That’s the title of a post from the Facebook page of the Paramedic Observer, Ray Bange, and I think him from bringing this to my attention.  In his post Ray provides a links to the Premier’s media release at https://tinyurl.com/p6zyh46n. In that release the Premier says:

The legislation to allow paramedics to independently deliver patient care is expected to reduce pressure on Victoria’s ambulance services and emergency departments. Paramedic Practitioners will be able to assess, diagnose and treat many conditions locally without needing to transfer patients to a hospital.

The biggest change will be for paramedic practitioners to be able to handle and administer scheduled medicines so they can prescribe and supply medicines on the spot.

 The media release refers to the Paramedic Practitioners Bill 2024 but that is not the proper title of the Bill.  The full title is the Drugs, Poisons and Controlled Substances Amendment (Paramedic Practitioners) Bill 2024.  The full title of the Bill makes clear that the legislative change will only relate to the supply of medications.  The other objectives that the government have identified – that is, allowing paramedics ‘to assess, diagnose and treat many conditions locally without the need to transfer patients to hospital’, can be met without legislative change.  

The long title says that the Bill is intended ‘to establish paramedic practitioners as a class of registered paramedics authorized to obtain, possess, use, sell and supply certain substances and for other purposes’.  The Bill, if passed will come into force on 12 November 2025 or such earlier date as may be proclaimed by the government (s 2).   The term ‘paramedic practitioner’ will mean:

…  a registered paramedic who—

(a) has completed a prescribed postgraduate qualification; and 

(b) satisfies the prescribed experience requirements (if any);

Any paramedic practitioner will be authorized (s 5) to:

… obtain and possess and to use, sell or supply any Schedule 2, 3, 4 or 8 poison approved by the Minister in the lawful practice of the person’s profession as a paramedic practitioner;

Further wherever the Drugs, Poisons and Controlled Substances Act 1981 (Vic)refers to a ‘nurse practitioner’ it will not refer to a nurse or paramedic practitioner’ so whatever authority and limitations that currently govern nurse practitioners will also govern paramedic practitioners.

Presumably between now and the commencement dates there will be changes made to the Drugs, Poisons and Controlled Substances Regulations 2017 (Vic) to allow paramedic practitioners to prescribe schedule 4 and 8 drugs (r 16).  One can also anticipate changes to r 8 to allow a nurse or midwife to obtain and administer sch 4 and 8 drugs that have been prescribed for a person by a paramedic practitioner.  Paramedic practitioners, like nurse practitioners, I assume will also be able to write ‘chart’ instructions on hospital and residential medication charts (rr 28 and 29).

There is nothing in the Bill that says paramedic practitioners have to be employees of Ambulance Victoria so these changes could well open practice opportunities for paramedics.  The legislation, if passed will also help resolve situations, such as that described in my post Appropriate or inappropriate use of ambulance services? (October 19, 2024) as it would allow paramedic practitioners to prescribe relevant medication to be administered by nursing home professional staff without the need to transport the person to hospital.

This is a commendable initiative, and I look forward to seeing how it is implemented.

This blog is made possible with generous financial support from (in alphabetical order) the Australasian College of Paramedicine, the Australian Paramedics Association (NSW), the Australian Paramedics Association (Qld), 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.

This blog is a general discussion of legal principles only.  It is not legal advice. Do not rely on the information here to make decisions regarding your legal position or to make decisions that affect your legal rights or responsibilities. For advice on your particular circumstances always consult an admitted legal practitioner in your state or territory.

You may have read in recent news stories about a recent High Court of Australia decision involving the Catholic Church’s liability for misbehaviour by a priest – see for example

• Elizabeth Byrne, ‘High Court ruling that Catholic Church not ‘vicariously liable’ for priest’s abuse sparks calls for law reform’ ABC News (Online) 16 November 2024;
• Tony Wright, ‘Gillard urges states to act after ‘deeply concerning’ ruling that Catholic Church is not liable in abuse case’ Sydney Morning Herald (Online) 17 November 2024;
• Christopher Knaus, ‘High court rules Catholic church not liable for child abuse by priest it didn’t directly employ’ The Guardian (Online) 13 November 2024;
• Naomi Neilson, ‘High Court upholds 25 years of ‘harsh’ precedent in historic abuse case’ Lawyers Weekly (Online), 14 November 2024.

The case in question is Bird v DP (A Pseudonym) [2024] HCA 41 and the case may have implications for volunteers in the emergency services.  The issue was whether the Catholic church was vicariously liable for the intentional tort of a former, now deceased, priest who had sexually abused DP.   Vicarious liability is a type of liability, traditionally an employer, is liable for the torts committed by its employee even though the employer itself has done nothing wrong.

I have previously argued that an organisation that uses volunteers will also be vicariously liable for the actions of the volunteers even though they are not employees – see

• Vicarious liability for volunteers (April 23, 2018);
• The expanding doctrine of vicarious liability (October 12, 2020); and
• Vicarious liability for volunteers (November 25, 2023) (which includes a discussion of Bird v DP [2023] VSCA 66, the decision of the Victorian Court of Appeal that was the subject of this appeal to the High Court).

The High Court’s decision in Bird v DP turns those arguments on their head. In Bird’s case, in a joint judgment Chief Justice Gageler, along with Justices Gordon, Edelman, Steward and Beech-Jones JJ held that vicarious liability could only arise where there was an employee/employer relationship.  They said (at [5]):

… the position in Australia is that an employer may be vicariously liable for the acts of its employees, but there is no such liability for the acts of those who are not in an employment relationship but, instead, are, for example, independent contractors or in a relationship “akin to employment”.

I had argued, based on precedents such as those discussed in the posts above and in particular Hollis v Vabu [2001] HCA 44 that a relationship akin to employment would be sufficient and that a volunteer in the emergency services looks for all purposes like an employee, the only difference is that they don’t get paid.  But it appears that is not sufficient.   At [46] to the judges said:

In Australia, an employer may be liable for the acts of its employees, but there is no vicarious liability, in the sense it is now being discussed, for the acts of those not in a relationship of employment, namely acts of third parties outside of that context. If the act complained of is not that of an employee, then the defendant is not, without more, liable…

And (at [48], references omitted):

Vicarious liability has had a tortured history not only in this Court but also in other jurisdictions. So, for example, more than 20 years ago, in Hollis, this Court observed that the modern doctrine relating to vicarious liability of an employer for the torts committed by an employee “was adopted not by way of an exercise in analytical jurisprudence but as a matter of policy” and that “[a] fully satisfactory rationale for the imposition of vicarious liability in the employment relationship” has proven to be quite elusive. Since then, this Court has, more than once, repeated those concerns describing vicarious liability as, among other things, an “unstable principle”, for which a “coherent basis” and “fully satisfactory rationale” for its imposition have been “slow to appear in the case law”. Part of the difficulty may have been the use of the expression “vicarious liability” to describe three different concepts. But even with vicarious liability in its true or proper sense – liability based on the attribution of the liability of another – this Court has not accepted an overarching theory based on “enterprise risk” beyond any employment relationship. Whether or not true vicarious liability can be explained by any theory based on a relationship of employment, a relationship of employment has always been a necessary precursor in this country to a finding of vicarious liability and it has always been necessary that the wrongful acts must be committed in the course or scope of the employment. There is no solid foundation for expansion of the doctrine or for its bounds to be redrawn.

Justice Gleeson, in a separate judgement disagreed on the assessment of vicarious liability. She referred to developments overseas, in particular in the UK and Canada and said (at [79]):

This case is a missed opportunity for the Australian common law to develop in accordance with changed social conditions and in tandem with developments in other common law jurisdictions. For the reasons given below, I do not agree with the plurality that relationships that are akin to employment do not attract vicarious liability in Australia.

At [86] Gleeson J quoted from the decision in Hollis v Vabu where Chief Justice Gleeson (Gleeson J’s father) along with Justices, Gaudron, Gummow, Kirby and Hayne JJ explained the concept of enterprise risk.  The said:

In general, under contemporary Australian conditions, the conduct by the defendant of an enterprise in which persons are identified as representing that enterprise should carry an obligation to third persons to bear the cost of injury or damage to them which may fairly be said to be characteristic of the conduct of that enterprise.

She said (at [88]-[89]):

The statement explains vicarious liability by reference to the responsibility of an enterprise for harms caused in the conduct of the enterprise, and particularly, responsibility for harms caused by persons who are “identified as representing that enterprise”. That is not a new idea. The suggestion that vicarious liability reflects the function of an enterprise “as a mechanism for absorbing, controlling and spreading social and economic risks” appears in both early case law and academic writings.

The plurality’s statement in Hollis is consistent with the enterprise liability theory of vicarious liability, which underpins the current doctrine of vicarious liability in Canada and England and Wales. In particular, the statement accords with the observation of Lord Reed (with whom Baroness Hale, Lord Kerr and Lord Clarke agreed) in Armes v Nottinghamshire County Council that, of the various justifications for the imposition of vicarious liability in the English and Welsh case law:

“The most influential idea in modern times has been that it is just that an enterprise which takes the benefit of activities carried on by a person integrated into its organisation should also bear the cost of harm wrongfully caused by that person in the course of those activities.”

The idea of the enterprise risk would say that volunteers are an essential part of the agency’s enterprise. An agency like a rural fire service or state emergency service cannot operate without its volunteers. They turn out in response to requests for help made to the agency, they wear uniforms and travel in vehicles that identify them not as individuals but as the agency for which they volunteer. Their training, methods of operation, tasking etc are all controlled by the agency.

At [93] Gleeson J said:

The enterprise liability theory, as articulated by this Court in Hollis, and as followed in Lepore and in Sweeney, is the central justification for vicarious liability in Australia. A modest expansion of vicarious liability to relationships that are akin to employment accords with that central justification.

Although Gleeson J disagreed with the view of the law expressed in the majority joint judgment, she did agree that in this case there would be no vicarious liability. She said (at [183]) ‘although the relationship between the Diocese and Coffey attracted vicarious liability, Coffey’s torts were not committed in the course of that relationship.’

Jagot J in a further separate judgement agreed with the majority that the concept of vicarious liability is restricted to employer and employees.

What are the implications?

The majority judgement was critical of the use of the term ‘vicarious liability’ to mean on of three routes by which a superior is legally responsible for the conduct of others.  Vicarious liability, as now explained by the High Court is limited to employers and employees.

Agency

But a principal can be liable for the conduct of its agent. Agency (at [31]):

… is a form of primary liability where the acts of another person are attributed to the defendant on the basis that the acts were done for the defendant with the defendant’s express, implied or apparent authorisation of the acts, or ratification of the acts by the defendant. In other words, the acts were done with the defendant’s “seal of … approval”, amounting to an acceptance of the acts as the defendant’s own.

For emergency service volunteers it is likely that they are the agent if not the employee of the service in that they perform their duties at the direction of and subject to the control of the service for which they volunteer.

Non-delegable duty of care

Agencies may be found to owe a ‘non-delegable’ duty of care that is a duty not only to take reasonable care but ensure that reasonable care is taken by others.  At [37] the majority said:

Such a duty arises where the nature of the relationship between the defendant and the other person to whom the duty is owed is one where the defendant has assumed particular responsibility to ensure that care is taken, rather than merely to take reasonable care. For example, where the defendant has “undertaken the care, supervision or control of the person or property of another or is so placed in relation to that person or [their] property as to assume a particular responsibility for [their] or its safety, in circumstances where the person affected might reasonably expect that due care will be exercised”.

A ‘classic’ example of the non-delegable duty is the duty owed to a patient by a hospital and the hospital cannot defend a claim in negligence on the basis that it employed qualified professional staff to provide health care.  If there is a failure to provide reasonable care then the hospital has failed to ensure that reasonable care is taken.   A similar argument could be made for the emergency services (noting in many cases, as discussed elsewhere in this blog, the emergency and in particular the fire services do not owe any duty of care to those in need of rescue).  But if circumstances arise where someone wants to allege negligence or some other tort by one of the emergency services they would not sue the individual volunteer but the service on the basis that the service breached its non-delegable duty.

Direct duty of care

Finally, there is a direct duty of care. If the agency’s volunteer is negligent then the agency has been negligent. The agency may have a duty to ensure that volunteers are adequately trained, resourced and supervised such that a failure to do any of those things or to otherwise arrange a ‘reasonable’ response may be a breach of the agency’s direct duty of care.

Legislative intervention

At [63] the majority said that if the concept of vicarious liability is to be extended that is a matter for the legislature.  With respect to volunteers all Australian states and territories have passed legislation to say that volunteers are not personally liable for any negligence where there actions are performed in good faith and in accordance with the directions of the agency for which they volunteer (see Civil Law (Wrongs) Act 1958 (ACT) s 8; Civil Liability Act 2002 (NSW) s 61; Personal Injuries (Liabilities and Damages) Act 2003 (NT) s 7; Civil Liability Act 203 (Qld) s 39; Volunteer Protection Act 2001 (SA) s 4; Civil Liability Act 2002 (Tas) s 47; Wrongs Act 1958 (Vic) s 37; Volunteers and Food and Other Donors (Protection From Liability) Act 2002 (WA)  s 6; Commonwealth Volunteers Protection Act 2003 (Cth) s 6).

Except in NSW and Queensland, these provisions specifically provide that any liability that would have fallen to the volunteer is to be worn by the community organisation for which they volunteer thereby imposing a form of vicarious liability.  The Commonwealth Act only applies to people who volunteer for a commonwealth agency eg volunteer guides at the National Gallery of Australia or the like.

Emergency services legislation also has provisions to protect the agency from liability for acts done in good faith and to protect its volunteer members. In some cases that legislation also creates a system of vicarious liability where the agency, rather than a member, is liable for any default (see for example Victoria State Emergency Service Act 2005 (Vic) s 42; Country Fire Authority Act 1958 (Vic) s 92).

Policy choices

Agencies can adopt policies to accept liability even if that is not strictly required. The Cathollic church could have agreed to pay DP’s damages rather than take the matter to the High Court if they wanted to. The emergency services recongise that if they don’t protect their volunteers they won’t have any volunteers and organsiations like the NSW Rural Fire Service have gone to considerable lengths to ensure relevant protection – (see for example Gaps in NSW RFS volunteer workers compensation (August 28, 2024) and the response by the RFS published in a comment to that post; Eburn Michael, Dovers Stephen (2012) Australian wildfire litigation. International Journal of Wildland Fire 21, 488-497 https://doi.org/10.1071/WF11094).

Conclusion

I note that despite the High Court’s assertion that this decision is consistent with its previous judgments over the last 25 years, clearly the 4 judges in the Victorian Supreme Court and Gleeson J in the High Court as well as a number of commentators (including this one) disagree.   It remains to be seen what the implications of this decision are. No doubt over the next few years cases will make their way to the court to determine the issue.  It should be noted that volunteers have not been sued and are unlikely to be but this case does throw some doubt into the legal position.

In a previous post Paramedic killer not criminally responsible (November 9, 2024) I reported that Davies J sitting as the NSW Supreme Court had returned the special verdict of ‘act proven but not criminally responsible returned’ with respect to Jordan Fineanganofo who had, amongst other offences, stabbed and killed NSW paramedic Steven Tougher.   In that post I reported that the Court now had a number of options.  Under the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW) s 33.  The court could:

… make one or more of the following orders–

(a) an order that the defendant be remanded in custody until a further order is made under this section,

(b) an order that the defendant be detained in the place and manner that the court thinks fit until released by due process of law,

(c) an order for the unconditional or conditional release of the defendant from custody,

(d) other orders that the court thinks appropriate.

In his decision in R v Fineanganafo (No 2) [2024] NSWSC 1407, Davies J ordered that

… the defendant is to be detained in a correctional facility or such other place as determined by the Mental Health Review Tribunal, until he is released by due process of law.

