This question comes from a volunteer sports trainer for a local club. My correspondent writes:
The [organisation for which I volunteer] recently outsourced their training and qualifications to a private first aid company’s. I recently upgraded my qualification to a level 2 trainer. During this training we have been shown how to insert advanced airways called i-gel. This training took less than an hour. I have since spoken to a number of paramedics from two different states who both tell me that, as paramedics, they were taught to use these over a number of months. They provided the advice not to use them unless I had oxygen and suction as problems can happen. Clubs across Australia generally don’t have oxygen and suction due to cost and laws about storage. I called the person within the organisation who looks after sports trainers and was told there was no policy to allow me to use them. So I’m confused, as I have been shown as part of my first aid training, and I use them in the setting of the organisation, can I be held liable as I have been given the training as part of a first aid qualification. I’m trying to do the right thing any advice would be appreciated.
This is quite a complex question and turns more on the science and the facts than it does the law.
To get a handle on the facts I looked at the i-gel product information. According to the manufacturer, the i-gel is a ‘supraglottic airway’ that ‘has changed the face of airway management and is now widely used in anaesthesia and resuscitation across the globe’ (http://www.intersurgical.com.au/info/i-gel). Further (at http://www.intersurgical.com.au/info/i-gel-emergency-medicine):
The i-gel O2 has been designed to facilitate ventilation as part of standard resuscitation protocols… However, the i-gel O2 incorporates a supplementary oxygen port, so it can also be used for the delivery of passive oxygenation, or Passive Airway Management (PAMTM), as part of an appropriate CardioCerebral Resuscitation (CCR) protocol.
I infer from that that the if the i-gel is used ‘as part of standard resuscitation’ but the optional i-gel 02 provides for ‘supplementary oxygen’ that, at least according to the manufacturer, oxygen is not necessary when using the i-gel.
The manufacturer provides links to evidence to support the use of the i-gel airway (http://www.intersurgical.com/info/resuscitation-evidence). The Australian Resuscitation Council talks about the i-gel in guidelines published for Advanced Life Support (not basic first aid). The ARC says in Guideline 11.6 – Equipment and Techniques in Adult Advanced Life Support – January 2016 (emphasis added):
2.3 Advanced airway devices
The endotracheal tube has generally been considered the optimal method of managing the airway during cardiac arrest. There is evidence that without adequate training and experience, the incidence of complications, such as unrecognized oesophageal intubation, is unacceptably high. Alternatives to the tracheal tube that have been studied during CPR include the bag-valve mask device and advanced airway devices such as the laryngeal mask airway (LMA), i-gel, laryngeal tube, and oesophageal-tracheal combitube (Combitube).
There is insufficient data to support the routine use of any specific approach to airway management during cardiac arrest.
And later in [2.4]
Supraglottic airway (SGA) devices (e.g. LMA, Laryngeal tube, i-gel, Combitube) are generally considered easier to insert than tracheal tubes. They can be inserted without interrupting chest compressions, and their use in cardiac arrest has been increasing. Ten studies have compared a variety of SGA devices with the tracheal tube during out of hospital cardiac arrest… There is insufficient data to support the routine use of any specific approach to airway management during cardiac arrest.
ANZCOR suggests using either a supraglottic airway or tracheal tube as the initial advanced airway during CPR for cardiac arrest in any setting….
Values and Preferences
In the absence of sufficient data obtained from studies of IHCA, it is necessary to extrapolate from data derived from OHCA. The type of airway used should depend on the skills and training of the healthcare provider. Tracheal intubation requires considerably more training and practice. Attempted tracheal intubation may result in unrecognised oesophageal intubation and increased hands-off time in comparison with insertion of an SGA. Both an SGA and tracheal tube are frequently used in the same patients as part of a stepwise approach to airway management.
What I infer from that is that an airway such as the i-gel is easier to use and requires less training than tracheal intubation but it is still an advanced skill. There is no clear data that leads the resuscitation council to recommend either the use, or non-use, of the i-gel airway. What airway is preferred ‘should depend on the skills and training of the healthcare provider’.
I don’t know what sort of skills a ‘level 2 trainer’ is meant to have, who sets the syllabus for their training and whether they are expected to provide advanced life support over basic first aid. As noted before however, this area is largely unregulated. There is no hard ‘law’ (ie an Act of Parliament) about who can do what. A person can use an i-gel airway (or any other sort of airway) if they know how to use it including the indications, and contra-indications, for use.
If an airway is used and if it causes complications or an adverse outcome for the patient, and if the patient sought a remedy for that use the question would be whether or not the person who used the airway took reasonable care. The question of what is reasonable depends on all the circumstances but it is not answered by asking ‘did they perform as trained?’ or ‘were they acting in good faith?’ (see Vicarious liability for the actions of fire wardens (March 5, 2016)).
