An ambulance paramedic, and a follower of this blog, sent me an interesting question.  They asked:

If a paramedic encounters a patient that is deemed to require a treatment that is not specifically covered in a Clinical Practise Guideline, but for which a consult cannot be made to gain authority to undertake the required treatment, where does the paramedic stand legally?

The example given was of a 16 year old patient that presented with severe croup. It was presumed that the patient would benefit from the administration of adrenaline. There is a paediatric guideline covering croup, but not an adult guideline that would cover this patient. Should the paramedic, in this instance, withhold a treatment known to be beneficial in such instances because there is no specific authority to provide that treatment, even knowing that by withholding such treatment the patient will either deteriorate or possibly die?

The conundrum of course is that if the paramedic does nothing in this circumstance and the patient comes to harm, is that an act of negligence? On the other hand, if the paramedic acts outside the documented scope of practise (but is broadly consistent with current medical practise and literature) and the patient comes to harm because of the paramedic’s actions, is this an act of negligence?

There’s no denying that would be a difficult situation for the paramedic to face and there won’t be an answer for every case.

The starting point is that a paramedic is required to provide reasonable care and we would normally say that means apply the treatment in accordance with their protocols.  The risk is that the paramedic may think a patient would benefit from the administration of a drug, such as adrenaline, but how familiar are they with the actual literature or is it an informed assumption?

In Ambulance Service of NSW v Worley [2006] NSWCA 102 an ambulance paramedic administered treatment in accordance with the treatment protocol for anaphylaxis.  Tragically the treatment caused an intracranial haemorrhage with severe consequences for the patient.  An issue was ‘what should the paramedic have understood by the term ‘in extremis’ as used in the protocol?’  The paramedic was held to have been negligent in the District Court but this finding was reversed in the Court of Appeal.   The Appeal Court said, at paragraph 29:

Ambulance officers are not medical practitioners, let alone specialists in emergency medicine. Their training is by no means insignificant, but it does not equip them with the theoretical knowledge which would permit a fine evaluation of alternative treatments.

The trial judge had found that:

“Each officer has a set of protocols. Each set is kept up to date. Each officer is required to follow the requirements of the protocols. There is no discretion to do otherwise.

But, in this case the paramedic administered treatment that the protocol said was to be administered when the patient was ‘in extremis’.  The trial judge took this term to mean ‘on the point of death’.  The officer, he said, was negligent for ‘choosing’ to administer adrenaline without considering whether in fact the patient was ‘at the point of death’.  The Court of Appeal rejected this finding, they said, at paragraph 65, that the Paramedic:

… did not “chose” the mode of administration, or the rate of administration. What he did was to apply Protocols 8 and 201, according to their terms. That course was in accordance with his training and the directions given by the Ambulance Service…

The essence of these conclusions is that the paramedic was expected to administer the treatment set out in the Ambulance Service protocols, they were not trained nor expected or even able to make ‘a fine evaluation of alternative treatments’.

When protocols are written they are written in the knowledge that paramedics will have to administer the treatment and that there may be other cases such as an adult example of croup.  The inference must be that if treatment is not prescribed, it is not intended to apply.  Another example to make the point may be the use of drugs in first aid.  Various drugs are listed in schedules to the Poisons Act (with various names in each State and Territory).  Exemptions are given to allow people such as paramedics, doctors, nurses, members of the ski patrol, occupational first aiders and the like, to use and carry certain drugs.  It is known that the drugs are useful and effective but even so people not exempt are not allowed to carry or use the drug.   A person working remotely may well have the right skills and experience to use a drug but even so, without an exemption they commit an offence by being in possession of the drug, though they could perhaps rely on a defence of ‘necessity’ if they actually used it to save a life.  In any event even though we know there could be a benefit it is not intended that the drug be carried and there could be no negligence for not having it to hand if carrying it were an offence.

In the context of our question if the protocol provides for certain treatment, and the patient falls outside the scope of the protocol there could be no negligence for not giving the particular treatment.  Other treatment, such as resuscitation would be required.  The risk is that the treatment itself carries risks which may not be understood so there could be negligence for giving the treatment that is not prescribed.

On the other hand, if there is a real belief that the patient is going to die, and the treatment even though outside the protocol is the only option, that could be justified.   If the options are ‘either the patient dies or I give this treatment and they may still die, but they may not’ giving the treatment will not cause any harm, if they die that was going to happen anyway, if they do not they are not harmed, so there would be no liability.

Also as noted there is a defence of necessity where the good to be achieved outweighs the harm done and if the matter really is that extreme, a good faith effort to do something is unlikely to be seen as anything other than desirable.  Where there are legislative provisions to protect officers who make decisions in good faith in the performance of their duty, a choice based on an honest and reasonable belief that this was the last option to save a life, would probably be protected on that basis.

The question that really needs to be asked and answered is what harm could the patient suffer if the treatment is given?  As noted if they die, but they were going to die without it, that is not a harm caused by the treatment.  The intracranial haemorrhage in Worley’s case  was a harm caused by the treatment but in that case the treatment was called for by the protocol.   The risk would be the paramedic faced with a patient’s condition deciding to administer adrenaline when not called for and causing that sort of injury, and then the question would be ‘would the patient have been better off if that had not been done?’

In a case relating to fire brigades, the court said, of a doctor who helps at a car accident ‘his only duty as a matter of law is not to make the victim’s condition worse.’ (Capital and Counties v Hampshire County Council [1997] EWCA Civ 3091).   That is what we lawyers call ‘obiter dictum’ that is it was not the essential part of the case (the case was about fire brigades) and it’s not a binding decision in Australia but nevertheless it gives some indication of the law’s thinking.  A doctor and a fire brigade are not under a duty to make things better, only to not make them worse.  If we apply that in this context if the treatment outside the protocol doesn’t make the situation worse then there is no harm done.  Of course if it does make it worse, so for example if the patient with croup could survive the trip to hospital with oxygen therapy and other resuscitation but the treatment causes adverse effects, then there may be negligence.  If it’s a choice between life and death then trying anything is probably better than nothing.  The difficulty is those judgments that have to be made in the heat of the moment will, in the worst case, be judged slowly and deliberately by a number of experts (and in Worley’s case doctors, not paramedics, were called to try and decide whether the paramedic’s actions were reasonable).

Regrettably the legally safe option is to apply the protocol.  In the case discussed in my posting ‘Legal confusion leads to unnecessary deaththe fire chief followed the protocol to the letter, regrettably the patient died and he was criticised by the coroner, but, unlike others, he faced on legal proceedings (see UK Incident controllers charged with manslaughter’). 

It really is a judgement call.  The question I was asked was:

Should the paramedic, in this instance, withhold a treatment known to be beneficial in such instances because there is no specific authority to provide that treatment, even knowing that by withholding such treatment the patient will either deteriorate or possibly die?

I would suggest the best course is to withhold the treatment if all that you are trying to achieve is some benefit.  If, on the other hand, you have tried all the prescribed treatment, the patient is deteriorating and you really are at the stage where there is ‘nothing to lose’ the patient’s going to die without the treatment, and you genuinely believe that the treatment may help (not just ‘let’s suck it and see’) then it’s hard to see how there could be legal implications for administering the treatment.  As I am not a clinician I can’t say or foresee what harm may befall the patient and that will always be the issue.  Did you weigh up the risks v benefits and are you actually qualified and able to make that assessment?

That probably doesn’t help much but that is my understanding of the legal position.

Michael Eburn

2 April 2012.