It was not a long judgment and rather than attempt to summarise it I simply set out below [3]-[8] of His Honour’s judgement particularly where His Honour was speaking to Mr Tougher’s colleagues.  The Judge said:

I have listened to the very moving tributes to Steven in the victim impact statements. There can be no doubt that he was a very special person who was greatly loved and respected. His brutal and senseless killing is difficult to comprehend. His killing has badly affected not only family members but also his work colleagues, particularly those who were involved in the events of that awful night. Their lives will never be the same again.

I want to commend the very brave actions of Mr James Arthur and Mr Daniel Nia who tried very hard to stop the defendant from stabbing Mr Tougher by kicking him and grabbing him in a bear hug, at very considerable risk to themselves. Mr Arthur and Steven’s other colleagues have been deeply traumatised by their experiences. I also acknowledge what Mr Appleyard, the victim of the threatened stabbing at the 7 Eleven at Ingleburn, experienced at the time, and how that has so badly affected his life since; and I acknowledge Ms Howe, the victim of the offence in the Bunnings Car Park, and how that has affected her. I also acknowledge the other victims of the offences committed by the defendant from whom we have not heard.

The outcome of the enquiry has not been, and will not be, easy for family members, colleagues and friends of Mr Tougher and for some members of the community to understand. What happened in the McDonalds carpark was a terrible tragedy. Mr Tougher who, as a paramedic, was employed to help and save people in unfortunate and tragic situations became the victim without any fault on his part. He said or did nothing to provoke what happened. Tragically, he came into contact with the defendant who had suffered from, and at the time suffered from, severe mental health issues that impaired his judgment and ability to think logically, and caused him to act in the way he did. The behaviour he manifested towards the other victims, all randomly threatened in one way or another, also demonstrates those mental health issues.

I extend to Mr Tougher’s wife, his parents, his sister and other members of his family, his colleagues and his friends, my sympathy and condolences on behalf of the Court for their loss.

It is important for everyone to understand the effect of the special verdict I found. The effect of the orders will be that the defendant will remain in custody and be held as a forensic patient to come under the supervision of the Mental Health Review Tribunal. The statutory scheme surrounding that Tribunal is such that the defendant will not be released until the Tribunal is satisfied that the safety of any member of the public, or of the defendant himself, will not be seriously endangered by his release: ss.29(d) and 84(2) of the Act. His case will be reviewed by the Tribunal as soon as practicable and will be subject to review at six-monthly intervals: s. 78 of the Act. If, at some stage in the future, the defendant comes to be released, it may be on conditions, and if any of those conditions are breached, or his mental condition deteriorates to a point where he may be a serious danger to others, the Tribunal may order that he be apprehended and further detained: s.109 of the Act.

Dealing with mentally ill people, especially when they commit crimes, is not easy, in the sense that the interests of all involved need to be taken into account and protected. The Act under which I conducted the enquiry and will make the orders concerning the future of the defendant, is a relatively new Act that makes provision for how mentally impaired people who commit crimes are dealt with, building on developments in knowledge and experience since the earlier Act was passed 30 years previously. I understand that some will feel that what the Act provides is not satisfactory, and that the system itself is not satisfactory, but that is the way the Court and we, as a society, have to deal with tragedy, such has occurred here, where mentally impaired people commit these crimes.

This blog is made possible with generous financial support from (in alphabetical order) the Australasian College of Paramedicine, the Australian Paramedics Association (NSW), the Australian Paramedics Association (Qld), 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.

This blog is a general discussion of legal principles only.  It is not legal advice. Do not rely on the information here to make decisions regarding your legal position or to make decisions that affect your legal rights or responsibilities. For advice on your particular circumstances always consult an admitted legal practitioner in your state or territory.

In Australian Paramedics Association (NSW) v Health Secretary in respect of New South Wales Ambulance (Virtual Clinical Care Centre Clinicians) [2024] NSWIRComm 1066, Commissioner McDonald had to rule on some preliminary issues in a dispute between the Australian Paramedics Association (‘APA’) joined also by the Health Services Union, and NSW Ambulance (‘NSWA’).

At issue is the classification and therefore rate of pay for employees in the Virtual Clinical Care Centre (‘the VCCC’). Since its inception, clinicians in the VCCC were classified as ‘‘Aeromedical Operations Officers’ paid as an Aeromedical Control Centre Officer (ACCO) or Paramedic Level 3, Band 2.   The VCCC had been established quickly during the COVID-19 pandemic and employees had been assigned to it on a temporary basis.  NSWA now want to ensure its permanent operation and to appoint officers to the VCCC on a permanent basis but proposed they would be employed as paramedic level 1 or 2 with a resulting pay decrease for those already working in the VCCC.  The APA argued that this was not permitted by the NSW Ambulance Paramedics (State) Award 2023 (‘the 2023 Award’).   Alternatively, the APA argued that a new employee classification of Virtual Clinical Care Centre Triage Clinician should be established and paid at the the rate of Paramedic Level 3, Band 2. NSWA argued that the creation of this new employee classification was prohibited by the 2023 Award.   The clause that both parties relied on is the ‘no extra claims clause’ (cl 51 of the 2023 Award) that says:

51.  No Extra Claims

Other than as provided for in the Industrial Relations Act 1996, there shall be no further claims/demands or proceedings instituted before the Industrial Relations Commission of New South Wales for extra or reduced wages, salaries, rates of pay, allowances or conditions of employment with respect to the employees covered by the Award that take effect prior to 30 June 2026 by a party to this Award.

The decision involved a long and complex analysis of various provisions of the award and the understanding of the parties at the time the award was made, and I will not report on these technical details.  Suffice to say the Commission determined that neither the proposed classification of VCCC employees as paramedic level 1 or 2, nor the proposed new classification of VCCC triage clinician equivalent to paramedic level 3 Band 2, were prohibited by cl 51 that is the proposals by both NSWA and the APA did not constate an ‘extra claim’. 

That is not the end of the matter. This ruling allows the dispute as to the appropriate classification of VCCC triage clinicians to proceed through the Industrial Relations Commission’s dispute resolution process. As Commissioner McDonald said (at [9]

… NSWA will have to prove to the Commission that the assignment of the VCCC Triage Clinician position to work level Paramedic Level 1 or Paramedic Level 2 is “required”. The APA, if it pursues its counter proposal, will need to establish that the Commission may vary the 2023 Award in the manner sought…

It remains to be seen how the dispute will be resolved.

This blog is made possible with generous financial support from (in alphabetical order) the Australasian College of Paramedicine, the Australian Paramedics Association (NSW), the Australian Paramedics Association (Qld), 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.

This blog is a general discussion of legal principles only.  It is not legal advice. Do not rely on the information here to make decisions regarding your legal position or to make decisions that affect your legal rights or responsibilities. For advice on your particular circumstances always consult an admitted legal practitioner in your state or territory.

My correspondent says:

Today’s question is in relation to AI dictation and documentation tools in the prehospital environment.  I’ve recently noticed colleagues such as doctors in hospitals and my GP using AI for documentation. Apps like Heidi AI say they are compliant with Australian data safety standards and are a fantastic tool.

My employer a state ambulance service states we are not able to use this as it’s not endorsed by the ambulance service.

AHPRA outlines our requirements as a professional when using AI here https://www.ahpra.gov.au/Resources/Artificial-Intelligence-in-healthcare.aspx

Is an employer able to dictate what software and systems a clinician uses to aid clinical documentation and decision making?

If so what potential issues will prehospital clinicians face in the implantation of these tools.

There are limitations and risks in the use of AI as explained by the AHPRA document – Meeting your professional obligations when using Artificial Intelligence in healthcare – and referred to in the question.  I would be particularly concerned if entering patient data to understand where that data is stored and how it is used.  Clearly, as the AHPRA document identifies there are complex technical and with those, legal issues involved.    A doctor who operates their own practice can make their own decisions about those risks.  A paramedic who is employed by a jurisdictional ambulance service (or by any employer) is not acting on his or her behalf if they make decisions to employ AI they make those decisions on behalf of their employer who will face the potential legal consequences if the data is not adequately protected, there is a breach of confidentiality or a failure to obtain proper, informed consent.

Joanna Morgan and Alannah Hogan, Lawyers from the firm Corrs Chambers Westgarth writing for LexisNexis Australia’s General Counsel Practical Guidance say:

There is a term implied in law in every contract of employment requiring an employee to obey the lawful and reasonable directions of their employer. This term goes to the root of the employment contract, and gives effect to the right of employers to exert “control” over employees — which is a key determinant of the existence of a contract of employment.

In Construction, Forestry, Maritime, Mining and Energy Union, Mr Matthew Howard v Mt Arthur Coal Pty Ltd T/A Mt Arthur Coal [2021] FWCFB 6059. [72] the Full Bench of the Fair Work Commission said:

Reasonableness is a question of fact having regard to all the circumstances’ and that which is reasonable in any given circumstance may depend on, among other things, the nature of the particular employment. The approach to the task of assessing the reasonableness of a direction to an employee was identified by Dixon J in Darling [R v Darling Island Stevedoring & Lighterage Co Ltd; Ex parte Halliday [1938] HCA 44], as follows:

‘But what is reasonable is not to be determined so to speak, in vacuo. The nature of the employment, the established usages affecting it, the common practices which exist and the general provisions … governing the relationship, supply considerations by which the determination of what is reasonable must be controlled…

If ‘the clinician uses [AI] to aid clinical documentation and decision making’ where that documentation is being written, and the care delivered on behalf of the employer then it seems axiomatic to me that a direction to not use AI would be a lawful and reasonable direction.   Failure to adhere to that direction could lead to disciplinary action by the employer.

If the employer directed a clinician to use an AI tool that raises more complex questions because of the practitioner’s independent obligations to their patient and professional standards.   Whilst a practitioner may be excused some of the due diligence requirements on the expectation that the employer has meet them and will be responsible if the tool turns out to be inadequate in some respects.  Given the AHPRA document a registered practitioner may have duties to report to an employer their concerns about any particular tool that the employer has adopted. That was, indeed, part of the argument for registration of paramedics, to empower them as a profession to ‘stand up’ to employers to insist that they are able to perform their role in a way that matches standards set by the profession, not by employers.   A direction to ‘use’ a particular AI tool may breach the rule as it may be ‘unreasonable’ if it puts paramedics at risk of breaching their professional obligations and may be ‘unlawful’ if, for example, the tool should be but is not registered with the Therapeutic Goods Administration (see, again Meeting your professional obligations when using Artificial Intelligence in healthcare).

Conclusion

The question asked was ‘Is an employer able to dictate what software and systems a clinician uses to aid clinical documentation and decision making?’  The broad answer is that an employee is required to obey the lawful and reasonable directions of their employer.   If an employer’s direction to use, nor not use, particular ‘software and systems … to aid clinical documentation and decision making’ is lawful and reasonable then it must be complied with.  Whether the direction is lawful and reasonable depends on all the circumstances which would include consideration of the matters identified by AHPRA.

This blog is made possible with generous financial support from (in alphabetical order) the Australasian College of Paramedicine, the Australian Paramedics Association (NSW), the Australian Paramedics Association (Qld), 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.

This blog is a general discussion of legal principles only.  It is not legal advice. Do not rely on the information here to make decisions regarding your legal position or to make decisions that affect your legal rights or responsibilities. For advice on your particular circumstances always consult an admitted legal practitioner in your state or territory.

Today’s question comes from a person who works:

… in an Ambulance Service that due to a Rural Volunteer shortage is often undertaking the interhospital transfer of patients as single officer.  This is currently done by putting patient on monitor and turning it to face the rear vision mirror and driving the patient to either a RV point or the hospital.  Some operators choose to give narcotic pain relief on way and monitor via rear vision mirror and some choose not to give narcotics to patient with pain due to the risks. 

When we transfer a patient, should they be treated or not, are we providing a level of care that could be seen a decrease in the level that they were already receiving and what would be the legal ramifications of this?

This question is simply about risk management.  Presumably there is a risk to the patient if they are not transferred to the other hospital, that is there has to be some reason to send them.  Then there is the risk to them along the route. Of course that risk might be reduced if there two ambulance officers, or two paramedics, or a medical retrieval team.  I imagine a single operator is not tasked to transfer a patient from one ICU to another.  But not everyone gets a medical retrieval team to deal with unlikely risks. Presumably then someone has considered the patient’s condition, the need for the transfer, the alternative transfer options etc.

The test is always what is reasonable in all the circumstances. If someone has not considered the patient’s condition eg the doctor who books the transfer or the single operator who turns up and says ‘that’s not safe’ then that may be negligent.  But if everyone has and has made a decision that is reasonable in all the circumstances, including the ambulance officer who considers whether they can observe the patient and whatever the indications and contraindications for any drug treatment are, then that is all that can be expected.  Even if something goes wrong en route.

I cannot say whether a person should be ‘treated’ or not. One has to weigh up the risks and benefits. If you’re talking narcotic pain relief you have to consider the risk to the patient and their well being if they are not provided adequate pain relief, and the risk to them if they are and cannot be monitored. I would think that if you believe they need pain relief but they also need monitoring then you need to raise that with the medical team so that the situation can be considered.   This is a clinical question. The legal question is ‘were the actions reasonable in all the circumstances?’  that is not a question that can be answered in the abstract.

This blog is made possible with generous financial support from (in alphabetical order) the Australasian College of Paramedicine, the Australian Paramedics Association (NSW), the Australian Paramedics Association (Qld), 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.

This blog is a general discussion of legal principles only.  It is not legal advice. Do not rely on the information here to make decisions regarding your legal position or to make decisions that affect your legal rights or responsibilities. For advice on your particular circumstances always consult an admitted legal practitioner in your state or territory.

In GKT v Fire and Rescue New South Wales [2024] NSWCATAD 335, Fire and Rescue NSW (FRNSW) was ordered to pay $8000 as compensation for breaching the Privacy and Personal Information Protection Act 1998 (NSW) (the ‘PPIP Act’).   

The issue arose after attempts to resolve issues between the applicant, GKT, a platoon commander and the firefighters within his platoon.  To resolve these issues the zone commander met separately with GKT and the members of the platoon.  During the meeting with the platoon members the zone commander took notes. He later circulated draft minutes of the meeting so the members could ‘confirm the accuracy of his record and make any changes necessary’ ([7]). There was a subsequent meeting nd some changes were made, and a revised version of the minutes were circulated ([10]). The zone commander stressed that the meeting was confidential and directed firefighters to destroy hard copies of the minutes ([6] and [9]).

After the second meeting the zone commander was advised that a copy of the minutes was ‘on the watch room desk at the station’ ([11]).   EA MacIntyre, Senior Member (‘MacIntyre SM’) of the NSW Civil and Administrative Tribunal (‘NCAT’) said(at[12], [14], [16]-[18]]):

The zone commander’s evidence was that later that day, he contacted one of the other officers at the fire station. That other officer informed the zone commander that there was a copy of the minutes present in the station officer’s office. The zone commander’s evidence was that he then directed the station officers to destroy all copies of the minutes present in the station. His evidence was that he received confirmation from the station officer that this had been done and that no other copies of the minutes had been found, apart from the copy in the station officer’s office…

The zone commander’s evidence was that he directed the firefighters at the station to complete the Respondent’s privacy awareness training as soon as possible. He also informed the firefighters of the potential consequences of the conduct in question, that it was potentially a breach of privacy and could be referred to the Privacy Commissioner and the Commissioner of the Respondent…

On 25 March 2024, the Applicant made a complaint to the Respondent’s privacy officer. That complaint was about the confidential minutes being “out for everyone to read on the mess room desk, and watch room”. He saw this as “bullying by members of my crew and detrimental to a resolution of the conflict between us”.

The Respondent proceeded to conduct an internal review of the conduct. That review found that the Respondent had breached ss 12 and 17 of the PPIP Act.

The Respondent then provided an apology to the Applicant and advised of certain measures being taken. They included a direction to staff to undertake mandatory online privacy awareness training about behaviour that was contrary to the Respondent’s code of conduct and ethics. The matter had also been referred to the Public Service Board for assessment.

