Self administration of drugs of dependence by paramedics – future legal and professional considerations.

 (This post is contributed by Ruth Townsend, my friend, colleague at the  ANU College of Law, former paramedic and editor (with Morgan Luck) of Applied Paramedic Law and Ethics, Elsevier Australia, 2012).

The recent case of a paramedic in Victoria being charged with the theft and use of Fentanyl highlights some issues regarding access to restricted in paramedic practice.[i]

Those issues include those related to the legal, ethical and professional obligation to report issues of drug abuse in paramedic practice; the clinical management of patients and more specifically the ethical requirement to provide adequate pain relief to patients, and the potential introduction of mandatory reporting requirements under the Health Practitioner Regulation National Law Act (‘The  National Law Act’) should paramedics become registered health professionals.

The Victorian paramedic case is unlikely to be a lone incident given what we know about criminal behaviour rates amongst the broader population with respect to drugs of dependence. Paramedics are not a special class of persons who would be immune from this behaviour just as doctors and nurses are not. We have some publicly available data on other health practitioners who have access to restricted drugs.  Data from within medicine suggests that drug use amongst doctors is conservatively likely to be around 0.5%.[ii] In a quick and dirty survey of cases heard by the Medical Tribunal of NSW and the Nurses and Midwives Tribunal of NSW, the two health disciplinary bodies with the largest registered numbers of practitioners[iii], between 32-34% of cases heard across the period of 2011/12 related to drug abuse by practitioners- the abuse included self administration, inappropriate prescribing and inadequate administration of pain relief to the patient as a result of the practitioner’s impairment.

It is likely that once paramedics become registered health practitioners and fall under the jurisdiction of the National Law Act, a not dissimilar proportion of paramedics will be sanctioned for the same offences. This assumption is based on the premise that  paramedics have easy access to restricted drugs and an there is an inherent difficulty that exists in monitoring the administration of those drugs to patients because of the environment in which paramedics work.

The cases of the doctors and nurses heard by the respective Tribunals mentioned above, were brought once a complaint had been made to the Australian Health Practitioner Regulation Agency (AHPRA), the agency that is responsible for the administration of registered health practitioners across Australia.  This is the agency that will also regulate paramedics once they become registered. It should be noted that the philosophy underpinning the purpose of the agency (and the associated professional boards), is to regulate health professionals so as to offer protection and minimise risks to the public who are exposed to these health professionals within the health system. Once a complaint is received by the agency, it then refers the complaint to the respective state based professional body for further investigation (eg in NSW it is the Health Care Complaints Commission). One of the benefits of having a national complaints system is that it allows matters such as these to be investigated by an independent body (ie one separate from the organisation in which the practitioner works) and if the evidence suggests that the complaint can be substantiated, the case is then referred to the respective disciplines Tribunal for hearing (eg Nurses Tribunal for nurses, Medical Tribunal for doctors). The Tribunal has the statutory power to remove the practitioner from the register or to place conditions on their registration, all of which is then on the public record and easily able to be viewed by patients, their families, employers and prospective employers.

This transparency is not currently available when it comes to paramedics. Disciplinary proceedings will occur alongside a criminal investigation (which is currently being undertaken in Victoria). The criminal investigation will gather evidence as to the criminal wrongdoing of the accused in accordance with the respective various laws of the State that apply to the storage, recording, administration and supply of restricted drugs. Any disciplinary sanction of the practitioner is a separate issue and currently one that will be determined internally within Ambulance Victoria. However, once paramedics are registered under the National Law Act, specific provisions will ensure that practitioners suffering from an impairment, including a drug addiction, are given an opportunity to be counselled and treated for their impairment rather than being punished for the act (or omissions) that are a result of their impairment. This has been included as a result of experiences in NSW, where the Medical Board recognised that the best way to treat practitioners presenting with these issues was not to punish but rather to encourage the practitioner to seek treatment and rehabilitation.

The self-administration of drugs of dependence is a criminal act and the police, once notified, have a duty to investigate that matter, but it is separate to the professional disciplinary pathway that can be afforded to a registered health practitioner under the National Law Act. The broad objective of the Act is to protect the public from harm, and this may be able to be achieved not by necessarily removing the practitioner from the register (which may be viewed as a punishment) but rather by keeping them in practice by of placing enforceable conditions on the practitioner’s registration (eg limiting their access to drugs of dependence, being subject to urinalysis and mental health treatment) and a giving of an undertaking by the practitioner.[iv]

Notification of Impairment

The way in which Ambulance Victoria became aware of this alleged incident is unclear. It may have been through their auditing process or it may have been via a notification from a member of staff. Once paramedics become registered health practitioners, there will be a legal, mandatory requirement for employers, educational institutions and other registered health practitioners to report ‘notifiable conduct’  to the Australian Health Practitioner Regulation Agency (AHPRA). It should be noted that data from AHPRA shows that the most common way for a complaint to be made about an impaired practitioner behind those made directly by patients, is by other health practitioners. [v]

‘Notifiable conduct’ includes a number of behaviours including that they ‘practised the profession whilst intoxicated by alcohol or drugs’  and/or that they were ‘placing the public at risk of substantial harm in the practice of the profession because the practitioner has an impairment.’ The definition of impairment can be found in section 5 of the Act which says an ‘impairment, in relation to a person, means the person has a physical or mental impairment, disability, condition or disorder (including substance abuse or dependence) that detrimentally affects or is likely to detrimentally affect the person’s capacity to practice the profession or, in the case of student’s, affect their capacity to undertake clinical training.’

When a practitioner has formed a ‘reasonable belief’ that another practitioner is impaired or intoxicated by alcohol or drugs in the workplace, then a report to AHPRA should be made. A ‘reasonable belief’ is not as uncertain as mere suspicion and nor is it as certain as having conclusive evidence. What it is is a view formed by one practitioner or employer or educational institution that another practitioner (or student) is impaired to the point that they may place the public at risk. This risk is not only to the patient with respect to an overt harm caused by an impaired practitioner (ie treating with the wrong drug that causes harm) but also harm related to, like in the case, the failure to administer appropriate levels of pain relief to the patient. This is a particularly important point given that paramedics, who may otherwise have limits to the help they can provide a patient in the pre-hospital environment, can, at least, provide the patient with pain relief. Indeed, in Victoria and the ACT where human rights have been codified, the failure to provide pain relief where it is available to be provided may infringe on the patient’s right to protection from ‘torture and cruel, inhuman or degrading treatment.’ It is, at the very least, unethical to deny a patient pain relief on any basis other than sound clinical reasoning.

These mandatory reporting requirements existed in some states and territories prior to the introduction of the National Law Act and they may already exist within some paramedic service organisations. This policy position is more broadly reflective of the health practitioner’s professional and ethical obligations to put their patient’s interests first and to ensure the maintenance of public safety by health practitioners.