This question was posted as a comment to my earlier post, Volunteering with Advanced Skills (January 18, 2017) but I thought it such a useful question that it warrants a post on it’s own. I’ll break the question up and put comments along the way.
I know that you have responded to many questions that have a common theme and respond with the notion that individuals are likely to be held to the higher skill and a court would more likely question why something wasn’t done rather than why it was.
It’s true that this question, or variations on it, are asked a lot and my answer is ‘if you have skills that you can use for the advantage of the patient, use them’ but that hides many assumptions and subtleties that this post can bring out.
First, my point is not that ‘a court would more likely question why something wasn’t done rather than why it was’ but that a potential plaintiff would. Law is not self-executing. You can do something that’s negligent, or illegal, but legal consequences don’t follow unless legal action is taking. So, let me try to put that in context.
In most of these posts I actually have trouble trying to think of the sort of thing that might arise. Imagine a first aider is on duty with an intensive care paramedic and a registered medical practitioner. They are in a first aid post with a standard first aid kit. What exactly can the paramedic or doctor do that is going to be so different to the first aider in circumstances where it will make a difference? The paramedic and the doctor might know more, so they can intervene if the first aider tells the person who is having a heart attack that they are OK to leave, but what actual skills do people have in mind? And if you can identify skills that they have, that might be called for, and which can be performed in the circumstances, why shouldn’t they do that?
Given I’m not a clinician, let’s make some assumptions. Let me assume that the relevant skill is release of a tension pneumothorax. As I say, it’s a long time since I’ve had to treat a patient so I won’t rely on my understanding of what that involves, instead I’ll rely the advice published on a US Emergency Medical Service (EMS) website – Jim Sideras, Tension Pneumothorax: Identification and treatment (EMS1.com, January 17, 2011). It says
Tension pneumothorax is a life threatening condition that can occur with chest trauma and is more likely to happen with trauma involving an opening in the chest wall.
After discussion about the causes, signs and symptoms and the difference where there is a ‘closed’ or ‘open’ pneumothorax it goes on to discuss when a ‘needle decompression’ is required. For when a needle decompression is the appropriate treatment, it sets out these procedures:
- The following are steps to perform a chest decompression. However, you should follow your own protocols.
- Ensure patient is oxygenated if possible
- Select proper site
- Affected side at the second intercostal space and along the mid-clavicular line
- Note: Draw an imaginary line from the nipple up to the clavicle. The needle should not be closer to the middle of the chest than this line
- Clean site with alcohol or povidine solution
- Prepare needle; if it has a leur-lock or flash chamber, it will need to be removed
- Insert the needle into the second intercostal space at a 90 degree angle to the chest, just over the third rib.
- Note: There are blood vessels running along the bottom of the ribs. Ensure the needle is closer to the top margin of the lower rib in the intercostal space. This will prevent these vessels from being damaged.
- Listen for a rush of exiting air from the needle
- Remove the needle and leave the catheter in place, properly disposing of the needle
- Secure the catheter in place with tape. Some suggest covering the end of the catheter, but this will depend on the situation
- Ensure the tension has been relieved and the patient’s condition improves. If there is no improvement, the procedure will need to be repeated with another needle placed adjacent to the first needle
- Monitor, then reassess the patient
Now let us assume that a patient with a tension pneumothorax has presented to the first aid post and for whatever reason the first aid organisation has not endorsed the ‘scope of practice’ for either our doctor, or paramedic, to perform this procedure even though, let us also assume, they are both familiar with the procedure, experienced in doing it and by some bizarre circumstance, the relevant equipment is to hand.
There are now two options. 1) The patient is treated in accordance with the first aid manual that does not provide for the release of the tension pneumothorax, or 2) the doctor or paramedic, or both, release the tension pneumothorax. Let us assume option (1) and let us also assume she dies and the autopsy reveals that had the pneumothorax been relieved, the injury would not have been life threatening. Now imagine you are a member of her immediate family – her partner, child or parent. How do you react to that news, assuming that you now know that the doctor and paramedic were there. Here is a case where a person came to the first aid post seeking first aid, that is the very service they first aiders, including the doctor and paramedic, were there to provide. The person was vulnerable, in that they were injured, and they turned to the very people who claimed to be there to help and provide care. And two people in that first aid room could have taken action to save her life, but didn’t.