In an application to NCAT the applicant sought money damages and further orders to deal with the alleged breach of privacy. NCAT had to determine for itself whether there had been a breach of the privacy principles.

Lack of adequate security

The first allegation was that FRNSW had failed to comply with obligations to keep personal information secure (PIPP Act s 12).   FRNSW argued that they had ‘taking such security safeguards as are “reasonable in the circumstances”’ ([21]) as required by s 12(c).  At [25]-[26] MacIntyre SM’ said:

In the Respondent’s submission, the security safeguards in place to protect the Applicant’s personal information included repeated verbal warnings about confidentiality of the meeting in question and a direction to destroy all hard copies of minutes that had been printed out. The Respondent also pointed to provisions in the Respondent’s privacy policy and privacy management plan, setting out and establishing responsibilities of staff in protecting the privacy of individuals. The Respondent also produced evidence of relevant provisions of the Respondent’s code of conduct and ethics, and requirements to undergo privacy training. However, the Respondent conceded that only three firefighters at the platoon in question had completed training.

The Respondent submitted that any breaches occurred in contravention of an express direction made on a number of occasions that the information contained in the minutes be kept confidential. The Respondent submitted, accordingly, that s 12 did not impose liability for actions of an individual staff member where reasonable security safeguards had been imposed and that staff member has acted contrary to those security safeguards…

He continued (at [34]-[36]):

The Respondent’s evidence was that the matters set out … above, answer the descriptions of safeguards as are reasonable in the circumstances, including the directions given to platoon members to destroy hard copies of the minutes.

However, the events that transpired involved not just what happened at a particular point in time when a hard copy of the minutes were left in an open area at the station in question by an employee without authority to do so. The evidence is that the minutes in question were left in an open place for two days, with no action being taken by any person in charge to remove the minutes. The evidence was that the station was attended and in operation at all relevant times, including the period when the minutes were left out.

It is difficult to fathom why, for a period of two days, when the station was attended and in operation, and when fire fighters other than those belonging to the particular platoon in question may have attended the station, the minutes in question were left in an open place, without being collected by someone in charge. I do not in the circumstances consider that security safeguards as were reasonable in the circumstances were in place during the two days in question, regardless of the directions given and policies in place. What happened was more than a simple “inadvertent disclosure” occurring in a moment of time. An expectation that someone in charge would and should have removed confidential material discussed at meetings and not left it in at open area, is neither onerous nor unreasonable. Accordingly, I find that a breach of section 12(c) occurred during the period when the minutes in question were left in an open place for all to see, including firefighters from other places if visiting the station.

Improper use

Another alleged breach of the PIPP Act was the allegation that leaving the minutes out in the watch room constituted an improper use contrary to s 17 of the Act. MacIntyre SM said (at [42]-[43]):

Mere retrieval of information does not constitute a use (JD v Department of Health (GD) [2005] NSWADTAP 44, at [42]). In that case, it was said that “use” in the context of privacy legislation under consideration in that case should be “interpreted as the process of considering, assessing or weighing up personal information so as to make a decision or adopt a further course of action”. The Respondent’s submission was that leaving the relevant minutes out was not a “use” of that information in the relevant sense. Nor was there any “use” resulting from the firefighters at the station viewing or accessing the minutes.

The Respondent’s submission was that any use which an individual firefighter may have actually put the information to after having read the minutes, was not authorised by the Respondent and cannot be attributed to the Respondent.

At [48] the senior member concluded:

I am of the view that leaving minutes out or allowing them to be left out is a “use” of the minutes. “Use” of information may occur by assimilating or otherwise taking in the information. Allowing this to happen by leaving the minutes out, in my opinion, is also a “use” of the information. That use can be described in terms of allowing access to the minutes to persons other than those to whom the Respondent gave copies for the purpose originally intended. This amounts to more than simple inadvertence occurring in a moment of time. This was a “use” other than for a purpose for which the information was collected. I find, as a result, that a breach of s 17 took place.

Disclosure

The final allegation was a breach of s 18 that requires a public sector agency not to disclose personal information held by the agency except as permitted by the Act.  At [50] the Respondent’s submissions are summarised as:

… while the minutes may have been accessible to firefighters outside the platoon in question or to “on call” firefighters employed by the Respondent, they were still part of the Respondent. The Respondent submitted that the Applicant had not led any evidence that anyone outside of the Respondent viewed the minutes as a result of their being left out.

These submissions were accepted. MacIntyre SM said (at [53]):

There is no evidence that persons other than personnel belonging to the Respondent saw the minutes in issue. In these circumstances, I find that no breach of s 18 has occurred.

Damages

The tribunal awarded damages to compensate the applicant ‘for the psychological distress suffered’ ([68]).   At [73] the Tribunal said:

I do not consider that the circumstances at hand warrant damages at the high end of the scale … Nor am I of the view that the damages should be at the minimal end of the scale. I accept the evidence of the disruption to the Applicant’s life resulting from the Respondent’s breaches and the resulting psychological harm the Applicant claims. Even if reputational damage may not, of itself, ground a claim for damages, reputational damage is a relevant consideration where psychological harm is the consequence. I think in the circumstances an award of damage in the order of $8,000 is appropriate, having regard to the circumstances of the breaches that occurred and the consequential injury to the Applicant.

Further orders

The tribunal was satisfied that the Respondent had taken action to deal with the privacy issues, including requiring further privacy training for all firefighters at the station. Further (at [77]-[79]):

The firefighters attended a meeting in which they were reminded of the Respondent’s expectations around privacy and confidentiality.

… the Respondent had made arrangements for the staff at the station to undergo in person respectful workplace training and privacy training.

[And] … the matter was referred to the Public Service Board which conducted their own investigation and implemented a local management response.

In the Tribunal’s opinion (at [80]) ‘no further orders are required’.

This blog is made possible with generous financial support from (in alphabetical order) the Australasian College of Paramedicine, the Australian Paramedics Association (NSW), the Australian Paramedics Association (Qld), 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.

This blog is a general discussion of legal principles only.  It is not legal advice. Do not rely on the information here to make decisions regarding your legal position or to make decisions that affect your legal rights or responsibilities. For advice on your particular circumstances always consult an admitted legal practitioner in your state or territory.

I have made the point in earlier posts that scheduled drugs should not be carried in first aid kits without relevant authority (see for example Taking drugs out of their box to save space (November 6, 2024) and The last word on scheduled drugs? (September 29, 2019)).

Two schedule 3 drugs that are relevant to first aid are salbutamol in puffers for use in treating asthma and adrenaline in auto-injectors for treating anaphylaxis.  Can you carry these drugs in your first aid kit without first applying for and receiving special authority?1

 Salbutamol puffersAdrenaline autoinjectorACTNo; unless you are a nurse or paramedic who holds a first-aid kit licence; Medicines, Poisons and Therapeutic Goods Regulation 2008 (ACT) r 450. No; unless you are a nurse or paramedic who holds a first-aid kit licence; Medicines, Poisons and Therapeutic Goods Regulation 2008 (ACT) r 450. NSWA person who holds a current emergency asthma management certificate issued by an organisation approved by the Secretary of Health is authorised to possess and use salbutamol or terbutaline in metered aerosols if required in connection with the carrying out of first aid; Poisons and Therapeutic Goods Regulation 2008 (NSW) Appendix C cl 12.A person is authorised to possess and use adrenaline for anaphylaxis first aid provided the adrenaline is contained in single use automatic injectors that have been filled by the manufacturer and that deliver no more than 0.3 milligrams of adrenaline each, and the person holds a current first aid certificate issued after completion of a first aid course approved by the WorkCover Authority as referred to in regulations made under the Occupational Health and Safety Act 2000, and the person has received training on the symptoms and first aid management of anaphylaxis from— (i)  a first aid training organisation approved by the WorkCover Authority, or (ii)  any other organisation approved by the Secretary; Poisons and Therapeutic Goods Regulation 2008 (NSW) Appendix C cl 13.2NTNo; Medicines, Poisons and Therapeutic Goods Act 2012 (NT) ss 37 and 38.No; Medicines, Poisons and Therapeutic Goods Act 2012 (NT) ss 37 and 38.QldA person who has a current certificate granted by a registered training organisation for the provision of first aid and who has completed asthma training; Medicines and Poisons (Medicines) Regulation 2021 (Qld) sch 5, part 2.A person who has a current certificate granted by a registered training organisation for the provision of first aid and who has completed anaphylaxis training; Medicines and Poisons (Medicines) Regulation 2021 (Qld) sch 5, part 2.SANo; Controlled Substances Act 1984 (SA) s 15 and Controlled Substances (Poisons) Regulations 2011 (SA) r 12.No; Controlled Substances Act 1984 (SA) s 15 and Controlled Substances (Poisons) Regulations 2011 (SA) r 12.TasNo, but provision is made for a First Aid Providers Licence to be issued to a first aid provider service (not an individual) to allow the use of salbutamol and other drugs; Poisons Act 1971 (Tas) r 18A and Poisons Regulations 2018 (Tas) r 10.No, but provision is made for a First Aid Providers Licence to be issued to a first aid provider service (not an individual) to allow the use of salbutamol and other drugs; Poisons Act 1971 (Tas) r 18A and Poisons Regulations 2018 (Tas) r 10.VicNo, but may be obtained and used by the holder of a first aid service licence; Drugs, Poisons and Controlled Substances Regulations 2017 (Vic) rr 133E and 141.No, but may be obtained and used by the holder of a first aid service licence; Drugs, Poisons and Controlled Substances Regulations 2017 (Vic) rr 133E and 141.WANo; Medicines and Poisons Act 2014(WA) s 25.No; Medicines and Poisons Act 2014(WA) s 25.

NOTES

1. This table is about buying these schedule 3 drugs to include in a private first aid kit where the drugs have not been purchased for the benefit of the person buying them or someone they are caring for (eg their child).  It does not address, or identify, people who have permission because of the nature of their employment or volunteer role eg teachers, child-care workers, ski patrollers etc to have these drugs as part of their workplace first aid kit. Where this type of authority is granted, it relates to their role and does not allow them to carry the drugs in their private kit.   Further, this table does not address assisting a person to use their own puffer or epipen or using a puffer or epipen that someone else lawfully possesses to benefit someone else in the event of a medical emergency. For the purpose of this table I have in mind someone who wants to buy an epipen or asthma puffer to put in their own kit, ‘just in case’.
   
   Where the legislation provides explicit permission (NSW and Qld) those sections are cited. In many other cases it is a negative inference, that is there are provisions that allow specifically listed people eg health practitioners or holders of first aid kit licences to carry these drugs. The inference is if anyone could possess them for first aid use, these specific authorities would not be required. I have therefore cited sections that identify where a class of persons are authorised to carry these drugs with the inference that a first aid qualified citizen, given they are not listed, is not permitted to carry them.  For example, if provision is made for ‘first aid licences’ to authorise the possession and use of the drugs, it follows that someone without that licence cannot put them in their first aid kit.
   
   
2. The NSW legislation is clearly out of date.   The Occupational Health and Safety Act 2000 (NSW) was repealed and replaced by the Work Health and Safety Act 2011 (NSW) in 1 January 2012.  The WorkCover Authority was replaced by SafeWork NSW on 1 September 2015.

This blog is made possible with generous financial support from (in alphabetical order) the Australasian College of Paramedicine, the Australian Paramedics Association (NSW), the Australian Paramedics Association (Qld), 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.

This blog is a general discussion of legal principles only.  It is not legal advice. Do not rely on the information here to make decisions regarding your legal position or to make decisions that affect your legal rights or responsibilities. For advice on your particular circumstances always consult an admitted legal practitioner in your state or territory.

On 14 April 2023 Jordan Fineanganofo fatally stabbed NSW Paramedic Steven Tougher in a carpark at Campbelltown McDonalds.   This event ended 2 days of conduct by Fineanganofo that included acts of intimidation, damage to property and violence directed to people that were unknown to him.   On 8 November 2024 Justice Davies sitting in the NSW Supreme Court held, in R v Fineanganafo (No 1) [2024] NSWSC 1400, that Fineanganofo was not criminally responsible for his actions on these days.

The legislative scheme

The old defence of insanity has been replaced by provisions in the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW).  That Act provides (at s 28) for a defence of mental health impairment or cognitive impairment. The section says:

A person is not criminally responsible for an offence if, at the time of carrying out the act constituting the offence, the person had a mental health impairment or a cognitive impairment, or both, that had the effect that the person–

(a) did not know the nature and quality of the act, or

(b) did not know that the act was wrong (that is, the person could not reason with a moderate degree of sense and composure about whether the act, as perceived by reasonable people, was wrong).

Where the defence is made out the court returns a ‘a special verdict of act proven but not criminally responsible’ (ss 30 and 31).   That verdict may be returned by a jury (s 30) or a judge where both the prosecution and the defence agree that the evidence establishes the defence applies (s 31). 

Mr Fineanganofo’s case

This was a case where mental health professionals consulted by both the prosecution and the defence agreed that Fineanganofo ‘understood the nature and quality of his acts but did not know that the acts were wrong’ that is he could not ‘reason with a moderate degree of sense and composure about whether the act, as perceived by reasonable people, was wrong’ ([104]).  The psychiatrist who examined the accused on behalf of the Crown said (at [105]):

Mr Fineanganofo was acutely psychotic and this caused him to be preoccupied with and act in response to intense auditory hallucinations, likely passivity phenomena (thought insertion), disorganised thought processes and persecutory delusions of demons controlling his behaviour. Collateral information is consistent with a person experiencing a relapse of psychosis due to schizophrenia. The intensity of the symptoms Mr Fineanganofo reported and appeared to be experiencing caused him to appear in a trance (likely due to internal preoccupation), incongruent in affect and odd. It is likely he was acting in response to symptoms, but also incapable of coherent and logical thought processes such that he could reason with composure about his actions at the time.

The psychiatrist who examined him on behalf of the defence said ([106]):

He was probably aware of the physical nature of his actions in stabbing another person, despite his disorganised thinking and evolving delusional beliefs. However, at the time of the offence I believe he was deprived of the ability to recognise that his actions were morally wrong, or to reason with any measure of sense or composure about the wrongfulness of his actions.

Where the parties are in agreement that the criteria for the defence are established a judge is required to conduct an inquiry to determine if, ‘after considering that evidence, is satisfied that the defence is so established’ (s 31(c)).

The inquiry

The decision the subject of this report was the outcome of that inquiry.  The first step was to consider the evidence that proved Mr Fineanganafo did in fact do the things alleged. This was not in doubt and was also supported by video evidence. His Honour was (at [111])  ‘satisfied beyond reasonable doubt that the accused committed the physical acts the Crown is required to establish to prove the offences’ alleged.

At the time of the killing, Mr Fineanganofo was reported to have said either “I’m going to gaol anyway, I may as well kill him” or, “I’ve gotta kill him because I’ve gotta go to gaol” ([107]). The judge, and the psychiatrists, considered wiether these words indicated that he did know that his actions were wrong. Dr Eagle, the Crown’s consulting psychiatrist said (at [108]):

Mr Fineanganofo may have appreciated he could be subject to legal sanctions for his conduct, such as incarceration, but felt compelled to engage in the conduct on the basis of distorted reasoning due to a delusion that the victim was demonic, or auditory hallucinations ordering him to kill, combined with an inability to reason due to disorganised and distorted thought processes. He was not able to reason as to the moral wrongfulness of his behaviour which was driven by distorted beliefs, disorganised thinking and auditory hallucinations.

