safety’

10 September, 2023 - 13:06

That’s the title of an article by Meadley et al that appears in the journal ‘Paramedicine’ (full citation below).  The article says:

An essential first step for health organisations, including those who employ paramedics, is to acknowledge that most errors are due to system breakdowns rather than individual transgressions… most errors are ‘… committed by competent and committed caregivers [which are] best dealt with by focusing on improving systems rather than people’.

From there they argue that institutions such as jurisdictional ambulance services need to be build a culture where paramedics can report patient safety incidents and near misses with confidence that the service will look to identify systems issues rather than attribute personal blame.  The authors say:

Any review of patient safety incidents should be underpinned by key patient safety concepts such as ‘systems thinking’ and an open ‘just’ culture. A mature review process must also be fair, focusing on systems and not individuals, and provide support to both staff and patients involved. Furthermore, the analysis of any event should focus on ‘what happened?’, ‘why did it happen?’ and ‘how could it be prevented from occurring again?’…

Central to this work is a patient safety incident management system that is non-punitive and, as such, moves away from a ‘culture of blame’ allowing a culture of self-reporting to thrive.

Not surprisingly these demands to move away from the blame culture are not new and have been led by authors such as James Reason (see for example The Human Contribution: Unsafe Acts, Accidents and Heroic Recoveries (2008, Routledge)) and Sidney Dekker (see for example Just Culture: Balancing Safety and Accountability (2nd ed 2012, Routledge) and The Field Guide to Understanding ‘Human Error’ (3rd ed, 2014, Routledge)).  Attempts to move away from blame culture have been developed in medicine with the ‘open disclosure’ approach to patient safety incidents (see Australian Commission on Safety and Quality in Health Care, Open Disclosure, https://www.safetyandquality.gov.au/our-work/clinical-governance/open-disclosure).

Professor Steve Dovers and I also did work on the need to move away from a blame culture when reviewing the response to disasters – see:

Given my own work it is no surprise that I find the work of Meadley et al persuasive.

The problem, as I see it, is that the paramedic regulator – the Paramedicine Board – has limited ability to also support a ‘just culture’. The regulation of health practitioners is meant to be protective rather than punitive, but it is limited to health practitioners not health services. The Paramedicine Board can consider whether a practitioner’s conduct meets expected standards and can impose conditions on a practitioner’s registration. The Board (and the relevant Tribunal in more serious cases) cannot make similar orders on the institution in which the individual paramedic or health practitioner had to work.

To be fair, the tests for professional performance under the Health Practitioner Regulation National law require a paramedic’s conduct to be assessed against what could or should be expected by a similar practitioner in the same circumstances which should include the same institutional circumstances, but a Committee or Tribunal will have limited ability to explore how institutional failures and more importantly institutional culture contributed to an incident that manifests as a failure in delivery of appropriate care to a single patient.

The consequences of something other than a ‘just culture’ can be devastating for both the patient and practitioner – see:

That is not to say there are no quality assurance mechanisms applied to health care institutions including through accreditation and licensing.  People can complain to health complaints bodies – such as the Health Care Complaints Commission in NSW or the Health Ombudsman in Queensland – about the service provided by organisations as well as by practitioners.

Even so it remains the case that regulation remains focussed on the practitioner level. True learning will only come when organisations reviewing patient safety standards can look with equal focus at both the institutional and individual performance.  These are issues that the Paramedic Observer, Ray Bange has written on – see Holding ambulance services, and their managers to account (October 12, 2022).

Conclusion

Meadley et al’s argument makes a useful contribution to the broader ‘just cause’ literature and one can hope that it is something organisations and health complaints bodies are already thinking about. There is still a long way to go however before regulators can, and the community will accept that when something goes wrong, someone must be to blame and someone must be held account.

Full citation:

Meadley B, Humar M, Salathiel R, McManamny T. Advancing paramedicine: Error, accountability and patient safety. Paramedicine. 2023;0(0). https://journals.sagepub.com/doi/10.1177/27536386231189006

Disclosure:

I am an associate editor for the journal Paramedicine. I did not review or contribute to this article before publication.

This blog is made possible with generous financial support from the Australasian College of Paramedicine, the Australian Paramedics Association (NSW), Natural Hazards Research Australia, NSW Rural Fire Service Association and the NSW SES Volunteers Association. I am responsible for the content in this post including any errors or omissions. Any opinions expressed are mine, and do not necessarily reflect the opinion or understanding of the donors.

Categories: Researchers

‘Driver of firetruck who smashed into a tram has been found not guilty’

8 September, 2023 - 18:15

A number of people have asked me to comment on this story from 7 News:

‘Driver of firetruck who smashed into a tram has been found not guilty’ (6 September) https://www.facebook.com/watch/?v=1524638434947107&extid=CL-UNK-UNK-UNK-AN_GK0T-GK1C&mibextid=2Rb1fB&ref=sharing.

In the absence of any written reasons from the Magistrate (and see Accessing a judge or magistrate’s reasons for decision (November 18, 2016)) I cannot know what evidence was before her or the legal arguments so it is impossible for me to make any useful comment.

This blog is made possible with generous financial support from the Australasian College of Paramedicine, the Australian Paramedics Association (NSW), Natural Hazards Research Australia, NSW Rural Fire Service Association and the NSW SES Volunteers Association. I am responsible for the content in this post including any errors or omissions. Any opinions expressed are mine, and do not necessarily reflect the opinion or understanding of the donors.

Categories: Researchers

Paramedic called out during time for equipment checks

2 September, 2023 - 17:08

Today’s question revisits the issue of going to work as a paramedic without the necessary equipment and in particular, drugs – see

Today’s correspondent says:

Recently NSW Ambulance has sent emails to staff regarding signing onto the Mobile Data Terminal [MDT] at the start of shift so as to display an available resource to the dispatcher in the control centre. The shifts start at 45mins past the hour and we are expected to sign on within 3 mins post this time. Between the 45 minute and hour mark, it is expected we check the ambulance in its entirety, stock the car with our personal belongings and PPE and sign out scheduled medications to the car. NSW Ambulance calls these checks ‘Mandatory checks’. Email from management sent in various forms to all Metro sectors says:

“Following recent significant adverse event investigations, it has shown that failure to sign on was a key contributing factor to a negative patient outcome.

Please allow me to assure you, our dispatchers will always do their best to observe the 15 min mandatory check time and will only task you to a priority case if deemed necessary. If you are sent out close to your finish time you are also able to request a transport car to assist with transport to hospital to reduce your end of shift overtime.

If you do get assigned a job within the 15-minute window, and your checks are not complete or you don’t have your medications yet, please respectfully notify the dispatcher of such and ask how they would like you to proceed. Remember, the dispatcher can see what other resources are available in the area and can then make an informed decision as to whether they will utilise a crew with an unchecked/unstocked vehicle or another crew near to the incident.

Please note, there is no expectation to attend your shift before your start time to check your cars, the expectation IS that we sign on at our rostered start time and checks are completed in the first 15 minutes unless the aforementioned occurs…

The question is, what would be the consequences on personal registration when responding to a job without completing these mandatory checks there was a negative patient outcome such as death or disability caused by a faulty, missing or non-operational piece of equipment or drug?

On the Facebook version of the post Paramedic sent to work without required drugs (August 13, 2023) I was asked “Would this apply to a scenario where an ambulance is responded at the start of shift, without s4/s8 medications signed out/equipment checked.” My response was:

As I like to say, “context is everything”. It could apply; I think most paramedics would think it was ‘unsatisfactory professional performance’ not to check equipment and sign out restricted drugs before the first job of the shift.

But sometimes there may be an emergency – eg bus crash 50m from the station – and the paramedics would have to ask “if we get the drugs we’ll be delayed 5 minutes which could mean the difference between life and death; but equally the absence of the drugs could mean the difference between life and death; but if we get there first we can start and we’ll be backed up by others with drugs so on balance what’s the best option in this extraordinary circumstance – what would ‘a health practitioner of an equivalent level of training or experience’ do? In those circumstances however the issue will simply never arise as I don’t see how anyone would complain and the paramedics who do arrive can start doing the scene assessment, triage etc before other crews arrive.