Now imagine scenario (2), the tension pneumothorax is released, the patient is transported to hospital and has a good outcome. Now imagine you are a member of her immediate family – her partner, child or parent. How do you react to that news? With pleasant joy and a letter to the first aid service thanking them for their professional response.
In which scenario are you more likely to get sued? In the first the organisation and the doctor and the paramedic may well have a legal argument – it was beyond our scope of practice and all the patient was promised was a ‘reasonable first aid service’ and that’s all she got. That argument might even win – but in the first scenario, you might have to spend three years in courts arguing the point, in the second you get a pat on the back and a box of chocolates.
My first point, then, is that it’s not so much the court, but the people who are likely to take action, who are going to ask why things were not done, not why were they done. It’s a risk – but if you want to take a risk management perspective the risk must be lower to act than not act.
What will the courts do? The courts will ask ‘was the response reasonable’ that is was there good reason to act, or not act. The reason to act is ‘we were competent, proficient, experienced, knowledgable, had the equipment at hand, knew of the patient’s need and recognised that without intervention the consequences were life threatening’. All good reason to do something.
What is the reason to not act? My agency told me not to do it and that I might not be insured – in other words I want to protect my agency, or myself, not my patient. In a post on his Fire Law blog, on an unrelated matter (Rope Rescue, NFPA Compliance and Liability (January 11, 2017)), US firefighter and lawyer Curt Varone said:
To me it is not a liability issue. We have to stop thinking about things in terms of liability and do things because it is the right thing to do.
I agree with that sentiment. If your focus is ‘I’ll get into trouble’ it’s time to stop volunteering.
But that doesn’t mean that there aren’t very good reasons for not acting. They might be that they don’t have the equipment to hand, that if they release the tension pneumothorax they’ll have to escort the patient to hospital because the attending ambulance crew may not be able to deal with that situation, it may be that the ambulance is in fact only a short distance away and the patient’s condition won’t deteriorate in that time so better to leave it to those that will transport, it may be that the doctor or paramedic are already dealing with other life threatening injuries or multiple casualties and they triage the patient as a lower priority. None of those apply in the story as I told it, but they might and if they did they would be good reason not to act. They can be summed up by ‘if there is a clinical reason that says ‘let’s not do this’ then don’t do it’.
Let’s change the story somewhat. Now assume option (2) that is the paramedic and doctor relieve the tension pneumothorax but for whatever reason the patient still dies. There seems to be some myth that a person can sue whenever there’s a bad outcome. I suppose a person can sue but whether it will go anywhere is a different matter but the reality is that a bad outcome does not mean liability. In any event the patient has died and it’s discovered that the paramedic and doctor acted outside their scope of practice. But so what? It is not the case that if you can prove any default of divergence from procedure liability will be established. The divergence must be relevant (I saw someone suggest once that if you can show a nurse was wearing non-approved footwear, they would be liable and that is of course rubbish), and the plaintiff would have to show it made a difference. In this case they would have to show that the patient would not have died if the paramedic and doctor had not tried to relieve the pneumothorax, so it was their intervention and not the initial injury that caused the death.
Now that might be the case if the person did not have a tension pneumothorax and when trying to relieve it they punctured a blood vessel and the patient bleed to death. But the issue then is not that they did or did not act within their scope of practice, but that they were, or were not, competent.
Here the issue of vicarious liability may be an issue. At common law vicarious liability extends to ensure that an employer is liable for the negligence of is employees. It is not the case that any divergence (go back to the approved footwear comment, above) means that the employer is not liable. Vicarious liability extends to an employee doing an authorised act in an unauthorised way. If relieving a tension pneumothorax was within the practitioner’s scope of practice and they puncture a blood vessel, the employer will be liable. I would suggest that a volunteer doctor or paramedic who is there as a first aider, but who ‘are both familiar with the procedure, experienced in doing it and by some bizarre circumstance, the relevant equipment is to hand’ is still doing an authorised act (providing first aid) in an unauthorised way so I would still expect the employer to be liable.