My correspondent has done the training that the sports organisation asks of a level 2 trainer and the training included the use of the i-gel airway. If the advice from the paramedics is correct, that is that their training took a number of months and that the airway should not be used without a supply of 02 and suction then it may be that the training was not appropriate. To answer that one would need to look at the science and the pedagogy behind the training and the syllabus. Let us assume for the sake of the argument that the training was inadequate and that my correspondent uses the airway and causes injury because there is no 02 supply or he or she fails to recognize that the airway is not working as intended.
The patient (who of course has no choice in who treats them in an emergency) would be able to say that the care they received was not ‘reasonable’. The hypothetical reasonable person properly trained in the use of the airway would not have done what was done and in that case they would not have suffered the damage. In that case there could be liability (but the question of who is liable is something I’ll turn to, below).
Assume, on the other hand the training was just fine (perhaps the paramedics were trained in the use of the i-gel 02, or just got further advanced training, or perhaps the training regime has changed, or they thought my correspondent meant intubation instead of an SGA device, who knows). In that case if my correspondent uses the device as trained there will be no liability as there is no negligence even if there is an adverse outcome.
Who is liable?
My correspondent says that the organisation for which they volunteer have advised that there is ‘no policy … to allow me to use them’ but I infer from that they did not say there is a policy that prohibits their use. I infer that the organisations policies are simply silent on the matter. But of course they’re not silent, my correspondent went to training arranged by the organisation and that training, I’m told, included the use of the i-gel airway.
My correspondent has said that the role of a trainer is a volunteer role and let me assume that the sporting organisation involved meets the definition of a ‘community organisation’ (Civil Liability Act 2002 (NSW) s 60). In that case the volunteer is not personally liable for any action done in the good faith performance of his or her duties (s 61). It follows that if my correspondent uses the airway in the course of his or her duties then he or she is performing those volunteer duties and provided the action is ‘in good faith’ that is an honest attempt to perform as trained to benefit the person in need, there will be no personal liability even if the treatment is substandard and even if that is because the training was poor.
Will the organisation be liable if the volunteer trainer was negligent? In all jurisdictions other than in NSW the answer would be ‘yes’ (Civil Law (Wrongs) Act 2002 (ACT) s 9; Personal Injuries (Liabilities and Damages) Act 2003 (NT) s 7; Volunteers Protection Act 2001 (SA) s 5; Civil Liability Act 2002 (Tas) s 48; Wrongs Act 1958 (Vic) s 37; Volunteers and Food and Other Donors (Protection from Liability) Act 2002 (WA) s 7). New South Wales has the Civil Liability Act 2002 (NSW) s 3C. This is a unique section that says:
Any provision of this Act that excludes or limits the civil liability of a person for a tort also operates to exclude or limit the vicarious liability of another person for that tort.
What that implies is that if a volunteer, in this case the trainer, can rely on s 61 to say that there is no liability for the good faith performance by a volunteer of their volunteer duties, then the organisation for which they volunteer is also able to rely on that to say that they are not vicariously liable. The way around that is that an injured person would argue that they are not saying the volunteer was negligent, but that the sporting or community organisation negligent for not ensuring that the person was appropriately trained, that the training was appropriate, that the person was actually up to the task etc. It may be a bit of a fiction but in the right case if there really was a person who was injured because of the poor performance of a volunteer (either because they failed to apply the skills or their training was inadequate to start with) then I’m sure a judge would find a way to say that it was the organisation was negligent in its own right and still award damages. The outcome is the same by either route, albeit more complex and less certain in NSW, and that is that it would be the community organisation that would be liable if there was negligence.
The Civil Liability Act 2002 (Qld) does not say whether a community organisation is or is not liable when a volunteer is protected but I would infer from the common law principles that in the absence of a section like s 3C, the organisation would be liable.
Remember that if there is no negligence, the training was appropriate and the skills are correctly applied, then there is no liability even if there is a poor outcome.
My correspondent’s question was ‘can I be held liable as I have been given the training as part of a first aid qualification’ and I would add the inference that it was part of a first aid qualification that the organisation for which he or she volunteers required. In those circumstances my answer would be that if the person applies that training and does so in ‘good faith’ (genuinely trying to help) then it will be the organisation for which they volunteer that is liable should the treatment be negligently applied and should that cause a poor outcome. Remember of course that if a person needs resuscitation, a poor outcome is on the cards and a poor outcome does not prove negligence (see The risk of liability for performing emergency CPR is overstated – even in the USA (October 7, 2015) and CPR success: TV v Reality (September 3, 2015)).