The real issue is not the one-off emergency but if it becomes a practice, if there is constant pressure to turn out to a ‘regular’ sort of 000 call ‘without s4/s8 medications signed out/equipment checked’ because if there is that suggests that the workload is not being properly managed. Paramedics have to have time at the start of their shift to make sure they’re ready to go before being tasked. If they don’t that’s a WHS, Industrial and professional issue and at same point the reasonable paramedic says ‘I’m not going out until I’m satisfied that we are good to go and if I don’t do that I cannot ensure my patients receive good paramedic care’.

That really answers the question but I want to take some time (and some of your time if you continue reading) to try and make my thinking more explicit.

First, I think everyone would agree that a paramedic who refused to check equipment before proceeding on shift would be guilty of at least ‘unsatisfactory professional performance’ that is (Health Practitioner Regulation National Law (Qld) s 5):

… the knowledge, skill or judgment possessed, or care exercised by, the practitioner in the practice of the health profession in which the practitioner is registered is below the standard reasonably expected of a health practitioner of an equivalent level of training or experience.

Notwithstanding that this is meant to be a national scheme. That definition does not apply in NSW.  In NSW the relevant definition is the definition of ‘unsatisfactory professional conduct’ (Health Practitioner Regulation National Law (NSW) s 139B) that includes

Conduct that demonstrates the knowledge, skill or judgment possessed, or care exercised, by the practitioner in the practice of the practitioner’s profession is significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience.

I would hope, regardless of the jurisdiction, that everyone would agree that a paramedic who routinely fails to check their equipment to make sure everything is stocked, working, in-date and ready to go is performing below the standard reasonably expected of a paramedic practitioner.

Another extreme is the performance of the employer. A paramedic may seek work at an event health service provider. On arriving at work the paramedic sees the vehicles provided are old, inadequately maintained, and unclean; perhaps even unroadworthy. There is equipment missing and equipment is broken. Drugs are not secured or accounted for.  Perhaps the company is claiming to provide a level of service that it is clearly incapable of providing.  Perhaps the company is giving directions to staff that are inconsistent with good paramedic practice – eg ‘don’t administer the methoxyflurane to patients at this event, we’re only 10 minutes to the hospital they can put up with the pain for that long and it’ll save us money’.  I would think a registered health professional would recognise that to work for that company is to fail to behave at the standard expected of a registered paramedic. That would be true for any paramedic involved in the management of the company but also for an employee who must, at some point, say ‘I’m not prepared to work for this unprofessional outfit’.

Move from those extreme cases (which I put up to hopefully make the point that it could be unprofessional to go to work without checking and having the minimal level of equipment) to somewhere in the middle. There will be times when a paramedic will want to treat a person knowing they don’t have the ideal equipment. The off-duty paramedic only has their commercial first aid kit. A paramedic returning to station at the end of the shift may well know that much of what is in the ambulance is depleted but I think it would be ‘unsatisfactory professional performance’ for that paramedic to refuse to assist at a car accident that they come across because they haven’t yet restocked the ambulance from the last job. They get out and do what they can and if they don’t have what they ideally would have, the use what they have got. To go back to my example from my Facebook comment, they are at the ambulance station, and someone comes in and says ‘someone’s collapsed outside’ I don’t think (or at least I hope) ‘a practitioner of an equivalent level of training or experience’ would go to see what they could do, not say “I’ll be there in 10 minutes after I’ve finished checking this equipment”.

The practice of paramedicine is not just hands on patient care. As the Paramedicine Board says that, at least for the Professional Indemnity Insurance standard, means:

Practice for the purposes of the standard is any role, whether remunerated or not, in which an individual uses their skills and knowledge as a health practitioner in their profession. It 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.

Paramedics in the coordination centre and ambulance management are also practicing the profession of paramedicine. They are making decisions about the allocation of resources both generally and in response to specific incidents. As the memo from NSW Ambulance says:

… the dispatcher can see what other resources are available in the area and can then make an informed decision as to whether they will utilise a crew with an unchecked/unstocked vehicle or another crew near to the incident.  

The dispatcher also has information as to the triaged priority of the calls received. He or she has to make a professional decision as to the allocation of resources recognising the need to balance the speed of the response with the effectiveness of the response.  In some circumstances the dispatcher, knowing that mandatory checks have not been completed, will reasonably determine that it is still better to send the crew to start care because that is better than the alternative of nothing. But sometimes it will be better to let the crew complete their checks and the response can wait a few minutes.

The real issue is if the situation moves closer to one of my extremes. If for example paramedics are regularly called on during the time that they are meant to be doing their mandatory checks and for cases that are not life threatening or where there were other resources that could have responded in a timely manner.  If a particular dispatcher always calls paramedics on during that time without following any procedure or giving thought to whether the response can be held back may be acting unprofessionally.  I would think (or hope) that a paramedic called on for a priority 3 case would say ‘no, I’m going to finish these checks first so if you divert me to a P1 case, I know I’m ready to go’.

The question paramedics need to answer is ‘what would they expect both from paramedic dispatchers and on-road paramedics?’ I would think (or at least hope) that the on-road paramedic who finds the are called early nearly every shift would identify that there was an issue and the appropriate professional response is to record it and raise it – whether you call that a professional issue, a WHS issue or an industrial issue – doesn’t really matter. 

Assume a complaint is lodged – “I called for an ambulance and when they go there they said they did not have the equipment they needed and my partner received sub-standard care”.  In NSW they complain to the Health Care Complaints Commission that looks for a response from both the Ambulance service and the paramedics.  If the ambulance service can show this was a rare occurrence, where time was given the priority, that the paramedics were backed up with another crew etc then it’s probably all good.  If, on the other hand, the paramedics says ‘this happens all the time, the arrangements to start the shift are inadequate’ etc then the question I would ask is ‘and what did you do about it?’  The individual paramedic cannot fix the ambulance service’s problems but if they are not being reported then the management may not know about them. So you report them, you move it up the chain of command, you take it up with your WHS consultation group etc.  But if you do nothing, then (and it is up to the paramedics to answer this question) would that be ‘Conduct … below the standard reasonably expected of a practitioner of an equivalent level of training or experience’?  If the answer is ‘yes’, then it could have professional implications.

Conclusion

The question was ‘what [c]ould be the consequences on personal registration when responding to a job without completing these mandatory checks [if] there was a negative patient outcome such as death or disability caused by a faulty, missing or non-operational piece of equipment or drug?’

My answer is that it depends on all the circumstances including how the judgement was made to dispatch the ambulance, how often this is occurring and what would paramedics expect of another paramedic in the circumstances. Sometimes going is going to be the clearly right thing to do; sometimes it will be clearly the wrong thing to do. Most times it will be somewhere in the middle and it depends on the professionalism of everyone involved from the managers that write the sort of email quoted above, to the dispatchers and to the paramedics on the station. Provided everyone acts at the professional ‘standard reasonably expected of a practitioner of an equivalent level of training or experience’ then there will be no issue.

This blog is made possible with generous financial support from the Australasian College of Paramedicine, the Australian Paramedics Association (NSW), Natural Hazards Research Australia, NSW Rural Fire Service Association and the NSW SES Volunteers Association. I am responsible for the content in this post including any errors or omissions. Any opinions expressed are mine, and do not necessarily reflect the opinion or understanding of the donors.

Categories: Researchers

Publication on detaining patients in the ED

29 August, 2023 - 11:06

I previously wrote about a case from WA that caused concern amongst WA medical, nursing and security practitioners – see No power to detain a patient just because it’s good for them (January 22, 2023) and “Medical law expert issues warning to WA hospital staff over patients who want to leave” (June 22, 2023).

Because of the interest in this case I was approached by colleagues from QUT and the Australian College of Emergency Medicine to write an article to guide decision makers in these difficult situations. The article has now been published and with support from the University of Melbourne is available as a free access article. The citation and link are:

Kelly, A.-M., Eburn, M., Cockburn, T. and Senthi, A. (2023), Review article: Detaining patients against their will: Can duty of care be used to justify detention and restraint in emergency departments?. Emergency Medicine Australasia. https://doi.org/10.1111/1742-6723.14299

This blog is made possible with generous financial support from the Australasian College of Paramedicine, the Australian Paramedics Association (NSW), Natural Hazards Research Australia, NSW Rural Fire Service Association and the NSW SES Volunteers Association. I am responsible for the content in this post including any errors or omissions. Any opinions expressed are mine, and do not necessarily reflect the opinion or understanding of the donors.