Dr Nielssen, the psychaitrist consulted on behalf of the defence, said (at [109]):

The words uttered by Mr Fineangonofo would appear to indicate some awareness of the legal situation and that his actions would be considered to be punishable by law. However, the symptoms of an acute episode of psychosis described by Mr Fineangonofo, confirmed by the other information that is available, were accompanied by gross impairment in the capacity for logical thinking and in the ability to regulate his emotional responses, which in turn deprived him of the ability to consider the potential consequences of his actions with any measure of sense or composure. I concur with the opinion of Dr Eagle, that the homicide offence was a direct result of the effect of symptoms of mental illness, and was not due to a callous disregard for the potential consequences, and that his reported remarks at the time of the offence did not indicate the presence of some capacity to consider the moral wrongfulness of his conduct.

The evidence was unanimous, Mr Fineangonofo was suffering from a ‘mental health impairment … that had the effect that … [he] could not reason with a moderate degree of sense and composure about whether the act, as perceived by reasonable people, was wrong.’ The judge however had to come to his own conclusion on whether the defence was made out (s 31(c)). His honour said (at [115]-[120]):

In my opinion, there is no evidence that casts any doubt on the opinion of the psychiatrists that the accused suffered from a mental health impairment. I accept their opinions and find that the accused was suffering from a mental health impairment at the time he carried out the physical acts constituting counts 1 to 6.

The psychiatrists both hold the opinion that the accused did not know his acts were wrong. It is necessary, however, to consider what the witness remembered the accused saying at the time of the stabbing of Mr Tougher. It may be accepted that whichever of those remarks … was made it might lead to a conclusion that the accused knew that what he was doing was wrong.

However, both psychiatrists had the first of those remarks specifically drawn to their attention with a request for a further assessment on the issue of whether the accused knew that what he was doing was wrong. In the case of Dr Eagle a separate report was sought in case it was found that the second of the remarks was made rather than the first. The supplementary reports of the psychiatrists explain why they did not change their opinion notwithstanding the making of the first of those remarks. Their explanations were the same, namely, that the accused was grossly impaired in his capacity to think and reason in a logical way.

… The substance of the second of those remarks did not differ from the former of the remarks in the context of considering whether the accused knew that his actions were wrong. If anything, the latter remark suggests less of a realisation of wrongdoing, and more that he was compelled to do something. This may hark back to what was noted in the PACER assessment that he acts on the voices he hears and is unable to stop himself.

In circumstances where the experts’ explanations for their opinion in that regard are, in substance, the same, and there is nothing else to suggest that that opinion should have doubt cast on it, I consider that I ought to accept their opinion that, notwithstanding what the accused said, he did not know that his actions were wrong.

For those reasons, I accept the psychiatric evidence on the balance of probabilities that the accused suffered from a mental health impairment and that such mental health impairment had the effect that the accused did not know that his acts were wrong in respect of each of the counts.

What next?

That is not the end of the matter. Having returned a special verdict (Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW) s 33:

… the court may make one or more of the following orders–

(a) an order that the defendant be remanded in custody until a further order is made under this section,

(b) an order that the defendant be detained in the place and manner that the court thinks fit until released by due process of law,

(c) an order for the unconditional or conditional release of the defendant from custody,

(d) other orders that the court thinks appropriate.

If no order is made for the defendant’s unconditional release (s 33(c)) then the defendant must be referred to the Mental Health Review Tribunal (s 34). 

Whilst the judgement does not set out any orders made, I infer that Mr Fineanganafo remains in custody. There will no doubt be further evidence led to establish the appropriate outcome and orders will be made ensuring his continued detention and treatment until his release is authorised by the Mental Health Review Tribunal (ss 69-155).

This blog is made possible with generous financial support from (in alphabetical order) the Australasian College of Paramedicine, the Australian Paramedics Association (NSW), the Australian Paramedics Association (Qld), 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.

This blog is a general discussion of legal principles only.  It is not legal advice. Do not rely on the information here to make decisions regarding your legal position or to make decisions that affect your legal rights or responsibilities. For advice on your particular circumstances always consult an admitted legal practitioner in your state or territory.

Today’s question revisits the issue of conflict between an employer’s expectations and a paramedic’s scope of practice. My correspondent is:

…  graduating as a Paramedic in Victoria at the end of the year and as such will be registering with AHPRA, I also work as a First Responder/First Aider with a company providing services to events. At a particular event, where I operate as a single officer there are items provided as part of my equipment that are well beyond the scope of a First Aider such as intubation equipment, chest decompression needles and physical aids such as pelvic binders and slishman traction splints.

I currently do not utilise them (nor have I had the need to) as I am not currently qualified or accredited, but that will change once I graduate.

I have been told by some currently registered paramedics that to work at that site may jeopardise our registration by not making full use of our registered skills when the equipment is present if it is required for patient care. It is an event with a high likelihood of significant trauma (Recreational Dirtbike/Motorcross with large jumps) where the use of such equipment may well become needed.

I recognise that this is a multifaceted question, involving ethics, duty of care, employment roles, legal ramifications etc., but was advised to ask on here as my lecturer was unable to assist.

I have answered this question, or questions like it, many times – see Don’t let the patient die (June 11, 2019), Revisiting conflict between a paramedic’s skills and an employer’s duty statement (April 26, 2021) and all the posts you can find here https://australianemergencylaw.com/?s=%22let+the+patient+die%22. I have also plenty of posts where people talk about being a health professional and working in a lower expected skill set (eg a doctor as surf-lifesaver, paramedics as firefighters).

There is however one point in this question I want to address. I want to reiterate that the Health Practitioner Regulation National Law does not define the scope of practice of a paramedic. Becoming ‘registered’ does not automatically open the door to a skill set or permission to do things that one did not otherwise have.   There are no laws that say who can use ‘intubation equipment, chest decompression needles and physical aids such as pelvic binders and slishman traction splints’.  They can be used by anyone who knows how and when, and when not, to use them.

A paramedic is required to practice within their scope of practice. The Code of Conduct for paramedics, published by the Paramedicine Board says:

Good practice includes that you:

1. ensure you maintain adequate knowledge and skills to provide safe and effective care
2. ensure that, when moving into a new area of practice, you have sufficient training and/or qualifications to achieve competency in that new area

3. …
4. consider the balance of potential benefit and harm in all clinical management decisions…

Your ‘scope of practice’ is that which you are capable of doing. A new graduate paramedic does not suddenly acquire new skills and competency on the day of registration or suddenly have access to and permission to perform procedures they did not have the day before. What they are required to do is reflect on their own skills and experience and consider what it is they are competent to do.  Part of that self-reflection must also consider the limitations if any imposed by an employer.  No-one really expects newly graduated paramedics to be competent to practice on their own hence jurisdictional ambulance services have long on-boarding processes to get the graduates up to an appropriate skills level. A newly graduated paramedic may have been trained in some techniques, but a reflective paramedic may still consider whether those things are truly in their scope such as they would apply them when operating as a single officer.  What it means for this paramedic is not for me to say but for them to know and consider.

Fundamentally a paramedic has to provide care in the best interests of his or her patient taking into account that paramedic’s skills and knowledge, the equipment available, the directions of the employer.  If you’re a paramedic, you don’t cease to be a paramedic because you work in a job with another title.  You are practising paramedicine when you use your skills and knowledge as a health practitioner which you do regardless of the job title.   You can expect to be judged against the standard of what an equally qualified and experienced paramedic would do in the same circumstances – ie not what they would do if they were part of a two-person crew responding in a jurisdictional ambulance but if they were facing the same circumstances including directions from an employer.

I cannot go past my earlier advice of Don’t let the patient die (June 11, 2019).

This blog is made possible with generous financial support from (in alphabetical order) the Australasian College of Paramedicine, the Australian Paramedics Association (NSW), the Australian Paramedics Association (Qld), 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.

This blog is a general discussion of legal principles only.  It is not legal advice. Do not rely on the information here to make decisions regarding your legal position or to make decisions that affect your legal rights or responsibilities. For advice on your particular circumstances always consult an admitted legal practitioner in your state or territory.

Today’s question returns to the issue of paramedics seeking to follow up on their patients and whether that is permissible under current privacy laws – see Giving feedback to paramedics (April 1, 2017) and QAS paramedics accessing patient information via ‘The Viewer’ for ‘follow up’(October 20, 2023).  Today the question comes from a Victorian paramedic who says:

 … I wanted to seek your opinion on the Health Records Act 2001 (Vic). The health privacy principles are listed in Schedule 1 of the Act. Principle 2 relates to Use and Disclosure. I believe, in my unqualified opinion, section 2.2 is relevant to the theme of paramedics seeking feedback.

 There are numerous subpoints and subheadings, and I find that the combination various bullet points and conjunctions may lead me to incorrectly believe this Act provides slightly more supportive language in the theme of paramedics seeking feedback (from hospital staff regarding patients they cared for).

Let me start by saying I understand the value of paramedics getting feedback both to allow them to reflect on their performance and to identify what worked and what did not, and also to give a sense of closure on their work.  Even so whether it is a good idea or not does not determine what the legislation says.

Privacy Principle 2.2 in the Health Records Act 2001 (Vic) is a very complex principle. The clauses that I identify as potentially relevant are 2.2(a) and (f), quoted below:

2.2     An organisation must not use or disclose health information about an individual for a purpose (the secondary purpose) other than the primary purpose for which the information was collected unless at least one of the following paragraphs applies —

(a) both of the following apply—

(i) the secondary purpose is directly related to the primary purpose; and

(ii) the individual would reasonably expect the organisation to use or disclose the information for the secondary purpose; or …

(f)     the use or disclosure is for the purpose of—

(i) funding, management, planning, monitoring, improvement or evaluation of health services; or

(ii) training provided by a health service provider to employees or persons working with the organisation—

and—

(iii) that purpose cannot be served by the use or disclosure of information that does not identify the individual or from which the individual’s identity cannot reasonably be ascertained and it is impracticable for the organisation to seek the individual’s consent to the use or disclosure; or

(iv) reasonable steps are taken to de‑identify the information—

and—

(v) if the information is in a form that could reasonably be expected to identify individuals, the information is not published in a generally available publication; and

(vi) the information is used or disclosed in accordance with guidelines, if any, issued or approved by the Health Complaints Commissioner under section 22 for the purposes of this subparagraph; or…

A health service (in this context a hospital) acquires and records health information including details of observations, treatments, opinions and diagnosis.   The primary purpose of obtaining and recording that information is to provide health care to the patient for the patient’s benefit.  Reporting back to paramedics is not part of that primary purpose it is therefore a secondary purpose.  Reporting information back to paramedics will be permitted if that use is ‘directly related to the primary purpose’ and the patient ‘would reasonably expect’ the hospital to provide that feedback. 

Let us assume for the sake of the argument that an ‘individual would reasonably expect’ a health service like a hospital would share information back to treating paramedics about a patient, their condition to allow those paramedics to reflect on their performance.

Schedule 1 to the Health Records and Information Privacy Act 2002 (NSW) sets out the NSW Health Privacy principles. Principle 11(1)(b) is in the same terms as principle 2.2(a) of the Victorian principles quoted above. A note in the NSW Act says:

For example, if information is collected in order to provide a health service to the individual, the disclosure of the information to provide a further health service to the individual is a secondary purpose directly related to the primary purpose.

Giving information to the paramedic previously involved in the patient’s care is not making a disclosure to assist in the delivery of further or future health services to that individual.

In ‘QF’ & Others and Spotless Group Limited (Privacy) [2019] AICmr 20 the Australian Information Commissioner and Privacy Commissioner gave consideration to what is meant by ‘directly related’ in an employment context.   Commissioner Falk said (at [49]-[50], and substituting the words ‘health care’ for ‘employment’):

… the act or practice must be directly related to the [health care] … relationship, and not merely an act or practice having an indirect, consequential or remote effect on that relationship.

The Macquarie Online Dictionary defines ‘related’ as “associated; connected”. ‘Directly’ is relevantly defined as “in a direct line, way, or manner…absolutely; exactly; precisely”. The literal interpretation is therefore a strict one, with the term denoting ‘absolutely or exactly having connection’ to the [health care] relationship between the [hospital] … and the individual.

Giving feedback to past practitioners is not directly related to the ongoing delivery of health care.   I note that this opinion is consistent with the view expressed by the Privacy Commissioner and reported in my earlier post see Giving feedback to paramedics (April 1, 2017).  It follows that I don’t see principle 2.2(a) as giving any greater flexibility than the Commonwealth and Queensland laws reported in the earlier cases.

Principle 2.2(f) could be relevant but only at an organisational level.  For example assume Ambulance Victoria (AV) has a process where a paramedic can ‘flag’ a case for review. They think the case will provide useful lessons for others or they want to have their own performance reviewed to reflect on and learn from the event.  In that case AV may have arrangements with the hospital where they can identify the case for review and obtain details of the patient outcome to help feed into the process for the ‘monitoring, improvement or evaluation’ of the services provided by AV and for the ‘training provided by [AV] … to employees or persons working with the organisation’.  As I say that would have to be arranged at an organisational level and is certainly not covered by a paramedic asking a nurse about ‘the patient we brought in earlier…’.

Conclusion

My conclusion after looking at the Commonwealth laws, the Queensland laws and now the Victorian laws is that it is a breach of privacy for hospital staff – nurses and doctors –  to share with paramedics details of a patient’s health condition including observations, diagnosis, treatment, prognosis and further information that may have been obtained.  I say that recognising that there is great value in paramedics being able to close off a case and understand how their actions impacted upon the patient. But just because it’s a good idea does not change the letter of the law. 

Health information is obtained to allow the medical team to provide health care to the person. Sharing that information with people who were, but who are no longer involved in the person’s care is not the primary purpose for which the information was obtained nor is it ‘directly related’ to that purpose.

This blog is made possible with generous financial support from (in alphabetical order) the Australasian College of Paramedicine, the Australian Paramedics Association (NSW), the Australian Paramedics Association (Qld), 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.

This blog is a general discussion of legal principles only.  It is not legal advice. Do not rely on the information here to make decisions regarding your legal position or to make decisions that affect your legal rights or responsibilities. For advice on your particular circumstances always consult an admitted legal practitioner in your state or territory.

Today’s question is about drug packaging.  The question comes from New South Wales and a person working:

…  in the outdoor education industry specializing in leading high school students on multi-day hiking expeditions. Outdoor educators are provided with workplace first aid kits for these trips and as we are going out into the field those first aid kits contain over-the-counter medications such as paracetamol, ibuprofen, antihistamines, and anti-diarrhoeal medication. We are given (or denied) permission to administer these medications to the students via paperwork from their parents. 

I work across multiple schools and outdoor education companies and have observed that it is standard for medication to be stored in the expedition first aid kits in blister packs only, without the original cardboard packaging, to save space. I have raised this as an issue with managers in the past since without the original packaging there is no information about dosages and contraindications available. However, my concerns were dismissed. 

I was therefore very interested to hear during the recent training that this practice might in fact be illegal. My questions to you are: 

a)             whether this is indeed the case, and 

b)             where I can find this in the legislation so that I may refer to it the next time I am presented with a workplace first aid kit containing medication without its original packaging. 

Scheduled drugs

As I’ve indicated before no-one should be carrying and supplying scheduled drugs even those that can be bought over the counter.  The Therapeutic Goods (Poisons Standard—October 2024) Instrument 2024 (Cth) (‘the Standard’) tells us that schedule 2 drugs are Pharmacy medicines, that is:

Substances, the safe use of which may require advice from a pharmacist and which should be available from a pharmacy or, where a pharmacy service is not available, from a licensed person.

These drugs must only be supplied by ‘a pharmacist (or an assistant under the direction of a pharmacist) …)’ (cl 57), not from a person who bought the drugs from a pharmacy or licensed person.

Schedule 3 drugs are Pharmacist only medicines, that is:

Substances, the safe use of which requires professional advice but which should be available to the public from a pharmacist without a prescription.

These drugs must only be supplied by ‘a pharmacist ….’ (cl 59) not from a person who bought the drugs from a pharmacist.

