This question from a paramedic in Queensland was originally posted in response to my post on “The need for a medical director in an ambulance service” but I thought it warranted it’s own post and comments. The question is:
I would like to know if the use of disclaimers used on ARF’s (ambulance report forms) has any legal strength. For example, I have been directed to transport every Patient I attend no matter what the the case involves. If the Patient or their carer does not want to be transported I am then to complete a VIRCA (voluntary refusal without coaxing from family friends etc, informed of their condition and potential for harm no matter how unlikely, reverent to this patient and their condition, the capacity to refuse not effected by drugs of consenting age etc, advise for further treatment such as attend a GP). The use of the VIRCA is now so common in Queensland that paramedics either transport every patient to hospital or deem them to have refused transport and included this disclaimer in the paper work.
I can understand doing this if the Paramedic believes the Patient is at risk, but to do this for every Patient who has the right to stay at home just so the Ambulance service can avoid legal action if the Patient complains at a later date seems over doing it. I all ways thought if a Paramedic was asked to defend their actions some months or even years after the event, they could refer to their report form and then prepare a statement. I am being told that if a case went to court my ambulance report form will be my statement and if I have not documented a VIRCA then I will have breached my duty of care. To me the addition of a disclaimer on every job not requiring transport and the push to transport every patient to hospital is difficult as I am a rural paramedic. I also feel that I am scaring people and transporting case that could be left at home.
In answering this question I’m going to refer to ‘you’ as meaning all ambulance paramedics who have to make decisions, not my correspondent alone.
If a paramedic owes a patient a duty of care, the duty is to act professional, with clinical skill and in the patient’s best interest. The duty is not to complete paperwork. Accordingly advice that “if I have not documented a VIRCA then I will have breached my duty of care” is clearly wrong. What that advice means, if it has come from ambulance management, is “if I have not documented a VIRCA then I will have breached my duty of care” to the ambulance service as you have not given them a record that they can rely on to confuse the situation in some bizarre hope that it will give them a defence to any claim. You do not have a duty to play that game.
Now to the point. If paramedics want to be treated as professionals they have to be willing to act in their patient’s best interests using their clinical skills and experience to help the patient form a judgment as to what that may be. Let us assume that you are called to an elderly person who, after a large family lunch, stood up and felt a bit dizzy. Before she had time to recover a concerned family member has rung triple zero and you are on your way. By the time you get there she’s feeling fine and you do an examination. Let us assume that the patient is conscious, lucid and cooperative. She allows you to take a blood pressure, measure her pulse, blood sugar levels, conduct an ECG and do whatever else it is you need to do and assess her condition. Everything’s fine. Your professional conclusion is that she was sitting down in a warm room, eating a large lunch, she stood up had a mild drop in blood pressure but it’s all good now (remember here that I’m not a clinician so let’s assume that all I’ve said is true and not quibble if I’ve got the science wrong). Let us also assume the patient is in fact compliant and would go with you to hospital if you tell her she should.
If you’re going to act in the patient’s best interests and your professional opinion really is there is nothing wrong then it would not be in the patient’s best interests to transport them to hospital. If you are being asked “to transport every Patient I attend no matter what the case involves” you are neither being asked, or allowed to act as a professional. If you have a duty to the patient it’s in fact a duty not to transport them and that would also be the duty (an ethical not a legal duty) owed to the community, not to tie up the ambulance and the hospital for no good reason.
If you complete the VIRCA (and I’m not sure that that acronym stands for but you’ve said “voluntary refusal without coaxing from family friends etc, informed of their condition and potential for harm no matter how unlikely, reverent to this patient and their condition, the capacity to refuse not effected by drugs of consenting age etc, advise for further treatment such as attend a GP” so I’m assuming you write to that effect on the case sheet) then you’re simply lying and that is not going to help.
Let us assume that ½ hour after you leave, the patient collapses with a heart attack and the family allege negligence for not transporting the patient, but the ambulance service claims that the heart attack was just pure coincidence. At the time you attended there was nothing wrong with the patient warranting treatment or transport but ½ an hour later there was.
That case would turn on the medical evidence about the patient’s condition and whether it was or was not present or detectable when you were there. If you’ve written on your case sheet that you did all sorts of things that you did not do, then the family are going to see that and say to their lawyer ‘that’s not what happened’ and you cannot ‘deem’ the patient to have refused transport, either they have, or they have not refused treatment. Suddenly a case that might have settled is not going to settle because the family and their lawyer is are going to point to the case sheet and say ‘that’s not what happened, the paramedic’s a liar, what have they got to hide?’ and suddenly the case is longer, more complex and unnecessary.
On the other hand, if you’ve recorded your actual clinical findings and your opinion then, as you say if you’re “asked to defend [your] actions some months or even years after the event, [you can] refer to their report form and then prepare a statement” about how and why you formed the opinion you did. And that would support the conclusion that the condition that manifested ½ hour later was not present or detectable at the time.