Categories: Researchers

Workplace medic and record keeping – West Australia

27 August, 2023 - 12:37

Today’s correspondent works:

… as a medic (Not AHPRA registered) for a mining company in Western Australia.  As a part of our daily process, we drug test a percentage of workforce. This is a system generated process and is random in selection.

Medical staff have been completing a ‘Test Request Form/Chain of Custody form’ that they collect personal information such as name, date of birth and record the result of the urine test.  If this test result is negative the form is scanned or retained in paper form as well as being entered into a spreadsheet.

The issue being debated is the retention of this information. Do we need to retain the paper copies for a certain period?  I have researched WA Legislation and Regulations and found there is nothing that refers to retainment of any information for a private medical practice unlike other states/territories. So my questions are these:

1)         Is there legislation that I am missing that states we must retain this data for a certain period of time?

2)         If there is a requirement, is a randomised drug screen considered to be ‘medical’ in nature or more a health and safety process?

The company has stated that we are not required to complete the forms as they are used for non-negative testing however there are many medics who disagree and believe that we should be capturing and retaining this data.

Not really an ‘emergency’ question but given the correspondent is a ‘medic’ I’ll have a go.

Keeping records

I’m not going to track down all the rules on medical records suffice to say the Office of the Australian Information Commissioner says (https://www.oaic.gov.au/privacy/your-privacy-rights/health-information/access-your-health-information):

Whether a doctor is required to retain patient records depends on the law in the relevant state or territory. For example, in the ACT, NSW and Victoria, privacy law requires a health service provider to keep records for 7 years or, in the case of a child, until the child turns 25. For more information about state and territory privacy laws, see Privacy in Your State.

The West Australia Primary Health Alliance’s Retention and Destruction of Medical Records (Fact Sheet v2, November 2020) says:

General practices must securely store medical records until they are no longer practically or legally needed and have been destroyed or permanently de-identified in a manner that maintains patient confidentiality. 

There is currently no legislation in Western Australia mandating the retention or destruction of private medical practice health information. 

However, the RACGP recommendations are in line with legislation in Victoria, New South Wales and the Australian Capital Territory, which requires medical records to be retained for:

• children until the child turns 25

• adults for seven years from the date of the provision of the last health service.

The reason 7 years is often selected is because the normal limitation period for bringing a legal action is 6 years and that period begins to run from when the claimant first becomes aware of the facts giving rise to a claim or the person turns 18. This situation is somewhat more complex in WA – the Limitation Act 2005 (WA) sets a three-year limitation for personal injuries claims but six years for other claims (ss 13 and 14) and subject to exceptions, where the person was under the age of 18 the limitation period ends when they turn 21 (ss 31-33).  Limitation periods do not commence until the person had the facts available to determine that they have a cause of action (ss 55-56).

These drug tests are tests of employee so I think an employer should also be guided by the need to keep employee records. In WA ‘Employers must keep all employment records for at least seven years after they are made for both current and past employees’ (Department of Commerce, Employment Record Keeping Obligations: Fact sheet for small business employers in the state system; https://www.commerce.wa.gov.au/sites/default/files/atoms/files/record_keeping_obligations_fact_sheet.pdf; Industrial Relations Act 1979 (WA) s 49D and for employees outside the state system see Fair Work Act 2009 (Cth) s 535, although the sort of records being discussed here are not the sort of record that is in the list of required records: Industrial Relations Act 1979 (WA) s 49D; Fair Work Regulations 2009 (Cth) r 3.32; see also Fair Work Commission Record Keeping https://www.fairwork.gov.au/pay-and-wages/paying-wages/record-keeping#what-records-have-to-be-kept-and-what-needs-to-be-in-them ).

Even if these are not prescribed records they should be kept as evidence should evidence be required. It may be required if a worker claims they were injured, or wants to show that they have had a clean record, or the employer wants to show that yes, they do indeed drug test their employees or for many other potential reasons. I would think any employer that has a drug testing regime would want to keep records of the tests, both positive and negative to show that they do the tests and to show that they are managing the risk. If you only keep records of positive results you would have evidence of a 100% drug affected workforce!

Originals or copies?

Another question raised is the difference between the paper copy and a scanned copy.  My correspondent says ‘the form is scanned or retained in paper form as well as being entered into a spreadsheet’ but the question asked is ‘Do we need to retain the paper copies for a certain period?’ but later they ask about retaining the ‘data’.

A scanned copy is as good (probably better) than a paper copy. The Evidence Act 1906 (WA) s 73A says:

A document that accurately reproduces the contents of another document is admissible in evidence before a court in the same circumstances, and for the same purposes, as that other document, whether or not that other document still exists.

In simple terms, if there’s a record of it happening, it happened and if there’s no record, the inference is that it did not.

That is a photocopy, or a print of a scanned document is admissible in exactly the same way the original would have been admissible. Documents in electronic form are also acceptable (Courts and Tribunals (Electronic Processes Facilitation) Act 2013 (WA) ss 9, 12 and 13).

The Evidence Act also provides for the admission of business records (s 79C) that is a document produced to accurately record information about a business is admissible. In this case the spreadsheet would be admissible to prove the contents recorded, ie that a person was tested on a given date with a negative result.

Conclusion

The answer to the question ‘Do we need to retain the paper copies for a certain period?’ is no, the scanned copies would be sufficient as would keeping the information transcribed onto the spreadsheet provided the record could be produced or reproduced as required and is legible.

Is there a period that the records must be maintained? The answer appears to be ‘no’. There is no legislation relating to medical records and these do not appear to be prescribed employment records, so it doesn’t matter whether you call the records ‘health care’ or ‘whs’ records. Good practice would say they should be maintained for at least 7 years to allow any limitation period to expire. Exactly how long they should be kept becomes an issue of risk management – assessing the potential problems if they are not kept etc.  If they are records relating to an employee, I would think there would be a good argument to keep them for 7 years after the employee leaves the workplace. On those issues however the employer should seek guidance from their lawyers and their insurers.

Remember this is not a place for legal advice and every employer would have to make their own assessment as to risk management as well as identifying the records they are required to keep under relevant industrial law and the period for which those records should be kept. 

This blog is made possible with generous financial support from the Australasian College of Paramedicine, the Australian Paramedics Association (NSW), Natural Hazards Research Australia, NSW Rural Fire Service Association and the NSW SES Volunteers Association. I am responsible for the content in this post including any errors or omissions. Any opinions expressed are mine, and do not necessarily reflect the opinion or understanding of the donors.

Categories: Researchers

NSW Ambulance pay rate for casual ICPs

25 August, 2023 - 12:54

Health Services Union NSW v Health Secretary in respect of NSW Ambulance (Casual Intensive Care Paramedics) [2023] NSWIRComm 1086 was another industrial issue involving NSW Ambulance has come before the Industrial relations commission, this time about the pay rate for casual intensive care paramedics. The issue was that the relevant award defined an Intensive Care Paramedic (at [6]) as:

… an employee who has completed the necessary and relevant training and work experience as determined by the Service to become a Paramedic Specialist – Intensive Care Paramedic and who is appointed to an approved Intensive Care Paramedic position.

The problem for casual ICPs arose if they were not assigned to an intensive care ambulance. As one witness for the HSU reported (at [15]):

… when he clocks onto a shift he does so as an ICP. If there is an available ICP vehicle, he is allocated to that vehicle. When he is on shift, the control centre is aware that he is an ICP resource and will dispatch him to jobs that look to require intensive care or an extended scope of practice. He went on to say that he feels compelled to use his ICP skills and go to the extent of his scope of practice when required. He said “I cannot unlearn ICP clinical knowledge and procedures”.

Another witness ‘also a casual ICP, similarly described the requirement to exercise his extended skills when on shift’ ([16]). 

The HSU argued that casual ICPs should be paid as ICPs regardless of the car they were assigned to. That is, ‘the phrase “and who is appointed to an approved Intensive Care Paramedic position” should be read as encompassing a paramedic performing or being ready and willing to perform the work of an ICP’ ([7]).