We can conduct a little thought experiment here.  I can go into a pharmacy and buy a pack of 100 paracetamol tablets – that is paracetamol listed under schedule 2.  But I couldn’t go and buy 10 packets and then start selling them. Clearly, I am not a pharmacist so cannot sell schedule 2 drugs.  If I cannot sell them, I also could not give them away. I would still be ‘supplying’ the drug, which includes ‘dispense and distribute’ and to ‘keep or have in possession for … dispensing or distribution’ (Poisons and Therapeutic Goods Act 1966 (NSW) s 4 definition of ‘supply’).  The Therapeutic Goods Act 1989 (Cth) s 3 further says that supply includes ‘administration to, or application in the treatment of, a person’.  If I cannot give away packets of 100, why can I give away two to a person who asks for them?  If I give the pills to someone, I am still ‘supplying’ the drug to them, and not in circumstances where they can ‘get advice from a pharmacist’ as I am not a pharmacist.

We can also look to the example of schedule 3 drugs in particular epipens and salbutamol inhalers. Regulation 18 of the Poisons and Therapeutic Goods Regulation 2008 (NSW) says that schedule 3 drugs must not be supplied to a person unless the drugs are personally given by the pharmacist and giving the person the chance to seek advice about the medication. This rule, however, does not apply to the supply of ‘… salbutamol or terbutaline in metered aerosols for first aid purposes to a person who holds a current emergency asthma management certificate …’ nor does it apply

… to the supply of adrenaline for anaphylaxis first aid purposes if—

(a) the adrenaline is contained in single use automatic injectors that have been filled by the manufacturer and that deliver no more than 0.3 milligrams of adrenaline each, and…

the person ‘has received training on the symptoms and first aid management of anaphylaxis…’  Appendix C to the Poisons and Therapeutic Goods Regulation 2008 (NSW) also provides that an appropriately trained person can possess those drugs for use in first aid.

If it was permissible to carry any schedule 3 drug in a first aid kit on the basis that you can buy it over the counter then those provisions would not be required. Clearly the Department and the Parliament accept that the purchase of, and carrying schedule 3 drugs for use in first aid is not generally permitted so specific exemptions are given for salbutamol and adrenaline.  The same argument would apply to schedule 2, without a specific exemption it cannot be permissible to carry schedule 2 drugs in order to supply them to a person without that person having the opportunity to ask a pharmacist about those drugs.

To be honest I don’t think any regulator would care if a person, when asked, said ‘I’ve got some paracetamol (or Imodium, or antihistamine), would you like one?’ to a friend or colleague who had a headache, diarrhoea or hay-fever.  But it’s different when you are holding yourself out as a practitioner of some sort and it’s different if you buy the drugs with the intended purpose of carrying them to hand out to people who you have not yet met.  That is, I see a difference where I have bought the drugs for my use and a friend or colleague asks for a paracetamol, from a case where I have bought them with the intention of – for the purpose of – supplying them to others.

Packaging

For the following discussion these definitions from the standard are relevant:

immediate container includes all forms of containers in which a poison is directly packed but does not include any such container intended for consumption or any immediate wrapper.

immediate wrapper means metal foil, plastic foil, waxed paper, or any other such material not intended for consumption, when used as the first wrapper for a dosage unit or dressing.

primary pack, in relation to a poison, means the pack in which the poison and its immediate container or immediate wrapper or measure pack are presented for supply.

If we’re talking about a box of paracetamol, the box is the ‘primary pack’ and the blister pack inside the box is the immediate wrapper.

Section 13(1) of the Standard says, ‘A poison must not be supplied unless it is labelled in accordance with this Division’.  The primary pack must contain words indicating the schedule the drug is listed in (s 16) along with the words ‘keep out of reach of children’ (s 18).  Other words must also be included depending on the type of poison, eg Schedule 8 poisons must have the words ‘possession without authority illegal’ (s 17) and there are other specific warnings for drugs that are a fire or burn hazards (s 19 and 20) etc.  The approved name and quantity, proportion or strength must also be listed (s 26).

Section 14 says (emphasis added):

Immediate wrapper

If a poison is enclosed in an immediate wrapper:

(a) the poison must be contained in a primary pack labelled in accordance with section 15; and

(b) the immediate wrapper must be conspicuously labelled with:

(i) the name of the manufacturer or distributor or the brand name or trade name used exclusively by the manufacturer or distributor for that poison; and

(ii) the approved name of the poison; and

(iii) a statement of the quantity, proportion or strength of the poison in accordance with section 34.

Paracetamol is listed in schedule 2 but not when it is (emphasis added):

… in tablets or capsules each containing 500 mg or less of paracetamol as the only therapeutically active constituent (other than caffeine, phenylephrine and/or guaifenesin or when combined with effervescent agents) when:

 (A) packed in blister or strip packaging or in a container with a child‑resistant closure;

 (B) in a primary pack containing not more than 20 tablets or capsules;

 (C) compliant with the requirements of the required advisory statements for medicine labels;

 (D) not labelled for the treatment of children 6 years of age or less; and

 (E) not labelled for the treatment of children under 12 years of age when combined with caffeine, phenylephrine and/or guaifenesin.

The required advisory statement is set out in Schedule 1, [191] of the Therapeutic Goods (Medicines Advisory Statements) Specification 2021 (Cth). It says the primary pack must have the following printed on it:

Adults: Keep to the recommended dose.  Do not take this medicine for longer than a few days at a time unless advised to by a doctor.

Children and adolescents: Keep to the recommended dose.  Do not give this medicine for longer than 48 hours at a time unless advised to by a doctor.

If an overdose is taken or suspected, ring the Poisons Information Centre (Australia 13 11 26, New Zealand 0800 764 766) or go to hospital straight away even if you feel well because of the risk of delayed, serious liver damage.

Do not take with other products containing paracetamol, unless advised to do so by a doctor or pharmacist.

Ibuprofen is also listed in schedule 2 but not when (emphasis added):

 (i) ibuprofen is the only therapeutically active constituent, other than phenylephrine or when combined with an effervescent agent; and

 (ii) packed in blister or strip packaging or in a container with a child-resistant closure; and

 (iii) in a primary pack containing not more than 25 dosage units; and

 (iv) compliant with the requirements of the required advisory statements for medicine labels; and

 (v) not labelled for the treatment of children 6 years or under; and

 (vi) if combined with phenylephrine—not labelled for the treatment of children under 12 years.

The required advisory statement is set out in Schedule 1, [130] of the Therapeutic Goods (Medicines Advisory Statements) Specification 2021 (Cth). It says the primary pack must have the following printed on it:

• Do not use if you have a stomach ulcer.
• Do not use if you have impaired kidney function.
• Do not use if you have heart failure.
• Do not use if you are allergic to ibuprofen or other anti-inflammatory medicines.
• If you get an allergic reaction, stop taking and see your doctor immediately.
• Unless a doctor has told you to, do not use if you have asthma.
• Unless advised by your doctor or pharmacist, do not use with products containing ibuprofen, aspirin or other anti-inflammatory medicines or with medicines that you are taking regularly.
• Do not use for more than a few days at a time unless a doctor has told you to.  Do not exceed the recommended dose.  Excessive use can be harmful and increase the risk of heart attack, stroke or liver damage.
• Do not use if trying to become pregnant, or during the first 6 months of pregnancy, except on doctor’s advice.  Do not use at all during the last 3 months of pregnancy.
• Ask your doctor or pharmacist before use of the medicine in children suffering from dehydration through diarrhoea and/or vomiting.
• Unless a doctor has told you to, do not use if you are aged 65 years or over.
• Do not use in children 6 years of age or less.

Antihistamines and anti-diarrhoea drugs like Imodium are also schedule 2 medications.

Conclusion

A first aid kit should not contain scheduled drugs including sch 2 and 3 drugs unless the person in charge of the kit has a relevant authority.

It can contain paracetamol or ibuprofen when packed in accordance with the Standard to take them outside the schedule, ie in the case of paracetamol in a box of 20 or less, and for ibuprofen a box of 25 and provided the box carries the appropriate labels.  It follows that if they are not in their primary pack they are not being supplied in a way consistent with the Poisons Standard.  They must be in their primary package to confirm that they are not scheduled drugs and to demonstrate that all the warnings and dosage information are available to anyone who intends to use the drugs to administration the drugs to, or use them in the treatment of, a person. 

I would therefore agree that it is illegal for ‘standard for medication to be stored in the expedition first aid kits in blister packs only, without the original cardboard packaging’.

This blog is made possible with generous financial support from (in alphabetical order) the Australasian College of Paramedicine, the Australian Paramedics Association (NSW), the Australian Paramedics Association (Qld), 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.

This blog is a general discussion of legal principles only.  It is not legal advice. Do not rely on the information here to make decisions regarding your legal position or to make decisions that affect your legal rights or responsibilities. For advice on your particular circumstances always consult an admitted legal practitioner in your state or territory.

Today’s question is about cancelling an ambulance. My correspondent tells me that her adult son:

… became seriously unwell. He had a fever, was delirious and had been vomiting for several days unable to keep even water down.

In a moment of clarity, my son called 000 requesting an ambulance. Whilst he was on the phone to 000, [another person] …  came into the room, took over the call and was easily able to cancel the ambulance by stating “I will take him to the hospital”, which he did not.  

As a result, there was a considerable delay in getting medical care with a tragic and ultimately fatal outcome. I’m asked:

1. Firstly, are there any guidelines set out that 000 call centre operators must adhere to or abide by when a request for an ambulance to be cancelled is made?
2. What criteria must be met before a cancellation can occur?
3. Who decides or authorises a cancellation?
4. If the ambulance is being cancelled by a third party, how do they identify who that third party actually is?
5. Are there any follow ups made if an ambulance is cancelled?
6. And finally, if an ambulance is called by person A and that ambulance is then cancelled by person B and person A dies because they did not receive medical care, who is accountable for person A’s death?

a) The call centre operator who took the call,

b) Person B,

c) Both the call centre operator and person B share accountability,

d) No one is accountable.

I am a lawyer and have been described as a ‘black letter lawyer’, a tag I don’t disagree with.  In essence it means I take a formal view of what constitutes ‘law’ and I look to the legislation and case law and in particular decisions from the superior courts.  There are many other things that regulate behaviour including formal and informal codes of conduct and practice.  Those are not law (though they can be relevant evidence on legal issues) and I have no particular access to those.   What that means is even though I have had a long involvement in this area I cannot answer the first 5 questions. There is no ‘law’ (as I’ve defined it) that addresses those issues; they are matters for the ambulance services and as their control room protocols are not publicly available I cannot comment on them.

I can comment on question 6. 

Person B

In a recent post (Important UK case on liability of emergency services (October 25, 2024)) I discussed the concept of the ‘interference principle’ that is said to be part of the common law of the UK and perhaps Australia. That principle says that there is a legal duty of care where a person ‘has done something which prevents another from protecting [person] B from … danger’.  In the context of today’s question that is the person who took over the call and cancelled the ambulance, thereby stopped, or at least discouraged, the ambulance service from responding and in that context made the situation worse than it would have been had they not intervened.  That would give rise to a relevant duty to provide a reasonable response to the patient’s circumstances.

In an Australian case, R v Taktak (1988) 14 NSWLR 226 the accused, Taktak was charged with manslaughter by criminal negligence. Taktak, himself a drug addict, had taken a woman who was affected by drugs from a party to his home where he, ineffectually, tried to care for her.   Had he left her where she was, she probably would have been found by others and could have expected better care. As it was there was no-one going to provide further help in Taktak’s apartment and she died.  The Court of Criminal Appeal confirmed that a duty of care arose where a person ‘assumed the care of the stranger in such a way as to seclude him or her so as to prevent others from rendering or obtaining aid’.   Where there is a duty to act, a negligent failure to act – an omission – can lead to civil and/or criminal liability.

After deciding Taktak did owe a legal duty to the deceased, the question was whether his conduct amounted to gross negligence to warrant criminal, not just civil liability. In response to questions from police he said:

I threw a jacket over her and a blanket, she smelt a lot, of vomit… I spent a few hours trying to wake her up. But nothing happened she wouldn’t wake up… I slapped her face a couple of times, washed her face with cold water, pumped her chest, gave her mouth to mouth but she wouldn’t wake up.

Readers of this blog, particularly those members of the emergency services (let alone the paramedics) will be aghast at such ineffectual attempts at care and a failure to call triple zero.  But Tatktak was not the sort of person to have done a first aid course, but he tried. Negligence comes in degrees and a high level of negligence is required before a criminal conviction (see Professional discipline after serious criminal conviction – lessons from the UK (January 29, 2018). In Taktak Yeldham J said:

In the present case, although it is clear that a doctor should have been called to the deceased at an early stage, and that (assuming she was then alive) if he had given her the appropriate treatment, she may well not have died, I consider that a finding that the appellant was criminally negligent cannot be supported. Mere negligence or mere inadvertence is not enough…

The appellant himself was a heroin addict. He had no medical knowledge. The time involved, on any view, was short. Plainly he did make some ineffectual attempts to bring her out of her apparent state of unconsciousness. Reasonable care and common prudence demanded that he should have called medical help, notwithstanding the hour of the morning. But to hold that he was criminally negligent, and that such negligence caused or accelerated death, was in my opinion a verdict which was dangerous and unsatisfactory. There was no evidence that the appellant knew the extent of the ingestion by the deceased of any drug or that, if medical help was not obtained for her, she would be likely to die. Nor is there any evidence that he was aware that death, if likely, might have been prevented by the administration of Narcan or any other preparation. Any finding against him on these issues involved at least some guesswork.

In short, Taktak’s actions in taking the deceased into his care gave rise to a duty of care, but his negligence was not sufficiently gross or ‘wicked’ to amount to criminal negligence.

What follows from these cases is that one can infer that by taking the phone and telling the call taker that ‘I will take him to the hospital’ the person who intervened (Person B in my correspondent’s question) came under a duty to take reasonable care of the affected young man but whether the failure to take him to hospital or otherwise seek further care amounted to negligence would depend on all the facts.

The call taker and the ambulance service

Ambulance services owe a duty of care to those that call them (Kent v Griffiths [2001] QB 36) so would owe a duty of care to the caller, but again that is only the first step. One then has to consider whether accepting the advice of the person who intervened, that they would ‘take him to hospital’ meant that it was reasonable not to dispatch an ambulance.

In Alexander v Heise [2001] NSWCA 422 the NSW Court of Appeal considered the potential liability of a doctor’s practice after a patient rang to make an appointment for her husband. She gave some information to the receptionist who made ‘an assessment that the patient’s condition was not life threatening and that he was not in any pain or discomfort. It was perfectly understandable that she would not conclude that it was an urgent problem or that she needed to refer it immediately to Dr Heise’.  There was no breach of duty even though the plaintiff’s husband died the day before his appointment.

Applying the reasoning from Alexander’s case one would infer that the ambulance service, like the medical practice, did owe a duty of care but that relying on the information provided allows the call taker – in Alexander’s case the receptionist, in the case under discussion, the ambulance call taker – to make an assessment.  If they are told by a person who is on the scene (remembering Person B took over the phone call) and who says that an ambulance is not required, and that they will take the patient to hospital then not responding the ambulance might well be a reasonable response.

Other circumstances may not lead to the same conclusion.  If a person makes a separate call to say an ambulance is not required the call taker would have to try and understand where the person making the call is located, are they with the patient? In any case there would have to be some attempt to assess the person making the call, do they sound competent, or do they sound like they are intoxicated, abusive or not taking the situation seriously?  It’s a difficult situation, we don’t want to send emergency ambulances to people who don’t need or want them but on the other hand, we don’t want to not send them when needed.   In Alexander’s case the court spent considerable time considering the information provided and ‘the `guidelines’ in the Royal Australian College of General Practitioners Handbook for Medical Receptionists’ to determine that the receptionists conduct was reasonable in all the circumstances.  Similar matters would need to be considered when deciding whether a decision to accept ‘Person B’s’ assurance that an ambulance was not required was reasonable.