The reason medical records (or any business record) is accepted as likely to tell the truth, is because it is assumed it is being written to record the truth. Accordingly your case sheet that records your observations and treatment is probably accurate because why wouldn’t it be. If however you start completing forms to say you did or believed various things that you did not believe (such as warning the patient they may face serious adverse consequences if they don’t go to hospital when in fact you don’t believe that at all) will throw into doubt everything you have written.
In short doing something simply so ‘the Ambulance service can avoid legal action if the Patient complains at a later date seems over doing it’ is unlikely to actually achieve that objective, it will just possibly change the nature of the legal action, is unprofessional and unethical. That’s not a criticism of the frontline paramedic but the wrong advice and misunderstanding of what the law requires that is the basis of the advice you are being given.
What follows is if you have received advice that “if I have not documented a VIRCA then I will have breached my duty of care” that advice is wrong.
The mere fact that someone has rung for an ambulance does not mean an ambulance is required, nor does it mean the person who rang should have known that. They are asking for a professional health service and sometimes that service can include advice that treatment is not required, or some other treatment, other than transport to hospital is appropriate. If you have been told ‘you need to transport everyone regardless of your professional opinion’ then I would want to see where that is recorded in your treatment protocols or clinical practice guidelines. Again if it is a mangers interpretation of what the law requires it is again wrong, unethical and unnecessary. Such a policy denies that a paramedic is health care professional, rather it assumes you are an ambulance driver or stretcher bearer and that you cannot be trusted to act in your patient’s best interests.
Michael Eburn.
Australian Emergency Law 
If you follow this blog via RSS feed, facebook, linkedin or twitter you’ll have seen that I published this post three times. Sorry about that; it kept causing the site to crash but I think it’s fixed now. If you are having problems with the site then you probably can’t read this comment, but if you can read it but the site is being a problem, please do let me know – michael.eburn@anu.edu.au.
Perhaps by not following the managers directive I will not breach my duty of care but I would have breached the departments code of ethics. Catch 22
That is indeed the dilemma for every employee who wants to act ethically. I’d be interested to see whether it’s actually written in the code of ethics or a clinical practice guideline or protocol that you must transport everyone regardless of any clinical judgement. If it is, what happens if your called to a malicious call, someone reports Bill Bloggs is having a heart attack, just so you turn up and the caller gets some kick from that. Do you still have to transport Bill Bloggs – even though the call was malicious? Or pretend to advise him of the serious consequences of not going to hospital?
Hi Michael
I have some concerns regarding this post as to the accuracy of the paramedics statements.
First, the QAS does not require a VIRCA to be completed for every non-transport case. If the patient does not need treatment or transport to hospital then the ambulance report should reflect that with a significant history and assessment.
A VIRCA is designed and written for those patients that should, in the opinion and assessment by the paramedic, go to hospital, but are refusing to be transported to hospital.
The VIRCA is a tool for use by the paramedic which encompasses, V=Voluntary choice, I=informed of risks, R=relevant to the condition at present, C=capacity or understanding of the decision, A=Advice on treatment at home and to recall ambulance. (This is an abbreviated version)
So the VIRCA is for those patients REFUSING to go to hospital against the advice of the paramedic.
I have never heard of any manager stating that a VIRCA should be completed to provide protection for the ambulance service. It has been stated that can be used to provide some protection for the paramedic when the patient refuses.
The ambulance report is as important in the care of the patient as is administering oxygen or inserting an IV. It is a comprehensive, legal document recording the care provided to that patient. It should be completed as carefully and with as much pride as one has when finding and cannulating a tiny vein in the critically ill patient.
Whilst it may not meet the legal definition of ‘duty of care’ I would beg to differ that a paramedic has a duty of care to complete this important document to ensure that all medical information and treatments are readily available to the receiving medical facility. If we had administered 20mg Morphine and not documented it, the hospital gave further morphine and the patient became narcotised due to this, then that would be not be in the best interests of the patient.
An important consideration is that paramedics can not diagnose a patient. Despite degrees and years of experience, a paramedic does not have the medical knowledge or experience to make a definitive diagnosis of any patient. We do not have at our disposal the myriad of diagnostic tools, (CT scans, x-rays, blood tests etc) to make that decision. We can make an educated guess or a provisional diagnosis, but not a conclusive one. Due to this fact, there have been mistakes made by paramedics leaving patients behind with serious consequences. Therefore in the best interest of the patient, it is wise to transport to a hospital or a doctors surgery for a professional medical opinion.
To sum up, do I transport every patient to hospital. No. But I do complete a VIRCA as per the guidelines when necessary.
Regards
Dave
David, thanks very much for that comment, the explanation of the VICRA. I did doubt that any ambulance service would formally suggest that all patients are transported, hence my comment “I’d be interested to see whether it’s actually written in the code of ethics or a clinical practice guideline or protocol that you must transport everyone regardless of any clinical judgement” so thank you for that clarification.
I would also say I agree with everything you said about the patient record, and the importance of completing it for the purposes of ensuring continuity of care. For the record to have any value to anyone it has to be complete and accurate and indeed it does form part of the paramedics duty to complete that record. What I said or meant to say is that there is no duty to complete a VICRA for every patient.