The problem for the Commission was that the dispute had been resolved. The Ambulance service had agreed that any current casual employee who, prior to moving to casual employment had been employed as a permanent ICP would continue to be paid as an ICP ([3]). That dealt with current employees. The union they sought a determination from the Commission interpreting the award for the benefit of employees who may, in the future, move to casual employment.  Commissioner Sloan said ‘The HSU is effectively asking me to address a hypothetical situation, that is, what might happen in the future when an ICP transitions from permanent to casual?’ ([12]).

The Commission has the power to interpret an award (Industrial Relations Act 1996 (NSW) s 175) but only when called upon to exercise its other powers to resolve a dispute ([9]). As this dispute was resolved, there was no power in the Commission to make a determination of how the award should be interpreted or applied in the future. Notwithstanding his concerns about the position of NSW Ambulance – ‘that is that a paramedic accepts the work that they are offered and, if that is as a general paramedic, that is the end of the story’ it was held that the Commission could not issue the determination sought by the HSU.

Comment

I have discussed before that one cannot unlearn skills nor be expected not to apply them when they are required, that is it cannot be the case that ‘a paramedic accepts the work that they are offered and, if that is as a general paramedic, that is the end of the story’. If they are an ICP and they can see that that the patient needs their advanced skills and knowledge they cannot simply pretend to not know what they know (see When is an Intensive Care Paramedic an Intensive Care Paramedic (August 26, 2019)).

Hopefully NSW Ambulance will continue to recognise that for the benefit any future casual ICP or no doubt this issue will return to the Commission.

This blog is made possible with generous financial support from the Australasian College of Paramedicine, the Australian Paramedics Association (NSW), Natural Hazards Research Australia, NSW Rural Fire Service Association and the NSW SES Volunteers Association. I am responsible for the content in this post including any errors or omissions. Any opinions expressed are mine, and do not necessarily reflect the opinion or understanding of the donors.

Categories: Researchers

NSW Patient Transport Service industrial action

23 August, 2023 - 12:20

Yesterday I reported on a decision by the NSW Industrial Relations Commission to decline some requested dispute orders to end proposed industrial action by paramedic members of the Health Services Union (see More NSW Ambulance industrial action before the Industrial Relations Commission (August 22, 2023).  In that post I quoted Commissioner O’Sullivan who reviewed the legal authorities and said ‘dispute orders are rarely made by members of the Commission’.

That position has been confirmed in another case involving NSW Health and the Health Services Union – Secretary, NSW Health in respect of HealthShare NSW v Health Services Union NSW [2023] NSWIRComm 1085. In this case Commissioner Muir was asked to make orders terminating proposed industrial action by patient transport officers.

The Patient Transport Service had introduced COVID-19 protocols including distinguishing between ‘red’ and ‘green’ transfers. A red transfer was a patient with COVID-19 and one an ambulance was used for a red transfer it could not be used to transfer a non-covid patient. The judgment does not give details on how that process worked but did report that the Health service wanted to remove the distinction between green and red transfers. The HSU wanted to retain them to protect vulnerable patients. The bans proposed by the HSU was that a vehicle and crew used for a ‘red’ transfer could not be used for a ‘green’ transfer for at least 24 hours ([5]).

The parties set out various submissions either as to why the bans should be lifted and the impact they had on patient transport services versus the need for the bans to protect a particularly vulnerable part of the population ie those being transported by the patient transport service.  

The Commission was not being asked to resolve the factual issues but to determine whether it should make an order terminating the proposed industrial action. It declined to do so. At [64] Commissioner Muir said:

It is clear from the decisions of Walton J [in Secretary of the Ministry of Health v NSW Nurses and Midwives’ Association [2022] NSWSC 1178], that the Commission will not readily grant dispute orders. The Commission would need some greater confidence or some greater detail outlining why there is delay in terms of numbers, dollars or time that is not manageable within the scope of the business of HealthShare before it would act to issue a dispute order.

The Commission refused to intervene in the dispute leaving it to the regular dispute resolution processes in the Act, and the parties themselves, to resolve the issues and come to an agreement on how the contained risk of COVID-19 transmission would be managed.

This blog is made possible with generous financial support from the Australasian College of Paramedicine, the Australian Paramedics Association (NSW), Natural Hazards Research Australia, NSW Rural Fire Service Association and the NSW SES Volunteers Association. I am responsible for the content in this post including any errors or omissions. Any opinions expressed are mine, and do not necessarily reflect the opinion or understanding of the donors.

Categories: Researchers

Doctor suspended over CPR performance

23 August, 2023 - 11:48

In Spencer v Medical Board of Australia (Review and Regulation) [2023] VCAT 944 Dr Spencer asked the Victorian Civil and Administrative Tribunal (VCAT) to review a decision by the medical board to take immediate action to suspend his registration as a medical practitioner. As with many cases reported here, the time it takes for these things to be decided is frightening.  

Dr Spencer’s wife died in January 2015 ([2]). Questions were raised about Dr Spencer’s potential involvement in her death ([3]). It was admitted that both Dr and Mrs Spencer were IV drug users. In March 2022, 7 years later, Victoria police advised the Medical Board that no charges against Dr Spencer were being contemplated ([7]).  Mrs Spencer’s death was then referred to the Coroner – see Inquest into the Death of Mayumi Spencer (8 June 2023). The Coroner determined that there was evidence that Dr Spencer was guilty of ([9]):

… negligent manslaughter due to the delays in seeking urgent medical assistance and Dr Spencer’s duty of care to [MS] upon discovering her in a state requiring urgent medical assistance.

The coroner referred the matter to the Director of Public Prosecutions. At the time of this decision (23 August 2023) the DPP had not communicated a decision to either prosecute, or not ([10]).

As a result of the coroner’s determination, the medical board took immediate action to suspend Dr Spencer’s registration with effect on 11 July 2023 ([13]). It was that decision that is the subject of appeal to VCAT.  Of course an appeal to VCAT may take some time so Dr Spencer also sought an order to ‘stay’ the suspension decision ie to allow him to practice until the VCAT review is complete. It was that application, the ‘stay’ application that is the subject of this decision. Granting a ‘stay’ is serious; if the board has determined that there is a risk to the public that warrants immediate action, allowing a stay would allow the practitioner to continue to practice until the review is complete. If the review finds the decision was correct a practitioner who poses a risk to the community will have been allowed to practice in the interim. On the other hand, immediate action denies a practitioner the opportunity to earn their living before allegations have been established and where, as here, the allegation is criminal in nature, where the practitioner is entitled to the presumption that he is innocent until his guilt has been established.  And at this stage he has not been charged with any offence.

In this case however ‘the Suspension Decision was not based on public safety but rather the public interest in protecting the reputation of the profession’ ie there was no suggestion that Dr Spencer was a risk to other patients. The risk that the immediate suspension was designed to manage was the risk to the reputation of the profession by allowing a person who is suspected of being involved in his wife’s death due to his failure to render appropriate medica care ([21] and [32]).

What did he do, or not do?

The issue of interest to readers of this blog is Dr Spencer’s alleged failings.  At [55] Acting Deputy President Dea said:

The Coronial Findings recorded that Spencer stated that, at around 4:00 am on 17 January 2015, MS:

‘had a fit and began vomiting.  He attempted to resuscitate her.  Whilst doing so, Mr Spencer formed the belief that there was a blockage in her throat and consequently attempted to perform a cricothyroidotomy on her using a kitchen knife and pen.  This procedure was unsuccessful.’

A call to triple zero was made at 7.38am.  It was that delay that forms the basis of the allegation of manslaughter by criminal negligence.  An expert gave an opinion to the coroner that they:

…would expect a very early response (if not the first) to be the calling of an ambulance.  More specifically, I would consider it reasonable, given Peter Spencer’s medical training and concern for aspiration of vomitus to undertake the actions [Dr Spencer described] to attempt to clear the airway before calling an ambulance.  However, these actions can be performed rapidly and should be abandoned quickly if not successful, leading only to a very short delay (less than a minute or two) before calling the ambulance.

[As an aside, anyone who’s done first aid recently (but perhaps not in 2015) knows the Action plan is DRS ABCD where the ‘S’ stands for ‘Send for help’, after checking for Danger and a Response and before commencing CPR.]