Conclusion

If we return to question 6 (the only question I can answer) it was:

… if an ambulance is called by person A and that ambulance is then cancelled by person B and person A dies because they did not receive medical care, who is accountable for person A’s death?

a)       The call centre operator who took the call,

b)       Person B,

c)       Both the call centre operator and person B share accountability,

d)       No one is accountable.

The answer is (c) ‘Both the call centre operator and person B share accountability’ but that simply means that they are accountable for their decisions, not that they are accountable for, or liable for the outcome. That the ambulance service, the call taker and Person B owed a duty of care to the patient can be accepted.  Whether their conduct was negligent or not depends on much more than the unfortunate and tragic outcome in this case.  A poor outcome does not prove negligence or a lack of reasonable care.   To answer whether anyone is ‘accountable’ (by which I infer my correspondent to mean in some way liable) would require a great deal of more detailed evidence. 

This blog is made possible with generous financial support from (in alphabetical order) the Australasian College of Paramedicine, the Australian Paramedics Association (NSW), the Australian Paramedics Association (Qld), 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.

This blog is a general discussion of legal principles only.  It is not legal advice. Do not rely on the information here to make decisions regarding your legal position or to make decisions that affect your legal rights or responsibilities. For advice on your particular circumstances always consult an admitted legal practitioner in your state or territory.

Tindall v Chief Constable of Thames Valley Police [2024] UKSC 33 is an important, unanimous decision of five judges (Lord Hodge DPSC, Lord Briggs, Lord Leggatt, Lord Burrows and Lady Simler JJSC) sitting as the United Kingdom Supreme Court.  The Supreme Court replaced the House of Lords as the court at the top of the UK judicial hierarchy, so it sits in the equivalent position to the High Court of Australia.  The Australian common law was inherited from the UK.  Even though the law has developed in each country, so the common law of Australia is no longer necessarily the same as the common law in the UK, the principles are not wildly different and decisions from superior courts such as the Supreme Court remain persuasive in Australia.

In this case the Chief Constable was sued after a fatal motor accident.  At 3.40am on 4 March 2014 a Mr Kendall was involved in an accident when he lost control whilst driving over a patch of black ice.  He got out of his car and waved at other vehicles. He said (at [5]) ‘he was trying to encourage them to stop, or at least to slow down, in order to avoid the risk of a further accident’.  He tried to wave down a van but when that did not work, he rang police.  Whilst speaking to the police call taker ‘few more vehicles passed by … but he did not try to stop them as he was engaged on the phone. The call handler asked him to stay on the phone, and he did so, until the police arrived at the scene’ ([64]). Police, ambulance and fire crews attended the scene. Whilst on scene police activated their blue emergency lights and put out a sign advising drivers to proceed slowly ([7]-[9]).  At 5:26am Mr Kendall was transported from the scene by ambulance, the fire service and police packed up including the ‘Police Slow’ sign and left the scene ([11]).

Sometime between 5:45 and 5:52am Mr Bird travelled along the same stretch of road, came across the same patch of black ice and lost control of his car. He crossed onto the wrong side of the road and collided with the vehicle driven by Mr Tindall.  Both Mr Bird and Mr Tindall died ([12]).  Mr Tindall’s widow sued the Chief Constable alleging negligence by the police officers who attended but who took no steps to put in place a warning to other road users or to remain on scene until the roads authority could attend to deal with the ice.

An investigation by the Independent Police Complaints Commission (IPCC) ([14]):

… concluded that the officers had a case to answer for gross negligence manslaughter and misconduct in public office. The case was referred to the Crown Prosecution Service, which decided not to prosecute the officers. Their conduct was, however, the subject of disciplinary proceedings. The police disciplinary tribunal found that PCs Irwin and Flanagan were guilty of misconduct and PC Stamp of gross misconduct. …  The tribunal found, in particular, that there had been errors by the police officers in the discharge of their duty to carry out an investigation at the scene of an accident as trained; and that PC Stamp, without knowing whether a gritter was on its way, should have re­evaluated the situation and done more.

A jury in a coroner’s inquest found (at [15]):

… that the following actions should have been carried out after Mr Kendall’s accident: appropriate signs should have been placed; gritters should have been requested and the police should have stayed at the scene until the gritters arrived; the road should have been closed; and appropriate support should have been requested.

But did that mean the police owed a common law duty of care to Mr Tindall that gave rise to liability to pay damages? The Supreme Court said ‘no’.

The Court’s reasoning

The Court began with this important statement:

It has long been recognised that the tort of negligence draws a fundamental distinction between acts and omissions or, in the more illuminating language adopted in recent years, between making matters worse (or harming) and failing to confer a benefit (or to protect from harm). As a general rule, a person has no common law duty to protect another person from harm or to take care to do so: liability can generally arise only if a person acts in a way which makes another worse off as a result. In recent years this distinction has taken on added significance because it is now firmly established (or re-established) that the liability of public authorities in the tort of negligence to pay compensation is governed by the same principles that apply to private individuals. Many public authorities – notably, protective and rescue services such as the police force and fire brigade – have statutory powers and duties to protect the public from harm. But failure to do so, however blameworthy, does not make the authority liable in the tort of negligence to pay compensation to an injured person unless, applying the same principles, a private individual would have been so liable. That means that to recover such compensation a claimant generally needs to show that the public authority did not just fail to protect the claimant from harm but actually caused harm to the claimant.

The court (at [20]) quoted Michael v Chief Constable of South Wales Police [2015] UKSC 2 [114] where from Lord Toulson said:

It does not follow from the setting up of a protective system from public resources that if it fails to achieve its purpose, through organisational defects or fault on the part of an individual, the public at large should bear the additional burden of compensating a victim for harm caused by the actions of a third party for whose behaviour the state is not responsible. To impose such a burden would be contrary to the ordinary principles of the common law.

The court acknowledged that it can be hard to draw the line between whether the defendant’s conduct has failed to help, or has made the situation worse.  The Court said (at [44]):

The cases show that the relevant comparison is with what would have happened if the defendant had done nothing at all and had never embarked on the activity which has given rise to the claim. The starting point is that the defendant generally owes no common law duty of care to undertake an activity which may result in benefit to another person. So it is only if carrying out the activity makes another person worse off than if the activity had not been undertaken that liability can arise.

The Supreme Court endorsed a legal principle that says there can be exceptions to the rule that there is no duty to protect people from harm.  At [42] they cited ‘… an article by Stelios Tofaris and Sandy Steel, “Negligence liability for omissions and the police” (2016) 75 CLJ 128’ where the authors said:

In the tort of negligence, a person A is not under a duty to take care to prevent harm occurring to person B through a source of danger not created by A unless (i) A has assumed a responsibility to protect B from that danger, (ii) A has done something which prevents another from protecting B from that danger, (iii) A has a special level of control over that source of danger, or (iv) A’s status creates an obligation to protect B from that danger.

The claimant’s case

The claimant argued ([46]) that the police made the situation worse by encouraging Mr Kendall to leave in the ambulance.  If the police had never arrived, he would have remained on scene attempting to warn other drivers of the hazards.  Whilst the police were not there someone was attempting to warn traffic; when police left there was no-one so the risk to other road users was increased by the action of the police.  This, it was argued, was an example of the police having ‘done something which prevents another from protecting B from that danger’ and therefore an exception to the rule that there is no duty to prevent harm.  This is described (at [50]) as the ‘interference principle’ (citing Nicholas McBride and Roderick Bagshaw Tort Law (Pearson, 6th ed, 2018, pp 213-217):

“[I]f A knows or ought to know that B is in need of help to avoid some harm, and A knows or ought to know that he has done something to put off or prevent someone else helping B, then A will owe B a duty to take reasonable steps to give B the help she needs.

The court said (at [56]):

… we consider that the “interference principle” articulated by McBride and Bagshaw is a correct statement of English law… It is simply a particular illustration or manifestation of the duty of care not to make matters worse by acting in a way that creates an unreasonable and reasonably foreseeable risk of physical injury to the claimant. There is no reason in principle why the conduct which creates this risk should not consist in acts which are foreseeably likely to have the effect of putting off or preventing someone else from taking steps to protect the claimant from harm…

They added (at [58]):

… it is not enough to show that the defendant has acted in a way which had the effect of putting off or preventing someone else from helping the claimant. Rather, in line with the well-established approach to establishing any duty of care, for a duty of care to arise it is necessary to show that the defendant knew or ought to have known (ie that it was reasonably foreseeable) that its conduct would have this effect.

In this case Mr Kendall stopped trying to warn others when he rang police and certainly when he agreed to go to hospital by ambulance he may have expected that police would continue to warn others of the risk of ice ([48]).  But the police did not know (as he did not tell them) that he had been trying to warn traffic.  At [62] the court said:

There is no pleaded allegation that the police were aware that, before calling 101, Mr Kendall had been attempting to warn other motorists of the ice hazard. Nor is it alleged that Mr Kendall said anything to the call handler or to any of the police officers who attended the scene of his accident to suggest that he had any intention of making such attempts. Nor are any other facts alleged from which such an intention could reasonably have been inferred… As far as the police were concerned, Mr Kendall was someone who had been injured in an accident and no more than that. He was a victim, not a rescuer.

Because the police did not know, nor ought to have known, that by encouraging Mr Kendall to leave they were ‘doing something to prevent [Mr Kendall] helping [other road users]’ there was no relevant duty of care.

The other exceptions

The other exceptions identified by Tofaris and Steel (quoted above) also did not apply.

Assumption of responsibility

The police did not assume any responsibility to protect Mr Tindall.  At [76] the court said:

The basic stumbling-block for any argument based on assumption of responsibility in this case is the complete absence of any communication or interaction between the police officers who attended the scene of Mr Kendall’s accident and Mr Tindall. The police officers did not say or do anything of which Mr Tindall (or other motorists who drove along the relevant section of road after the police had left) were aware, or on which they could have relied. We find it impossible to see in these circumstances how an assumption of responsibility could be said to arise.

Control

The police may have taken control of the accident scene but that was some 184 meters away from the ice, that is if they took control, they took control where Mr Kendall’s care had come to rest.  At [83]-[84]:

It is not alleged that the police did anything which could on any view be characterised as taking control of the patch of ice which represented the source of danger. On the contrary, one of the criticisms made of the police is precisely that they did nothing at all about that source of danger. They did not cordon off or close the road. There is no suggestion that they even went to inspect the ice. Indeed, a major complaint is that the police were negligent in failing to inspect the ice or take other necessary measures. That cannot be turned around to say that there was a duty of care consequent on their having taken control of the patch of ice.

Counsel for the claimant rightly eschewed reliance on any argument that the existence of a power of control, without an actual exercise of control, is capable of giving rise to a duty of care.

Special status

The police and fire services are established by statute to provide vital public services, but previous cases have established that whatever their status the police do not by virtue of their status owe a relevant duty of care.

Outcome

The outcome was that the police, even if they had been derelict in their duties did not owe a common law duty to Mr Tindall and there was no legal obligation to pay damages.

Implications for Australia

As noted, this case is not binding in Australia but decisions of the UK Supreme Court are persuasive. The finding about no duty to prevent harm, as opposed to a duty not to cause harm or make the situation worse, are consistent with Australian authorities such as Stuart v Kirkland-Veenstra [2009] HCA 15 and Ibrahimi v Commonwealth of Australia [2018] NSWCA 321 (discussed in my post No duty to prevent a disaster and no duty to rescue (December 26, 2018)).

Interestingly it may be that the principles identified by Tofaris and Steel may make their way into explicit statements of Australian law.  The interference principle may have implications for emergency services if we consider the issue of community response and spontaneous volunteers.

Australian emergency services generally have powers to exclude people from areas impacted by emergencies.  It is however common to say that ‘first responders are always local’.  The first people on the scene are those closest to the scene, not the fire brigades, police or ambulance service.  There may be a temptation to direct these people to leave the scene to allow the jurisdictional services to take control, but it would be prudent to consider whether they are doing a good job and whether the emergency services have the capacity to do whatever it is they are doing.  If they are helping, removing them might deny someone assistance that the services cannot provide may be an example of ‘interference’.   That would be true whether they are performing first aid, directing traffic, or conducting a rescue. Of course, if they are an actual hinderance it’s a different matter, but it certainly implies that it is not prudent to assume everyone is a problem and should be removed.

The control issue is also important, and it reminds me or arguments particularly relevant to fire authorities.  Arguments have been made that they are ‘in control’ of the fire (see West v NSW [2014] ACTCA 45; Warragamba Winery v NSW[2012] NSWSC 70) but of course they’re not, they’re in control of the response to the fire but fires, particularly those marked ‘out of control’ are by definition not under the control of anyone thereby decreasing the chance of liability for failing to prevent damage by fire.

Conclusion

This case is not an Australian legal authority but the reasoning is consistent with Australian legal principles and it is likely to be persuasive in Australian law should the right case arise here.  It certainly confirms the principle that the law of negligence does not generally impose a duty on anyone – individual or government authority – to prevent harm from occurring to others. The duty is a duty not to cause harm. Emergency services are rarely the cause of the harm to others so they are under a duty, by their presence, not to make the situation worse. They are not under a legal duty to make it better.

This blog is made possible with generous financial support from (in alphabetical order) the Australasian College of Paramedicine, the Australian Paramedics Association (NSW), the Australian Paramedics Association (Qld), 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.

This blog is a general discussion of legal principles only.  It is not legal advice. Do not rely on the information here to make decisions regarding your legal position or to make decisions that affect your legal rights or responsibilities. For advice on your particular circumstances always consult an admitted legal practitioner in your state or territory.

In Paramedicine Board of Australia v Wylie [2024] QCAT 423 the Queensland Civil and Administrative Tribunal (QCAT) made orders to reprimand a former paramedic and prohibit him from applying for registration for at least 9 months.

The case arose after the paramedic failed a random drug test whilst working at a Queensland coal mine on 9 July 2020. The test was positive for amphetamine and methamphetamine but there was no evidence that he was impaired ([9]).   On 2 September 2020, the Paramedicine Board (‘the Board’) imposed conditions on the paramedic’s registration requiring him to undertake random drug screening, consult a treating practitioner and to undergo a health assessment ([10]).  On 19 October 2020 the Board suspended his registration for failing to comply with the conditions imposed on 2 September.  The paramedic was made aware of his suspension and confirmed he was aware of it in a email to AHPRA on 20 October 2020 ([12]).  The paramedic had commenced a new, casual, job on 6 October. Even though his registration was suspended he continued to work shifts as a paramedic until 30 November ([11] and [13]).

On 17 October 2022 he entered a plea of guilty to a charge of holding himself out to be registered under the Health Practitioner National Law.  He was fined $5000 plus costs in excess of $2300 ([15]).

The first complaint ([7]) before QCAT was that:

… between 20 October and 30 November 2020, the …  respondent practiced as a paramedic and/or knowingly or recklessly claimed to be a registered health practitioner or held himself out to be a registered health practitioner under the National Law in circumstances where the Board suspended his registration on 19 October 2020.

The second allegation ([8]) was that:

… between 8 October and 7 November 2020, the … respondent provided the Australian Health Practitioner Regulation Agency (Ahpra) and/or the Board with false information.

The second allegation related to information provided about his employment.  On 12 and 19 October Ahpra requested details of his practice information and he did not respond. Between 8 October and 7 November 2020 he wrote to Ahpra saying that he was not employed when this was incorrect. The failure to provide the practice information was a breach of the Health Practitioner Regulation National Law s 132 ([17]).

Before QCAT it was agreed that his conduct represented professional misconduct. The Tribunal said (at [23]):

The respondent’s actions …  are plainly conduct substantially below the standard reasonably expected of a registered health practitioner of an equivalent level of training or experience. His conduct, too, in its dishonesty and deliberateness, is inconsistent with him being a fit and proper person to hold registration. The Tribunal is satisfied that the respondent’s conduct contained in the agreed facts, in respect of each of allegations one and two, constitutes professional misconduct as defined by s 5 of the National Law.