It is also correct that in most cases, “it is wise to transport to a hospital or a doctors surgery for a professional medical opinion” so certainly if the paramedic is of the view that the patient has or may have a genuine medical condition they should seek to encourage the person to get further advice. I suggest that there is room for professional judgement and paramedics should develop their profession to allow them to be trusted to make real assessments about whether patients require transport to an emergency room or to be referred to their own doctor.
Michael Eburn
The situation in VIC is much the same, but making the ‘right’ choice in regards to documentation is confusing, as is the advice given by management and clinical educators. Here, transport can be ‘refused’ or ‘declined’, and our documentation can be signed by the patient for both options. A short blurb appears for the patient to read and agree to before they sign.
I was initially told that your patient care record/paperwork is a legal document, and so you document what happened and the clinical information, your reasoning for not transporting the patient if that is the case, etc. I was told that you should get patients to sign if they are refusing against medical advice. This was described to me with an example of a patient with severe chest pain, possibly having a myocardial infarction, who is of sound mind and refuses for whatever reason to come to hospital. This is a situation where you expect them to deteriorate or possibly have an adverse outcome so you get them to sign as further evidence that you tried your best.
It has only been recently that I’ve been advised that ALL patients left at home should sign, either ‘refusing’ or ‘declining’ transport. I’ve been told that my documentation on its own is essentially worthless if a patient or family member was to challenge any of the assessment or information within it, even if my partner can back me up on the details. I’m not sure if by ‘worthless’ they meant not significant in court, or just that if a patient happens to sign and then complain, management can refer them back to their own signed statement.
G
Your clinical record is a ‘business record’. It is assumed that what you record is true and so you can rely on the document to prove that what is recorded actually happened. You should therefore take great care to record what you observe, what you do and your professional opinion of the situation. (For a further discussion on the use of records, see my post on Lithgow Council v Jackson [2011] HCA 36.) Certainly if the patient is refusing transport, that is you actually think they should go but they won’t their signature helps to confirm that they have actively refused treatment.
I don’t agree that “ALL patients left at home should sign, either ‘refusing’ or ‘declining’ transport” because that implies that you (the treating paramedic, not ‘you’ personally) think they all should be transported. It in fact should also be your option to decline to offer transport, that at least if paramedics are true professionals.
I’m not sure what people mean by ‘worthless’. If you’ve recorded what you did, observed and concluded that is evidence that those things are true. It is not incontrovertible evidence, it can be challenged. A party could bring evidence to show you didn’t really do or say what’s on your case sheet. That’s also true of the notes that the patient has signed. The case sheet is not a ‘binding contract’ but if you have a note that says something like “I have been advised that I should go to hospital but I refuse to go” and it’s signed, then that is something that has to be explained. If someone later says “the paramedic refused to take me” they will be cross examined on that signed note, but that’s about as far as it goes.
Consider that an organisation does not want to invest in continually maintaining the education of their staff to meet the ever changing requirements of medicine and health professionals. How does an organisation address this? Maybe they encourage patients to be transported to an organisation where the staff are up to date as per their registration requirements. Therefore if paramedics do not identify something, no harm because they have transported the patient to hospital and they will identify it there.
By this not only is the Ambulance Service Provider (ASP) protected by the limited education opportunities by all patients transported to hospital but there is a financial gain as well. A patient with a visit costs about $300. Transport increases that to something like $800, plus any treatment. Intensive Care Paramedics a higher fee and aeromedical support higher again. So maybe your organisation wants to increase their revenue. However this is beginning to backfire with every frivolous case that is taken to an emergency department takes up either a seat in the waiting room and/or a cubicle in the department. With each of these taken up the more ED resources that are utilised which then increases the chances of the next ambulance being ramped or waiting to handover because the department is full. Hence paramedics may actually be causing the hospital/ambulance ramping that we are all complaining about.
In addition, if paramedics transport every patient to hospital irrespective of the acuity, what does this teach the public. If a patient calls an Ambulance because they have consumed a little to much alcohol and the paramedic transports the patient to hospital, how does the public see this? The public and the patient see a Paramedic, a health professional who is the most respected in Australia, transport this intoxicated patient to hospital. That must mean that every intoxicated patient must go to hospital. Therefore paramedics are actually teaching the public by transporting every patient irrespective of the severity, that those patients need an ambulance called and be transported to hospital.
Some have said to ASPs that it is their responsibility to maintain the skills and knowledge of paramedics. Though ASPs would reply stating that it is the paramedics own professionalism to maintain their currency. Other professions are paid an amount within their wage to undertake this and maintain their registration. To help address the aforementioned concerns in the above post and the issues I have highlighted above more paramedics need to petition to the federal government for paramedics to be a registered profession. Go to https://www.paramedics.org.au/category/registration-2/ for more info.
Maybe paramedics need to show their professionalism by appropriately assessing, educating, treating/referring, transport as our objective clinical judgement sees fit.