Spencer argued ([61])

I provided Medical assistance to my wife in the form of CPR, immediately when I arrived at her body.  She was dead when this commenced.

I called out for help several times and this was presented by a neighbour in the police report.

I did not have access to phones as was mentioned in my sworn statement and in extensive CCTV footage and phone records.

I can not attempt to resuscitate my wife and search for phones at the same time.

After attempting to resuscitate my wife for a number of hours I stopped and called emergency services.

And at [62]:

My wife had the phones in her bag.  …

I did not know where she put the phones/ her bag in our apartment.  I was not able to conduct a search of the house whilst also performing CPR…

Secondly, I have already stated and it is known I had taken IV cocaine at the same time as my wife.  I was momentarily incapacitated by this and not able to attend to her immediately. This was only for a very brief period.

When I was able to move, I performed CPR as soon as I was able to as she had no pulse. To provide immediate resuscitative efforts is the correct decision, as any significant downtime results in brain / cardiac damage and immediate efforts have the highest success rate.

When I did look for the phones it took some time to locate them, further reinforcing this was the right decision.

I called out for help several times and this cry was heard by neighbor’s [sic] and is mentioned in the police report…

Toxicology reports also showed propranolol and other alcohol and Cocaine metabolites in her system, which increase cardiac arrhythmia potential, as well as making resuscitative attempts more difficult…

I performed CPR till exhaustion as I was in shock and loved my wife dearly and did not want to accept her passing… I stopped CPR when I realized and accepted the futility of the situation and conducted a search of the apartment, eventually finding the phone and called an ambulance.

There is no reason to believe negligent manslaughter occurred.

Calling the ambulance any earlier would not have changed the outcome, given all that has been stated, with particular reference to downtime.

Apart from arguing that his response was reasonable in the circumstances and therefore could not be negligent manslaughter, he also argued that there was no need for ‘immediate action’. First the events took place 8 years earlier and the Board were made aware of the event when it happened.  Spencer did not practice between 2015 and March 2021. In March 2021 he had been granted conditional registration and had complied with those conditions ([4]-[6]). He had ‘regular psychiatric evaluations, and drug testing’ and ‘his clinical performance had been evaluated by a supervisor over six months and he was marked as completed and satisfactory by his Supervisor.  As a result he has been shown to be fit to practise and to have no impairments that warrant suspension’ ([67]).

The Board confirmed that the issue was the reputation fo the profession rather than particular risk. They argued (at [73]) (text in square brackets added by Acting Deputy President Dea; emphasis added by me)

The [Coronial Findings] render [Spencer] a substantial threat to public confidence in the medical profession, should he be permitted to practise. The [Coronial Findings] alone weigh heavily in favour of suspension until the outcome of the referral. The fact of referral to the DPP and possible criminal prosecution, reinforces the risk.

In making her decision Acting Deputy President Dea recognised that it was not her job to resolve the factual issues or determine whether or not Spencer was guilty of the offence that may be alleged.  The issue for her was whether there were serious issues that VCAT would have to consider, in due course, when reviewing the decision to suspend Spencer’s registration ([77]-[79]). 

Weighing against the decision to grant the stay is ([82]-[83]):

The existence of the referral to the DPP, related to the manner in which Spencer, as a medical practitioner, applied his medical training and skill in an emergency situation raise serious questions about Spencer’s conduct, the reputation of the profession and public confidence in that profession if he were to be allowed to continue to practice.

The fact of the varying accounts of what occurred on the night MS died given by Spencer also raises concerns about the reputation of the profession and public confidence.

Further (at [92]):

… the greater public interest lay in not staying the Suspension Decision.  The fact the DPP has yet to make a determination as to whether any criminal charges are to be laid together with the Coronial Findings which led to the referral satisfied me that the public confidence in Spencer and the profession as a whole would be damaged if he were entitled to practice pending the hearing of the application and while that state of uncertainty continues to exist.

Even though there would be a delay in hearing the application for review (it is unlikely to be listed before April 2024) Acting Deputy President Dea said (at [96]):

While I gave some weight to the impact on Spencer of the likely delay in the review application being heard, in the face of the other factors and given the circumstances which led to the referral to the DPP, I agreed with the Board that Spencer’s private interest ought not to prevail.

The application for a stay was refused ([97]).

Commentary

There are two issues that deserve comment. The first is the review of performance of CPR. It has been said on this blog and in other places, that the risk of legal liability over CPR is so small as to be almost non-existent. This is the first case that I am aware of where anyone has been criticised, let alone charged, over their CPR performance though there have been other cases where people have been prosecuted for failing to seek appropriate assistance (see for example R v Stone and Dobinson [1977] QB 354; R v Taktak (1988) 14 NSWLR 226; see also Paul Williams and Gregor Ubas ‘Heroin Overdoses and Duty of Care’ (2001) No. 188 Trends and Issues in Crime and Criminal Justice (Australian Institute of Criminology).

Spencer owed a duty of care to his wife both by virtue of their relationship and their shared activity in taking cocaine. The issue was, and will be, whether his CPR performance and his decision to continue CPR rather than stop to try to find a way to call for help was so far below the standard to be expected of a reasonable medical practitioner as to warrant criminal punishment (see Medical mistake and manslaughter (April 10, 2022)).   Of relevance here will be Spencer’s training as a medical practitioner and in particular as a specialist in ‘respiratory and sleep medicine’ ([1]). If Spencer is convicted of negligent manslaughter, it will be an interesting case study on the need to reinforce calling for assistance as a critical early step in the resuscitation process.

The second issue that I comment on is the adage ‘justice delayed is justice denied’.  The issue before VCAT was whether VCACT should stay the immediate action taken by the board. Immediate action is itself only an interim measure to protect the public interest until a relevant complaint is made and determined by a committee or a relevant Tribunal. The timeline of this event looks something like:

  • MS dies in January 2015 ([2]).
  • Spencer agrees not to practice from January 2015 until approved by the Board. His registration lapses in September 2015 ([4]).
  • He is granted conditional registration in March 2021 and has complied with the conditions of his registration ([6]).
  • His registration was suspended in July 2023 after the coroner’s referral to the DPP ([13]) In 8 years police laid no charges; the DPP is yet to decide to lay charges ([11]).
  • He applies for a review of, and a stay of the immediate action. The stay is refused on 22 August 2023.
  • The review will not be heard until April 2024 ([94])
  • The review will simply determine whether the immediate action should stand. If the review is granted, he will be entitled to practice unless and until a finding warranting his suspension is made by a relevant Tribunal. That would depend on a complaint being made either that his conduct – in 2015 – was below the standard to be expected of a practitioner OR that he is convicted of a criminal offence.  Given that no charges have yet been laid one can imagine that if he is charged, it would take another couple of years before they would be resolved.

If the immediate action stands, and Spencer is tried but acquitted of manslaughter say by the end of 2025, he will have been unable to practice for some 10 years. If we accept that his behaviour as an IV drug user posed a risk to public safety, then some period out of practice was a good thing. He did not practice between 2015 and 2021 and has undertaken psychological and drug treatment and complied with conditions on his registration since March 2021.

The real question in my mind is how did it take Victoria police 8 years to decide they were not going to charge him and then refer the matter to the coroner, and how did the coroner come to the opposite decision to police and recommend charges? And how long with the DPP take to decide whether to bring charges?  Spencer’s conduct in 2015 may be a worry but it is outrageous that it has taken 8 years to get to what is simply an interim step in a process that has still a long way to go.

This blog is made possible with generous financial support from the Australasian College of Paramedicine, the Australian Paramedics Association (NSW), Natural Hazards Research Australia, NSW Rural Fire Service Association and the NSW SES Volunteers Association. I am responsible for the content in this post including any errors or omissions. Any opinions expressed are mine, and do not necessarily reflect the opinion or understanding of the donors.