The Tribunal was particularly concerned about Mr Wylie’s dishonest answers to the Boad. They said (at [28]):

The Tribunal observed in Psychology Board of Australia v Wakelin …  that, in that case, the practitioner’s dishonest responses to Ahpra in the course of the investigation were, in some respects, a more serious reflection on the practitioner’s character than the underlying conduct…

The Tribunal, in that earlier decision said:

The importance of deterrence of practitioners from any form of deceit in their dealings with their Professional Board deserves emphasis. The Board has limited resources and needs to be able to trust the responses of is practitioners who have a duty to deal with their professional association in good faith. Practitioners must know that serious consequences will follow if they flout that duty …

In this case the Tribunal noted that there was no evidence that ‘… the respondent has developed any significant insight into the perils of his conduct’ ([30]), there had been no explanation offered for any of his conduct ([31]) nor any evidence that he had ‘undertaken education or engaged any other action that might assist the Tribunal to consider he has reflected on his earlier actions and understands that his conduct fell far short of that of a responsible professional person’ ([32]).

The parties agreed that a reprimand was an appropriate sanction. The Tribunal said (at [40]):

The authorities recognise a reprimand is a serious matter for a professional person and is not a trivial penalty.  A reprimand marks, from the perspective of general deterrence in particular, the clear inappropriateness of such conduct to the profession and the broader community.  It is appropriate in this case.

Because he was no longer registered QCAT could not cancel his registration by they did make a further order disqualifying him from applying for registration for 9 months. They said (at [42]):

An order for a disqualification period from the date of these reasons will, as the Board submits, send a clear message that holding out conduct, deliberately providing Ahpra with false information and engaging in overall dishonest conduct is a serious departure from the standards expected of health practitioners and does not align with the National Law and the suitability requirements to hold registration. …

Conclusion

This decision is an important reminder to all paramedics to take their obligations to Ahpra and the Board seriously. In this particular case one might infer it could all have been avoided if he had complied with the conditions first imposed.

This blog is made possible with generous financial support from (in alphabetical order) the Australasian College of Paramedicine, the Australian Paramedics Association (NSW), the Australian Paramedics Association (Qld), 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.

This blog is a general discussion of legal principles only.  It is not legal advice. Do not rely on the information here to make decisions regarding your legal position or to make decisions that affect your legal rights or responsibilities. For advice on your particular circumstances always consult an admitted legal practitioner in your state or territory.

In an earlier post, Doctor as respondent to application for domestic violence order (March 5, 2024) I discussed, hypothetically, the implications that might arise for a health professional the subject of an application for a domestic violence order.

The matter has now arisen in a real-life example of Paramedicine Board of Australia v WYS (Review and Regulation) [2024] VCAT 1012.    The paramedic is identified as WYS to protect the identify of his family.

On 5 January 2020 WYS committed an act of violence toward his wife.  Police were called and he was charged with recklessly causing injury (Crimes Act 1958 (Vic) s 18; maximum penalty 10 years imprisonment) and unlawful assault (Summary Offences Act 1966 (Vic) s 23; maximum penalty 3 months imprisonment).   The matter of recklessly causing injury was withdrawn.  The unlawful assault charge was dealt with by way of diversion out of the criminal justice system.  WYS had to complete a diversion plan, which he did and the charge was dismissed.

WYS was referred to the Victorian Civil and Administrative Tribunal on two complaints:

(1) That the assault on his wife constituted professional misconduct as defined by the Health Practitioner Regulation National Law (Victoria) s 5 that is it was

(a) … conduct that is substantially below the standard reasonably expected of a registered health practitioner of an equivalent level of training or experience; and

(c) conduct of the practitioner, whether occurring in connection with the practice of the health practitioner’s profession or not, that is inconsistent with the practitioner being a fit and proper person to hold registration in the profession.

(2) His failure to report that he had been charged with recklessly causing injury, as required by s 130, was unprofessional conduct, that is ‘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’.

Section 130 of the Health Practitioner Regulation National Law requires a registered health practitioner to notify the Board if he is charged with ‘an offence punishable by 12 months imprisonment or more’.

With respect to domestic violence the Tribunal said the opinion of the Tribunal in Medical Board of Australia v PYP [2021] VCAT 876 applied equally to paramedics.   In that case the Tribunal said:

For a medical practitioner, this kind of conduct is inconsistent, in our view, with the qualities required to be a fit and proper person to hold registration. We highlight the following.

Our community rightly expects that medical practitioners will not commit a crime of this nature. Conduct of this kind impacts on the standing of and the trust that the community holds in the medical profession.

Medical practitioners are and need to be seen by the community as people who are law abiding, trustworthy, safe to be in proximity to, and respectful, including of women.

An offence of this kind has particular resonance for medical practitioners who may be the first point of contact for a person who is themselves a victim of an act of family violence. This is because the public expects that they will be able to provide good medical care for those who are experiencing abuse and violence, as well as to identify and respond appropriately to the perpetrators of same.

At [25] the Tribunal said:

…  given that acts of domestic violence are so inconsistent with the qualities of care, respect and control expected of registered paramedics, that they will frequently lead to a period out of practice being imposed. This is for the purpose of general deterrence – to send a message to the profession and to the community as to the gravity of such conduct.

Notwithstanding that general rule the Tribunal determined that this was an exceptional case and suspension from practice was not required. The Tribunal said (at [26]-[43]):

… there are multiple mitigating factors which in our view, entail that, in accordance with the submission on behalf of WYS, it is not necessary to suspend his registration at all.

The most significant of these is WYS’ clear insight into the causes of his conduct, the implications of it and the protective steps he has taken to avoid it happening in the future.

This springs from his immediate contrition and remorse… From that moment he cooperated fully with the police. After his wife called the police, he waited for them to arrive. He then went to the police station and immediately made full admissions in a police interview. He elaborated on the circumstances, but made a number of statements to the effect that it was his fault, he should not have done it, he was in the wrong, and there is no excuse for what he did. He was then charged with recklessly causing injury and unlawful assault…

The assault caused WYS to take concrete steps to address the situation…

WYS continued to accept full responsibility for his actions and at no time used these stressors as an excuse for his behaviour…

WYS attended a weekly men’s behaviour change program for at least six months over 2020 – 2021, and continued to see his psychologist.

The police were initially not inclined to agree to a Diversion. A key factor which influenced them to change their mind was the statement of 27 April 2021 by WYS’ wife. She described the incident as an isolated one, and as having been a turning point in their relationship for the better. Statements of this type by victims of domestic violence can often be treated with scepticism. However in this instance, the police, and the magistrate accepted it as a genuine and truthful statement, made of her own free will.

The magistrate who ordered the Diversion on 29 June 2021 said, ‘…as bad as what’s happened, there’s no doubt it’s been a very positive thing for you as a father, partner, as a man.’…

Another very significant factor in our consideration is the extent of the delays in this matter coming on for a final hearing. The unfortunate circumstances in which these delays occurred are described above. WYS did not contribute to any of them. The matter has been hanging over his head for four years and 10 months.

This extended delay, without any further issues arising has, however, served to solidify our view that specific deterrence has no role to play here.

In our view, to impose a suspension in all the circumstances, would be punitive. From hearing and observing WYS give evidence, it is clear that the assault he committed on 5 January 2020 has had a major impact on his mindset. It is clear WYS has been on a profound and consequential journey of rehabilitation.

There is no need to deprive the community of the services of WYS as a paramedic, especially where, in the circumstances alluded to in the hearing, he is in a position to make a particularly valuable contribution.

With respect to the failure to report the fact that he had been charged, the Tribunal said ([21]-[22]):

We are satisfied that WYS was unaware of his obligation. While ignorance is no excuse, he did promptly report the fact that he had been charged to his employer, Ambulance Victoria (AV). It was his responsibility to report to the Board by 12 March 2020, but it is unfortunate that he was not advised by AV, or by his union, of his obligation to report to do so.

Further, WYS properly disclosed that the criminal charges had been laid against him, when he completed his application for renewal of his registration on 11 November 2020. So he was not deliberately hiding this from the Board.

Further he was only required to report that he had been charged with the more serious offence or recklessly causing injury and that charge was withdrawn.  WYS had complied with an undertaking not to practice whilst the Board considered whether to take immediate action to suspend his registration. They did not take that action, but it did mean that he did not practice for ‘several’ weeks ([23]).

The Paramedicine Board argued that an appropriate penalty would be to suspend WYS’ registration for six months ([26]). As noted above the Tribunal did not agree and instead that WYS would receive a reprimand, but no further action was required.

Conclusion

As the Tribunal said (at [1]):

Acts of domestic violence are inconsistent with the qualities expected to be displayed by a paramedic. Quite separately from any criminal sentence imposed, they will usually attract an order in professional disciplinary proceedings suspending or cancelling a practitioner’s registration.

The case gives examples of the sort of factors that may avoid those consequences which require immediate acceptance of responsibility, cooperation with authorities, taking positive steps to address underlying issues and, in this case, given the delays sufficient time to show that there is no repeat offending.

This blog is made possible with generous financial support from (in alphabetical order) the Australasian College of Paramedicine, the Australian Paramedics Association (NSW), the Australian Paramedics Association (Qld), 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.

This blog is a general discussion of legal principles only.  It is not legal advice. Do not rely on the information here to make decisions regarding your legal position or to make decisions that affect your legal rights or responsibilities. For advice on your particular circumstances always consult an admitted legal practitioner in your state or territory.

Today’s question isn’t really from today, it was received some time ago but unfortunately was diverted to my spam folder, so I apologise for the unusual delay in responding.  The scenario is:

In 2017 my older brother suffered a cardiac arrest. CPR was administered by family members and later N.S.W. Ambulance officers for a total of 48 minutes at which time a weak pulse was found.

Health professionals at the hospital came to the (almost foregone) conclusion that he would not survive without mechanical assistance due to the lack of brain activity likely due to hypoxia. The family in the meantime had discussed the situation and concluded it was best not to continue the use of mechanical life support aids dependent on medical opinion.

He passed away in under 3 minutes of discontinuation of mechanical respiration.

My following questions pertain to myself and my siblings, all relatively healthy adult ranging from 48-64 years of age:

1: Is it reasonable within current N.S.W. legislation for an otherwise healthy to ask for a DNR?

2: If so would it necessary to discuss this with a GP and draft/submit an ACD (and keep a copy on one’s person)?

3: Subject to the answers to the previous questions, would it also be prudent to wear some form of medic alert jewellery in addition?

My concern is none of us wishes to find themselves in the state my brother was in for an extended period, nor be faced with the decision to end a loved one’s life at a future point.

We will of course all be in that situation one day.  For every one of us, one day our hearts will stop beating and others must make decision whether to try resuscitation or not.  And someone has to make that decision even if the decision is a decision not to resuscitate and to ask health professionals to withhold resuscitation.   The decision is made easier if the person has clearly articulated their wishes and communicated those wishes to their loved ones.

In NSW there is no specific ‘do not resuscitate’ legislation.  You can take whatever steps you want to communicate your wishes and they should be honoured – and see NSW Health Making an Advanced Care Directive (2023).

It would certainly be prudent to speak with a doctor to make sure you are fully informed. Some would say the example you have given is not too bad.  An effort was made to resuscitate your brother but when it was determined there was no good long-term prognosis, treatment was withdrawn with immediate effect.  Many people are resuscitated and recover with no or limited long term deficits, but you cannot know whether that will be you (or the person you are resuscitating) so we have a go and let a final decision be made when a diagnosis and prognosis can be made.  What you don’t want, I suggest, is to be resuscitated and then be left in a vegetative state or worse, conscious of one’s long term, permanent and disabling brain damage.  But, in any case, you don’t know where you will fall on the spectrum.

Speaking to a doctor may help you consider the options, so it is a good idea.  It is also a good idea because if you do write an advanced care direction that says ‘do not resuscitate’ it is more likely to be taken seriously if it is also signed off by a doctor even if that is not legally necessary.

Clear communication will also have important legal issues.  If a person is subject to DNR paperwork and it is clear they are expected to die, when they die at home their treating doctor may write a death certificate.  An undertaker can be called and death is as dignified as it can be.

Where a person has a sudden cardiac arrest people are expected to call an ambulance and police will be notified.   If no-one has commenced CPR and worse, if no-one has called an ambulance, questions will be asked and it’s not inconceivable that there may be inquires as to whether it is appropriate to charge a person with manslaughter by criminal negligence. If the person’s wishes are documented and signed off by their regular doctor, then that would go a long way to showing that the decision not to resuscitate was consistent with the patient’s wishes and therefore not a breach of a legal duty of care (an essential element of negligent manslaughter).

It would be a good idea to wear something, or carry something, to bring a DNR directive to a treating practitioner’s attention. They cannot honour it if they don’t know it exists.  At a recent conference that I attended, medic-alert were promoting their latest jewellery as it carried a QR code that, when scanned, took practitioners to details about the patient including any DNR directives. 

It is worth considering that, regardless of the law, it is almost inevitable that an otherwise healthy person, with no relevant history, who suffers a cardiac arrest is going to be resuscitated. People are trained in CPR and Automatic defibrillators are promoted. Those bystanders who see a person collapse are going to do their best to start CPR without looking for DNR documentation and even if they find it, they will be so uncertain of its effect they will continue CPR until paramedics arrive.

Where the person is in a private home, surrounded by family who are all aware of their wishes then they can make the choice not to resuscitate so that by the time paramedics arrive the chance of survival is much reduced and when presented with a documented advance care directive it can be honoured.

For further information, including posts on medic-alert type jewellery and DNR tattoos, see all the posts that appear here https://australianemergencylaw.com/?s=DNR

This blog is made possible with generous financial support from (in alphabetical order) the Australasian College of Paramedicine, the Australian Paramedics Association (NSW), the Australian Paramedics Association (Qld), 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.

This blog is a general discussion of legal principles only.  It is not legal advice. Do not rely on the information here to make decisions regarding your legal position or to make decisions that affect your legal rights or responsibilities. For advice on your particular circumstances always consult an admitted legal practitioner in your state or territory.

This post began with a question of:

How can a Victorian MICA paramedic refuse to listen to a patient’s wishes not to go to hospital if the patient is fully aware of the consequences and the primary carer/next of kin/eldest child does not want patient to go to hospital? How is this possible?

Further details revealed that a resident of a residential aged care facility (RACF) was in pain. The staff called an ambulance as they were limited to giving paracetamol.   I’m told

Her doctor had made arrangements to see a specialist in the next week. This happened [on a] Saturday. She just needed pain relief for the weekend and her doctor would have seen her in the next couple of days.

Paramedics arrived and recommended transfer to hospital. Both the patient and her son indicated that she did not want to go even though the treating paramedic advised ‘she could die’ but ‘Mum knows this and it’s her right’.

The story continues:

Because I was going off my head as he didn’t care about [the] patient and my decision he got the aged care facility to call the police. I left before they arrived and she must of been given Fentanyl as she cannot remember anything after I left.

The patient was indeed transported to hospital but later discharged herself.

Consent

It has been said on this blog and often that

• The fundamental principle, plain and incontestable, is that every person’s body is inviolate (Collins v Wilcock [1984] 3 All ER 374); and
• … all medical treatment is preceded by the patient’s choice to undergo it (Rogers v Whitaker [1992] HCA 58).

Treatment and transport in the face of a competent patient’s refusal is unlawful and may constitute a tort of assault and/or false imprisonment.

That of course requires an assessment of a patient’s competence. Relevant questions (Re C (adult: refusal of medical treatment) [1994] 1 All ER 819) are:  

• Does the individual have the ability to comprehend, and retain, the information they are given about the treatment (its nature, purposes, and consequences)? 
• Do they have the ability to believe that information? and
• Do they have the ability to weigh the information in the balance, so as to arrive at a choice?