Categories: Researchers

More NSW Ambulance industrial action before the Industrial Relations Commission

22 August, 2023 - 11:42

Health Secretary in respect of NSW Ambulance v Health Services Union NSW [2023] NSWIRComm 1082 Commissioner O’Sullivan was asked to make orders banning certain industrial action by members of the Health Services Union (HSU) working at the Southern Control Centre.  This was an ex-tempore judgment handed down on 1 August (but only appearing in my case law feed today).  An ex tempore judgment is handed down as soon as the case has ended. Sometimes all that is available is a transcript of an oral judgment.  Even if a judge can write out ex tempore judgments with as much care as they do if they reserve the decision. Accordingly this judgement does appear to have a couple of typos for example at [3] and [4] the judgement says:

[3]       Underlying the Dispute, is an interim demand by the notifier for an additional DCCO [Duty Control Centre Officers] on the night shift, should there be a Dispatcher available on night shift that is able to act up into the DCCO position.

[4]       The notifier has not agreed to this interim demand.

The ‘notifier’ is the Health Secretary. It cannot be the case that the notifier is both making the demand that an available Dispatcher act as DCCO and not agreeing to that demand. Presumably the demand for someone to act as DCCO has come from the Union, the respondent to this case.  I make this point as some of the proposed actions are not fully explained one does have to infer some missing information to try to understand the issues.

The proposed work bans were; Controllers would not:

(1)        arrange staff movements ([10]), that is HSU members who are participating in the industrial action, will not contact employees to inform them of changes to their rostered work location. That task would be referred to the Duty Operations Manager who would have to telephone or radio the affected staff ([18]).

(2)        dispatch R3 responses until ‘the virtual clinical care centre has conducted a clinical consultation with external parties and provides relevant notes on the response’ or there had been engagement with ‘patient flow’ or non-emergency patient transport (20]).  Although not explained in the judgement I infer that the intention was to make sure that the patient was ready to go, someone was ready to receive them, and consideration had been given to using NEPT rather than an emergency ambulance.

(4)        stamp the ‘authorisation of callouts on F8 screens’ ([12]) (and without explanation I don’t know what that means).

(3)        dispatch ‘R5 and R6 responses, except for cardiovascular and neurological investigations and if it is deemed to be in the patient’s interests to complete the transport for diagnosis…’ ([22]).

What is of interest is Commissioner O’Sullivan’s comments on the Commission’s approach to a request for orders to in effect prohibit industrial action. He sets out the relevant principles at [14]. First, the power to make the orders is discretionary (not mandatory). In deciding whether to make orders the Commissioner must consider ‘the public interest, objects of the Act and the likely effect on the economy of New South Wales’. Importantly he cites Boland J who said, in Bluescope Steel (AIS) Ltd v Australian Workers’ Union (NSW) (2005) 138 IR 324:

Dispute orders are rarely made by members of the Commission. Long experience has demonstrated that most matters can be resolved by conciliation and/or arbitration without resorting to the prospect of sanctions. The making of a dispute order is a serious step given the consequences for contravention. Persons against whom a dispute order is made are bound to take it seriously, especially members, officials and employees of organisations who may be putting in jeopardy the very existence of their organisation.

His Honour then went through the issues with respect to the proposed industrial action. He found that action 1, requiring the Duty Operations Manager to advise staff of roster changes would have any impact on patient safety and therefore he declined to make the orders sought.

Equally with respect to action 3 he said he was not satisfied that ‘stamping of authorisation of callouts on F8 and F9 screens … will have any impact upon patient or paramedic safety’ ([21]).  Finally with respect to action 4, he noted that dispatchers would continue to dispatch an ambulance ‘for cardiovascular and neurological investigations and if it is deemed to be in the patient’s interests to complete the transport for diagnosis’ and so there was no risk to patient health and safety ([22]-[24]).

That left action 2, withholding the dispatch of R3 cases until others had been consulted. He said (at [20]) ‘It was conceded by both of the respondent [sic] witnesses that it was possible that this would lead to a delay in certain dispatching of patient, both R3 and those under the patient thorough NEPT. There is evidence from the respondent that this may well lead to a risk to patient safety.’  Accordingly, he made orders that this action was prohibited and the HSU was to ‘immediately cease organising and refrain from taking [that] industrial action…’

I have previously reported on ongoing disputes between ambulance and the paramedic unions (the HSU and the Australian Paramedics Association) – see

What is interesting about this latest case is the Commissioner’s conclusion ‘that dispute orders are rarely made by members of the Commission’ ([15]) and his focus on patient and paramedic safety in deciding whether to grant those orders.  That may give some guidance to the unions on how to target ongoing industrial action if that is necessary.

This blog is made possible with generous financial support from the Australasian College of Paramedicine, the Australian Paramedics Association (NSW), Natural Hazards Research Australia, NSW Rural Fire Service Association and the NSW SES Volunteers Association. I am responsible for the content in this post including any errors or omissions. Any opinions expressed are mine, and do not necessarily reflect the opinion or understanding of the donors.

Categories: Researchers

Facilitating incoming international disaster relief

14 August, 2023 - 13:24

Today’s correspondent says:

Australia has an established emergency service and healthcare system and has been fortunate to only draw on international assistance on a small number of occasions in the past 10 years, and when it has, has usually been under the auspice of fire and incident management personnel for large scale bushfires. This said, there are moves afoot to develop a framework/plan that seeks to support the receiving of international support across a range of areas, including healthcare and medical service. Internationally there are formal and informal mechanisms of support, ie Formal – WHO verified Emergency Medical Teams (EMT) and INSARAG verified USAR teams that have para/medical personnel embedded within

I would be keen to know of your views as to the existing barriers and opportunities that might preclude a timely entry and deployment for international healthcare professionals to deploy within Australia? Also, what if someone were not a [protected title] paramedic, but other level of (para)medical level within the USAR team.Does the National Emergency Declaration (NED) assist in breaking down any existing regulatory issues.?”

That’s a great question. I’m sure someone could write a PhD answering that … oh hang on, I did – see Michael Eburn, Australia’s International Disaster Response – Laws, Rules and Principles (PhD thesis, Monash University, 2009, available at https://figshare.com/articles/thesis/Australia_s_international_disaster_response_laws_rules_and_principles/4546003).International Disaster Response Law Guidelines

Just when I started by PhD the International Federation of Red Cross and Red Crescent Societies (the IFRC) published a report – David Fisher, Law and Legal Issues in International Disaster Response: A Desk Study (International Federation of Red Cross and Red Crescent Societies, Geneva, 2007).  This report identified many issues that the Red Cross/Red Crescent movement had identified over their many years of providing international disaster relief assistance. The identified common problems in the areas of:

a. initiation and termination of the international response;

b. goods and equipment (including issues of inappropriate aid and delays in getting humanitarian supplies into an affected country due to customs, transport or administrative barriers);

c. personnel (including issuing visas and recognition of professional qualifications);

d. transport and movement around the disaster area;

e. operational matters (such as establishing an office, opening bank accounts and employing staff);

f. quality and accountability; and

g. the coordination of international responders.

To assist countries the IFRC published the Guidelines for the Domestic Facilitation and Regulation of International Disaster Relief and Initial Recovery Assistance (the IDRL Guidelines). These guidelines were intended to help countries identify whether their domestic laws were sufficient to deal with the sort of issues so that, if they needed international disaster assistance, it could be received. My PhD benchmarked Australian law against the IDRL Guidelines.  My conclusion (at p. 306) was:

Australia lacks a ‘comprehensive legal, policy, and institutional frameworks and planning for disaster prevention, mitigation, preparedness, relief and recovery’. The Commonwealth disaster plan envisages that the Commonwealth’s role will be reactive, to provide support to the states, rather than take a significant leadership role. Australia’s disaster arrangements are largely silent on when and how international assistance may be sought, and the assumption in key planning documents and customs and immigration policy is that the normal rules will continue to apply during a disaster…

To assist countries to make laws to address the issues raised, the IFRC published a model Act and regulations that countries could adopt, or use as a model, in writing their own legislation (see https://disasterlaw.ifrc.org/media/1772).  (And, an important disclaimer, I was part of the expert panel that advised the IFRC on the terms of that Act and its model regulation).

The National Emergency Declaration Act 2020 (Cth)

Australia still lacks comprehensive national emergency management legislation. The National Emergency Declaration Act 2020 (Cth) was passed whist the Royal Commission into National Natural Disasters was still sitting. It pre-empted the recommendations from the Royal Commission about the need for such legislation and what it might contain, and what it might do – see Federal Parliament passes the National Emergency Declaration Bill 2020 (December 15, 2020) and Michael Eburn, ‘The Royal Commission and the Australian Constitution’ (2021) 36(1) Australian Journal of Emergency Management 5-10. At p. 8 I said:

The [National Emergency Declaration] Act, as passed, says nothing about Commonwealth power to manage an emergency nor does it appoint a federal coordinating officer to coordinate the entire Commonwealth government response. There is no link between the declaration and natural disaster relief and recovery funding or the use of the ADF as provided for by the Defence Legislation Amendment (Enhancement of Defence Force Response to Emergencies) Act 2020 (Cth). The Act does not empower the Commonwealth to take the lead in the response or direct the states how to manage the emergency occurring in their jurisdiction.

The National Emergency Declaration Act allows the Governor-General, on the advice of the Prime Minister to make a declaration of a national emergency. Whilst that declaration is in effect a Minister may waive requirements:

… that requires or permits any of the following matters (a relevant matter):

(a) the giving of information in writing;

(b) the signature of a person;

(c) the production of a document by a person;

(d) the recording of information;

(e) the retention of documents or information;

(f) the witnessing of signatures;

(g) the certification of matters by witnesses;

(h) the verification of the identity of a person;

(i) the attestation of documents;

(j) the reporting or notification of a matter to a Department, agency or authority of the Commonwealth.

Where there is other legislation (defined as a national emergency law; s 10) that gives a Minister the power to do something in an emergency, then the declaration under the NED Act is sufficient authority to Act.For example, the Social Security Act 1991 (Cth) provides for the payment of a Disaster Recovery Allowance. On criterion for the award of that allowance is that the Minister has determined that the event is a ‘major disaster’ (s 1061KA(1)(c)). To declare a ‘major disaster’ the Minister must be satisfied (s 36A(1)) that:

(a) the event is a disaster that has such a significant impact on one or more industries and/or one or more areas that a government response in the form of income support is required; and

(b)       either:

(i)         the event is of national significance; or

(ii)        if a national emergency declaration (within the meaning of the National Emergency Declaration Act 2020) is in force–the event is an emergency to which the declaration relates.

The effect is that when a national emergency declaration is in force the Minister responsible for social security does not have to decide that the event is of ‘national significance’ and they can waive requirements like the applicant for disaster recovery allowance must present 100 points of identification or have their application witnessed by a Justice of the Peace.  Largely insignificant when it comes to responding to a catastrophic natural disaster (see Commonwealth declares a national emergency (April 1, 2022).

Visiting militaries and sport teams

With respect to incoming health practitioners Australia does have status of forces agreements that allow visiting militaries to bring their medical teams with them. There is also legislation, for example the Health Professionals (Special Events Exemption) Act 1997 (NSW) that allows participants in declared special events to bring their own medical staff. One can imagine that such declarations are probably in force for the FIFA World Cup currently being played in Australia to allow the visiting teams to have their own doctors, physios etc.  These provisions are however intended to allow the visiting militaries and sports teams to bring their medical staff to treat their own members. Not to provide medical services to the Australian community.

The role of the Commonwealth and the states/territories

Notwithstanding there is a health practitioner regulation national law, it is in fact not a national law. Each state has had to pass legislation to either mirror, or adopt, the Health Practitioner Regulation National Law as passed by the Queensland parliament.  The Commonwealth is not involved in the recognition of or registration of health care professionals.

The Emergencies Act 2004 (ACT) has specific provision for international and interstate assistance. Section 180 provides that if a foreign or interstate specialist providing emergency services in the ACT pursuant to a ‘cooperative agreement’, then he or she is deemed to hold the required ACT qualification or registration to allow them to do their work. This is an example of the sort of law that could be passed to facilitate international relief assistance.

Remember that the health practitioner regulation national law does not restrict or proscribe practice. It merely proscribes the use of a protected title in a way that suggests someone is registered under the Australian law. If a doctor, nurse or paramedic was working in a uniform that clearly identified that they were from a foreign agency or government that may mean they are not in breach of the Health Practitioner Regulation National Law.   But that doesn’t mean they would have any authority to carry, prescribe or administer drugs.

I think, in the context of international disaster assistance and accepting help form international agencies and other governments, the commonwealth could pass relevant laws. The Commonwealth could rely on its power to make laws with respect to external affairs (Australian Constitution s 51(xxix)) and the ill defined ‘nation hood’ power that is the power to make laws on subjects that because of their size or nature are uniquely within the responsibility of the Commonwealth (and a catastrophic disaster would fit that definition – see Pape v Federal Commissioner of Taxation [2009] HCA 23 see also Michael Eburn, ‘Responding to Catastrophic Natural Disasters and the Need for Commonwealth Legislation’ (2011) 10(3) Canberra Law Review 81) and What is a ‘national emergency’? (December 25, 2019)).

The Commonwealth could pass legislation to facilitate the recognition of foreign qualified health professionals who are providing international disaster assistance, but it has not done so. Nor is there legislation to ensure that those who do offer assistance are accountable for their actions so that if a person receives poor care from a visiting medical team they know who they can complain to, who (if anyone) is to provide a remedy and whether AHPRA or a relevant Board can prohibit that person from further work in Australia. 

Conclusion

My view is that legally, Australia is ill prepared to facilitate ‘a timely entry and deployment for international healthcare professionals’. My guess is that they would be allowed to come in and work and no-one would pay too much attention to the legal niceties but that is not best practice given since at least 2007 the problems have been identified and solutions suggested.  

The National Emergency Declaration (NED) Act will do nothing to assist in breaking down any relevant existing regulatory issues.

This blog is made possible with generous financial support from the Australasian College of Paramedicine, the Australian Paramedics Association (NSW), Natural Hazards Research Australia, NSW Rural Fire Service Association and the NSW SES Volunteers Association. I am responsible for the content in this post including any errors or omissions. Any opinions expressed are mine, and do not necessarily reflect the opinion or understanding of the donors.

Categories: Researchers

Paramedic sent to work without required drugs

13 August, 2023 - 16:59

Today’s correspondent is ‘a registered paramedic with a private medical company’ who has been having:

… disagreements with a colleague around the question of ‘am I liable either professionally or personal if the company I work for assigns me to a shift that requires me to hold medication/drugs but I haven’t been provided any by the company to carry and should an issue arise such as an Injury, death or something else from me not carry said drugs?’

The typical lawyers answer is ‘it depends on what you mean by liabile’.

Money damages

Let us assume the Private Medical Company (the PMC) is in some form of business and people come to its staff looking for health care. The PMC has a contract with its client and a common law duty of care to its patients to provide reasonable care. The contract would include implied terms to provide professionally competent services and may have express terms about the level of service to be expected.  When a person goes to the PMC for care they are actually looking to the client for care.  Assume the patient is an employee and the PMC is operating the on-site medical centre. The employee is going to their ‘employers’ medical centre. They don’t care whether the staff are fellow workers or employed by a contractor or independent. Their employer is providing a health care service to their employees. The arrangement between the employer and the PMC is irrelevant to the employee.  If the employee receives sub-standard care because the paramedic on duty was not adequately equipped, the employee will look to their employer as it is the employer that failed to ensure that they employee received reasonable care. The employer could look to the PMC to meet those costs as the PMC failed to provide a reasonable level of care in breach of its contract.  So far, any liability ends with the PMC.

Assume a different event and different circumstances. The PMC is providing event health services and the paramedic has done a risk assessment and concluded they’ll need restricted drugs given the activity being covered. What did the paramedic do about that? Who did they tell? Did they follow the procedure to requisition the drugs?  If the scenario is that they are told that they need the drugs but when they get on scene they find they are not in the kit, what sort of check did they do before they left?  Who was responsible for packing the vehicle etc.  In any of those cases the patient expects the PMC to provide reasonable care. If it is failed to do so it will be liable. Even if the employee paramedic was negligent because they failed to check the kit, or failed to order the drugs, they were acting as part of the PMCs business and the PMC will be vicariously liable.

If by liability, we mean liable to pay money damages to the injured plaintiff then the answer is almost certainly ‘no’.  The doctrine of vicarious liability exists to ensure injured patients have someone to sue who can bear the cost by managing the risk and insuring against residual risk.