(See also Medical Treatment Planning and Decisions Act 2016 (Vic) s 4 and Mental Health and Wellbeing Act 2022 (Vic) s 87).

Another issue to be considered when considering a person’s stated refusal is ‘are they subject to undue influence?’ (In Re T (Adult: Refusal of Treatment) [1992] EWCA Civ 18).

My correspondent is adamant that ‘mum’ was competent but the paramedics may have determined that they needed him out of the room so they could have a conversation with the patient about her wishes without intervention.

If the patient is not competent

If the patient is not competent then care that is reasonably necessary and in the patient’s best interests can be delivered (In Re F [1990] 2 AC 1).  In Victoria, if a health practitioner (which includes a paramedic) is planning to administer health care to a person who cannot give consent they must obtain consent from a medical decision maker (Medical Treatment Planning and Decisions Act 2016 (Vic) s 58).  The list of potential medical treatment decision makers is set out in s55. They are, first, a person’s appointed medical treatment decision maker. If there is not appointed decision maker a guardian has been appointed by VCAT. If there is not appointed decision maker or guardian, then the following may make a medical treatment decision. The list is in order of priority so it should be worked through until a relevant person is found:

1. The patient’s spouse;
2. The primary carer;
3. An adult child;
4. A parent; then
5. An adult sibling.

That is of course, not relevant if the patient is competent. Where the patient is competent then it is the patient’s decision that is relevant though a patient may take advice or counsel from anyone they like and may benefit from an advocate who can speak on their behalf or assist them to assert their decision.

An appropriate use of ambulance resources?

What is troubling in this story, and which almost pre-ordains the outcome, is that the RACF called an ambulance because they did not have staff that could administer relevant pain medication nor did they have access to a medical practitioner that could assess the patient, make a diagnosis and prescribe treatment.  Presumably the RACF is charging to provide care but is calling upon a state supplied emergency service to fill a gap in its own service provision.

A RACF is required to provide nursing services (Quality of Care Principles 2014, sch 1, item 3.8, made under the Aged Care Act 1997 (Cth)) which include:

Initial assessment and care planning carried out by a nurse practitioner or registered nurse, and ongoing management and evaluation carried out by a nurse practitioner, registered nurse or enrolled nurse acting within their scope of practice.

Nursing services carried out by a nurse practitioner, registered nurse or enrolled nurse, or other professional appropriate to the service (for example, medical practitioner, stoma therapist, speech pathologist, physiotherapist or qualified practitioner from a palliative care team), acting within their scope of practice.

Services may include, but are not limited to, the following:

(a) establishment and supervision of a complex pain management … including monitoring and managing any side effects;

The facility is also required (sch 1, item 2.7) to have in place ‘[a]rrangements for … medical … and other health practitioners to visit care recipients …’  Relying on Ambulance Victoria to fill those gaps on a Saturday night seems, prima facie, to be remiss.

What could the paramedics do?

Ambulance Victoria paramedics cannot prescribe pain relief, they can administer pain relief but only in accordance with their clinical practice guidelines (CPGs).  CPG A0501-1 deals with pain relief.  Relevantly, the CPG identifies options for ‘moderate pain’ and ‘severe pain’.   Paracetamol is a standard drug but it may be supplemented by intravenous (IV) opioids, intranasal (IN) Fentanyl or Ketamine, intramuscular (IV) morphine, or inhaled methoxyflurane.   For severe pain ‘Opioids + Ketamine is the preferred approach to managing severe pain’.  Patients who are:

… managed with methoxyflurane, fentanyl, morphine, or ketamine, require on-going pain assessments as well as monitoring for side effects.

At a minimum, observations must be undertaken and documented every 15 minutes…

Minimum repeat assessments in the context of moderate-to-severe pain include:

• Airway patency
• RR, SpO2, HR, BP
• Sedation Assessment Tool (SAT) Score   

Discussion

I was asked:

How can a Victorian MICA paramedic refuse to listen to a patient’s wishes not to go to hospital if the patient is fully aware of the consequences and the primary carer/next of kin/eldest child does not want patient to go to hospital? How is this possible?

I of course cannot comment on exactly what happened, but I can hazard some thoughts. First, I can imagine, given the scenario described, that the paramedics were concerned for the patient’s welfare. They had been called because the patient was in pain but there was little they could do.  They could administer various drugs but if they administered anything other than paracetamol they were compelled to continue monitoring the patient.  They were not free to administer morphine, or fentanyl (and my correspondent says ‘I didn’t want mum to have Fentanyl’), or ketamine and then leave the patient.

They may have been faced with a patient who indicated she did not want transport, but they also had a person ‘going off’ his head insisting that they do not transport.  The paramedics may have felt that they could not communicate with her, and advise her, with the son in the room.  Once he left, we don’t know what the discussion was but perhaps she did then agree to treatment and transport.

Conclusion

How is this outcome legally possible?   Clearly, I won’t say it was legally permissible, I don’t have enough facts and this is not a place for legal advice.  But I can suggest some factual situations where it would be legal –

• Paramedics are called to a person with unmanaged pain; they have limited options and what is more, from the conversation we can infer that they had genuine concerns for the patient’s safety (hence ‘you might die’).
• A competent patient is free to reject treatment at any time but there may have been a suggestion or fear that they were hearing from the son, rather than the patient so they took steps to ensure that they could have a private conversation with their putative patient
• In that conversation the patient may have decided to accept treatment and transport particularly if the paramedics took the view that they could not administer pain relief and leave the patient because of the need for continual monitoring so it may have been an option of ‘accept pain relief and transport, or there is nothing we can do’.  And given that option she may have given consent.

I don’t know if any of that happened but if it did then one can understand how this outcome was both ‘possible’ and legally justified.

If, on the other hand, the patient maintained her stance that she did not want transport to hospital and was either ignored or overridden by paramedics that would, from a legal perspective, be a very different matter.

What it shows (and what I try to teach law students) is that in most cases the law is not the issue – a competent person can refuse treatment and that must be respected.   What is in issue is the facts. Exactly what happened? Who said what? How was that interpreted and understood? What was ‘reasonable’ in the circumstances?  Answers to those questions cannot be taken from one perspective. Two people in the same room observing the same event may have very different understanding of what happened.  Answering the question ‘what happened’ requires forensic analysis of evidence and listening to everyone involved.  That is not something we can do here.

This blog is made possible with generous financial support from (in alphabetical order) the Australasian College of Paramedicine, the Australian Paramedics Association (NSW), the Australian Paramedics Association (Qld), 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.

This blog is a general discussion of legal principles only.  It is not legal advice. Do not rely on the information here to make decisions regarding your legal position or to make decisions that affect your legal rights or responsibilities. For advice on your particular circumstances always consult an admitted legal practitioner in your state or territory.

In Paramedicine Board of Australia v Vanderberg [2024] QCAT 382 the Queensland Civil and Administrative Tribunal (QCAT) reprimanded a paramedic for performing an episiotomy that was not clinically indicated and that was outside his clinical scope of practice, and also for failing to complete adequate patient care records regarding the treatment of both mother and baby.

In his submissions to QCAT (see [12]) the paramedic said that he thought the baby was distressed and the labour was not progressing. He ‘wrongly thought that a ridge of bunched skin on the baby’s head, which had crowned, was the umbilical cord’ and that the baby’s life was at risk if he did not act.  He acknowledged ‘that his assessments were wrong, the episiotomy was not clinically indicated, he acted outside his scope of practice and he performed the procedure incorrectly causing Patient A harm in the process’.

With respect to the record keeping the allegation was that the paramedic and his partner were at the hospital for over an hour but did not provide a completed electronic Ambulance Report Form (eARF) until 24 hours later.  The paramedic submitted that he observed his partner was completing the eARF.   He said ([12](f)}:

(iv) … they got sent out on a succession of cases which continued until the end of the shift and it was generally not uncommon to be sent away to another case before the paperwork for the then present case had been finished;

(v)      he later learned the eARF for Patient A was submitted the next morning;

(vi)     he admits in accordance with QAS procedures he did not comply with certain obligations concerning the eARF, that he should have reviewed the eARF, especially with respect to the episiotomy entries and he should have signed it and participated in its timely completion. He acknowledges there should have been a separate eARF submitted for the baby and this was not done…

The parties agreed that the paramedic’s conduct represented professional misconduct (with respect to episiotomy) and unprofessional conduct (with respect to the record keeping), that it was appropriate that he be reprimanded, and his registration be subject to conditions regarding further relevant training and supervision.

Although the parties agreed on what they thought was the appropriate outcome it was still up to the Tribunal to decide for itself whether that outcome was appropriate. The Tribunal was not bound by their agreed position but did, ultimately impose the agreed sanctions.

Discussion

The paramedic, Mr Vanderberg was a paramedic of 35 years standing.  He had been a critical care paramedic for 20 years and was the officer in charge of a QAS station.  He was stood down from duty the day after these events and his employment terminated about a year later after internal disciplinary proceedings.  The Paramedicine Board considered taking immediate action to suspend his registration but did not do so, instead accepting his undertaking not to practice until the matters had been resolved. He has therefore not practiced since December 2019.  At [11] we’re told:

On 7 January 2020, the Board notified the respondent it decided to investigate whether the respondent had practiced outside his scope of practice by performing the episiotomy on Patient A and whether his documentation in relation to Patient A was adequate and/or appropriate.  Almost three years later, it determined to refer the respondent to the Tribunal.

It simply beggars’ belief that it took 18 months to ‘decide to investigate’ and then another three years to refer the respondent to the Tribunal.

On one view the entire action, in particular the loss of employment, seems disproportionate.  If the paramedic had been right and had saved the babies life, he would have been a hero.  His actions should be judged in the circumstances he honestly and reasonably believed them to be.   If his diagnosis and response was misguided some further education on how to manage emergency childbirth may have helped. But it is not my decision and I do not know what evidence QAS considered or the basis for their ultimate decision.

Further, the issue was not just that he performed a procedure outside his scope of practice, but that he did it without seeking ‘decision support for his planned treatment pathway of performing the episiotomy via QAS clinical consultation’ ([14](c)(i)) and, further he did not perform it well.  The case report says (at [14](c]):

(ii)      he did not use appropriate sterile equipment;

(iii)     the episiotomy was cut at the wrong angle;

(iv)     Patient A was not administered any or any appropriate pain relief at the time. Patient A’s statement from July 2020 includes that the pain she suffered was the worst ever in her life and that as at that time she was experiencing ongoing issues;

(v)      the resulting laceration was excessively large and caused significant damage to Patient A’s labia and perineum, with tissue being wrongly incised; and

(vi)     the child’s scalp was nicked;

With respect to the eARF, .the Tribunal noted (at [15]):

… the respondent has recognised he should have signed the eARF for Patient A and in doing so reviewed it and contributed content to it concerning the episiotomy, and the eARF was delayed in submission. Further, there was no eARF for the baby. Balanced against this, are the workload which the respondent and his partner had on the day, that the verbal handover was adequate for immediate care purposes, there were no health issues for the baby and the QAS found that a disciplinary charge of failing to complete patient care documentation in a timely manner was not substantiated. Weighing these factors, the Tribunal is satisfied that the respondent’s conduct contained in the agreed facts is properly characterised as unprofessional conduct, that is conduct which is of a lesser standard than might reasonably be expected of him by the public or his professional peers.

The outcome

The Tribunal noted (at [23]):

… the parties have agreed a reprimand, which the authorities recognise is a serious matter for a professional person and is not a trivial penalty.  It accepts the Board’s submissions that a reprimand marks, from the perspective of general deterrence in particular, the clear inappropriateness of such conduct to the profession and the broader community.  That is important in this case because, whilst there was no absence of good faith, the respondent’s actions were very serious, and resulted in actual harm to Patient A and the child.  Even allowing for the fact that obstetric cases are, according to the Board’s expert evidence filed in the proceeding, not a common occurrence for paramedics and there is a high degree of stress involved, it is critical to the public’s confidence in our health system that attending paramedics act in accordance with established procedures, particularly when managing unusual and stressful cases, to ensure the best outcomes possible for patients. Acting within established scope of practice and in accordance with the QAS (or other operative) guidelines helps to achieve this position…

The parties proposed conditions requiring further education and mentoring (25]). The education was to be directed to ‘a paramedic’s permitted scope of practice and record keeping obligations’ (Annexure A, [1]) but not education about managing emergency childbirth.

Given that the paramedic’s employment with QAS was terminated how he might return to practice is unclear and the Queensland community has lost the services of an experienced paramedic with, until this incident, an unblemished record ([8](d)).

This blog is made possible with generous financial support from (in alphabetical order) the Australasian College of Paramedicine, the Australian Paramedics Association (NSW), the Australian Paramedics Association (Qld), 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.

This blog is a general discussion of legal principles only.  It is not legal advice. Do not rely on the information here to make decisions regarding your legal position or to make decisions that affect your legal rights or responsibilities. For advice on your particular circumstances always consult an admitted legal practitioner in your state or territory.

Today I’m asked about:

… the use of prescription cannabis products for healthcare workers in Victoria generally, and for Paramedics specifically.

I’ve spoken with the prescribing doctor and been clear about what I do for a living so she’s suggested dried flower products for evening use because of the rapid onset, distribution, metabolism and excretion. The doctor is hoping this will work for PTSD, depression, insomnia and chronic pain when everything else I’ve tried has been unsuccessful.

Interested in your perspective of the medico-legal situation considering its recent availability and public image.

Medicinal cannabis ‘is pharmaceutical-grade and regulated in Australia with labelled levels of THC and CBD’ that is available upon prescription (see https://www.healthdirect.gov.au/medicinal-cannabis).   

A paramedic must notify the Paramedicine Board if another paramedic is practising their profession ‘whilst intoxicated by alcohol or drugs’ (Health Practitioner Regulation National Law (Victoria) s 140).  Whether one would describe a person as intoxicated or not, if a person is affected by medicinal cannabis, as with any prescription drug, they must be conscious of any side effects and consider whether it affects their ability to work.   A person who practices paramedicine whilst impaired by the effect of drugs, even prescribed drugs, may be guilty of unsatisfactory professional performance, unprofessional conduct and in most extreme cases, professional misconduct.

With respect to driving it is an offence to drive a motor vehicle whilst ‘impaired by a drug’ (Road Safety Act 1986 (Vic) s 49(1)(ba)) or whilst there is any detectable delta-9-tetrahydrocannabinol (THC) in their blood or oral fluid (Road Safety Act 1986 (V(c) ss 49(1)(bb) and 3 definition of ‘prescribed concentration of drugs’ and definition of ‘prescribed illicit drug’).

It can be a defence (s 49(3B)) to an allegation of driving whilst impaired if the defendant

(a) … did not know and could not reasonably have known that the … the prescription drug, … would impair driving if consumed or used in accordance with advice given to him or her by a registered medical practitioner, a dentist or a pharmacist in relation to the drug or combination of drugs; and

(b) …  consumed or used that drug … in accordance with that advice.

It would be difficult to make that argument where the drug includes THC, and the HealthDirect patient information warns agsinst driving whilst taking medicinal cannabis.

That the drug has been prescribed is no defence to the offence of driving with the prescribed concentration of a drug (noting that the prescribed concentration is any detectable amount of THC).

Conclusion

Taking prescribed cannabis should not be a barrier to practice as a health professional provided that, whilst practicing, the practitioner is not impaired or ‘intoxicated’ by the drug.

Taking prescribed cannabis would however be a problem for paramedics, or any one who drives for work, as driving with any detectable amount of THC is an offence, even if the drug has been prescribed.

This blog is made possible with generous financial support from (in alphabetical order) the Australasian College of Paramedicine, the Australian Paramedics Association (NSW), the Australian Paramedics Association (Qld), 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.

This blog is a general discussion of legal principles only.  It is not legal advice. Do not rely on the information here to make decisions regarding your legal position or to make decisions that affect your legal rights or responsibilities. For advice on your particular circumstances always consult an admitted legal practitioner in your state or territory.