Professional liability

By professional liability I mean a risk of disciplinary action under the Health Practitioner Regulation National Law. Here the answer is ‘possibly’.  Using the Queensland version as my reference, s 5 defines ‘”unsatisfactory professional performance” as

… the knowledge, skill or judgment possessed, or care exercised by, the practitioner in the practice of the health profession in which the practitioner is registered is below the standard reasonably expected of a health practitioner of an equivalent level of training or experience.

“Unprofessional conduct” by a registered health practitioner, means ‘professional 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…’

AHPRA’s Shared Code of Conduct, that has been adopted by the Paramedicine Board, requires a paramedic to ‘Put patients first [with] Safe, effective and collaborative practice’; ‘Minimising risk to patients …  – Good practice involves putting patient safety … first’.

There has to be some level of equipment that, without it, you would refuse to go to work.  For example, if the PMC promises to the client to provide a paramedic and an ambulance and you are equipped with a rusty ex-jurisdictional ambulance with an oxygen bottle with no regulator and a first aid kit from Repco, you would probably refuse the job as you would know your professional standing is at risk.  You cannot function as a ‘reasonable’ paramedic in that scenario; you are being set up to fail and patients will be denied whatever is the minimum standard of care they can expect. At some point as a professional you have to decide what is the minimum you will work with. 

Equally if the employer told you to provide treatment that was not evidence based and appropriate you would refuse. If the employer said ‘we’re not going to keep patient records’ or ‘don’t use an indicated drug if you can avoid it as it costs too much, use it only on the most extreme patients, the others can wait until they get to hospital’ even though you know this would give a poor outcome then you would have to refuse to comply. Your job is to give proper care to your patient.  Becoming complicit in the delivery of substandard care, care that is ‘below the standard reasonably expected of a health practitioner of an equivalent level of training or experience’ may mean you should be cautioned, or reprimanded or have conditions imposed on your practice.

The question then is what would peers do if assigned ‘to a shift that requires me to hold medication/drugs but I haven’t been provided any by the company to carry’?  Imagine the patient understands you should have had a particular drug available, you did not but if you had, and if you had used it, they would have had a better outcome. That may well warrant a complaint. And as the Board or AHPRA investigate they will ask ‘what did you do?’

  • When you discovered that you had been assigned a ‘shift that requires me to hold medication/drugs but you haven’t been provided any by the company’ did you do what ‘might reasonably be expected of the health practitioner by the public or the practitioner’s professional peers’ in response to that in all the circumstances?
  • What is the drug? What is the risk to patients of not having that drug available?
  • If the drug wasn’t there did you raise the issue? With whom and how?
  • Would your peers have continued with the shift or would they have said ‘this event or workplace has to shut down as we cannot provide reasonable cover’?

If it becomes a practice that you just ‘put up with’, if you don’t raise it, if patients are harmed, and if you don’t at some point say ‘if you are not going to give me the minimum kit I need to do my job, then I cannot work here because I cannot deliver good paramedic care’ then yes I can see that could be the subject of some action by the Paramedicine Board.

For a related post see Paramedic sent to work without a relevant drugs authority (May 8, 2022).

This blog is made possible with generous financial support from the Australasian College of Paramedicine, the Australian Paramedics Association (NSW), Natural Hazards Research Australia, NSW Rural Fire Service Association and the NSW SES Volunteers Association. I am responsible for the content in this post including any errors or omissions. Any opinions expressed are mine, and do not necessarily reflect the opinion or understanding of the donors.

Categories: Researchers

Fire brigade patient care records

12 August, 2023 - 16:52

Today’s question is about the handover of patients from fire and rescue services to ambulance. 

Photo credit: Country Fire Authority https://news.cfa.vic.gov.au/news/mildura-firefighters-respond-to-medical-emergencies

The question is:

Is there a legal requirement for record keeping of any patient treatment conducted by Fire and Rescue?  Our station officers complete ‘fire reports’ at the completion of every job. Chatting to a few Station Officers I discovered that unless it is a specific medical assist job type where we conduct CPR there isn’t much other information regarding patient treatment.

For example, if we attend a motor vehicle accident (MVA) the station officer might record in their report that firefighters conducted a patient assessment and provided treatment, but this could range from a small bandage to a tourniquet being applied. Should we have a specific form to be kept for any patient first aid treatment?

For clarification all firefighters here are trained to HLTAID014 Provide Advanced First Aid & HLTAID015 Provide Advanced Resuscitation and Oxygen Therapy. We are not paramedics, and we just have first aid skill sets.

The second part of my question is in relation to a handover once the ambulance service arrives.  We conduct a verbal handover at this stage.  This is an area of focus for our upcoming training in completing a more comprehensive verbal and written handover. My question is, are there any requirements for a written handover from one professional service to another?

I have deliberately removed reference to the jurisdiction because the answer doesn’t depend on the jurisdiction.  

For a related post see Paramedic/firefighter keeping patient care records (February 20, 2020). 

There is no general legal obligation to record first aid services provided. That is not to say it’s not a good idea to keep the records.  The WorkSafe Australia Model Code of Practice for First Aid in the Workplace says (p. 19):

A record of first aid treatment given should be kept by the first aider and reported to managers on a regular basis to assist reviewing first aid arrangements. First aid treatment records are subject to requirements under Health Records legislation. Further information is available from the Office of the Australian Information Commissioner.

Work Health and Safety legislation deals with the risk to people from work so the duty to protect employees and others. Given that limitation, the code really relates to first aid in the workplace. Where first aid is provided to firefighters or people who are injured by the firefighters, that must certainly be recorded to keep track of how the fire service is managing risks created by it and its work practices. It is less clear that it would apply to firefighters giving first aid to someone who was injured by the event to which the brigade is responding as they are not injured by the work of the Person Conducting the Business or Undertaking.  Compliance with the Code is not mandatory (Model Work Health and Safety Act s 275) but it may be evidence of compliance with WHS duties should the issue arise. Again, that will only arise with respect to a prosecution under the Act and so will again be relevant to injuries to, or caused by, firefighters.  That is perhaps mere semantics as the Code of Practice confirms that keeping those records is a good idea.

First aid records serve a number of purposes including accounting and record keeping, as an aide memoir should that ever be required and to provide continuity of care and.  To explain.

If a fire service is not keeping records of patient interaction, then it cannot count how often first aid is provided. What is not counted does not count.  Patient records could be used to justify claims for funding (by demonstrating the value of the service), training (by showing what is required and perhaps that first aid is not enough), equipment etc.

If ever there is an issue, whether it’s a coronial investigation, a police inquiry, an inquiry from an insurance company trying to verify a claim, a court case etc a fire fighter may be called to give evidence.  Given the time it takes for cases to reach court, or reports to be written, a fire fighter will have attended many call outs and will forget the details. Notes written at the time can provide a useful memory aid – an ‘aide memoir’ – to help recall the details and, if the details cannot be recalled, to say ‘this is what I wrote at the time so that’s what happened’. 

Continuity of care relates to telling the next care providers, in this case the paramedics, but in turn the hospital what happened. This leads to the second question ‘are there any requirements for a written handover from one professional service to another?’  Again the answer is no, but that does not mean it might not be a good idea.  It may be less relevant, and I’ll leave it to the paramedics to comment, because it depends whether the paramedics actually read it. They will of course do their own assessment and take their own history so may see little value in a form from the fire brigade.  One would also assume that they will record that the patient received some first aid and perhaps had been bandaged prior to arrival.  The legal answer is no there is no legal requirement for such a document. I’ll throw the question of whether it’s useful to the paramedics to answer.

Conclusion

It would be a very good idea for a fire service to have patient care records for firefighters to complete to record their first aid interactions.  Save for the recommendation in the Code of Practice for First Aid in the Workplace there is no law that says those records must be kept. There is law – evidence law – about how records may be used. As a rule of thumb they are evidence as to what happened, without them there is no evidence and that may one day be a problem for the service, the firefighter, the patient or an insurer.

This blog is made possible with generous financial support from the Australasian College of Paramedicine, the Australian Paramedics Association (NSW), Natural Hazards Research Australia, NSW Rural Fire Service Association and the NSW SES Volunteers Association. I am responsible for the content in this post including any errors or omissions. Any opinions expressed are mine, and do not necessarily reflect the opinion or understanding of the donors.

Categories: Researchers