The situation is not so clear for volunteers. First the volunteer who has watched too much M*A*S*H (Season 5 Episode 8, ‘Mulcahy’s War’ where Radar performs a tracheostomy using a pen knife and a biro) and who decides to ‘have a go’ will certainly be on a ‘frolic of his or her own’. Second, if we take as our example the Civil Liability Act 2002 (NSW) it says (at s 61):
A volunteer does not incur any personal civil liability in respect of any act or omission done or made by the volunteer in good faith when doing community work:
(a) organised by a community organisation, or
(b) as an office holder of a community organisation.
Section 64 goes onto say, however, that
This Part does not confer protection from personal liability on a volunteer in respect of an act or omission of a volunteer if the volunteer knew or ought reasonably to have known that he or she was acting:
(a) outside the scope of the activities authorised by the community organisation concerned, or
(b) contrary to instructions given by the community organisation.
Let us now assume that indeed the doctor or paramedic was sued over the procedure and wants to enjoy protection of s 61. The plaintiff may want to argue that they are not protected by s 61 because of s 64. That may be true. But is that a good reason not to act?
To rely on that, is to say ‘The reason I didn’t relieve the patient’s tension pneumothorax, even though I was ‘familiar with the procedure, experienced in doing it and by some bizarre circumstance, the relevant equipment is to hand’ was because I knew that if I got sued I would not be able to rely on s 61, but if I let the patient die and got sued I could’. That might be true, but is fear that “I’ll stuff this up and get sued’ a good reason not to act? What about “if I stuff this up and get sued I’m on my own, but if I let her die, at least I’ll be legally protected”? Fear that “I’ll stuff this up” is a good reason not to act. If in all the circumstances you think ‘I know what this patient needs but in this setting, in this first aid room, with this lighting, without my usual team about me, I’m not comfortable doing the procedure’ that is a clinical reason not to act. But I don’t think a court would find it ‘reasonable’ to say, again, I was concerned that I would be liable. But let me accept that it is not an illegitimate concern and it does reflect the notion that agencies that use volunteers must be able to set limits on what those volunteers do and don’t do.
Let me now return to my correspondent’s question which goes on to say:
What I query is that this view / opinion tends to send a message that organisational clinical governance frameworks and process (professional recognition, clinical credentialing and issuance of scope of practice etc) are largely superfluous?
To some extent I agree with that. I think the issue is particularly true with registered health professionals and I’m going to include state paramedics in that category even though they are not yet registered health professionals. The critical question will be are the agencies ‘professional recognition, clinical credentialing and issuance of scope of practice etc’ reasonable. A ‘scope of practice’ that says ‘you must act in accordance with, and only in accordance with the first aid manual’ is easy to write and perhaps enforce, but it’s not reasonable.
For registered health professionals it’s a particular problem as they owe duties to their patients as doctors and nurses. If the ‘scope of practice’ of the organisation unreasonably restricts their ability to act professionally, that is in a way that is accepted as appropriate by the profession, then they have a fundamental conflict. If they are not allowed to practice in a professionally responsible way, I would advise them to rethink their volunteering (see ALS Paramedic as Volunteer With St John (WA) (April 5, 2014)).
My correspondent continues:
What if an organisation used a robust clinical credentialing framework to determine the clinical scope of practice of its staff and despite an individual claiming to be qualified / certified in an ‘advanced’ skill(s), the organisation/credentialing process did not include it in their scope of practice?! Hypothetically, where does this leave the individual and organisation.
For a start, we are now assuming that the ‘clinical credentialing framework to determine the clinical scope of practice of its staff’ is ‘robust’ so that it takes into account their professional obligations and the scope of practice of their ‘day job’. In my view the questions I’ve previously answered have not demonstrated a robust scheme so, for example previous comments have dealt with situations where St John Ambulance (WA) tried to limit the practice of ‘a very experienced paramedic, currently working in a remote capacity in remote Western Australia’ (ALS Paramedic as Volunteer With St John (WA) (April 5, 2014)) or Victoria ambulance tried to limit the practice of one of its own paramedics (‘Just Ridiculous’? When is a MICA Paramedic a MICA Paramedic? (March 28, 2013)) or surf lifesaving trying to restrict the practice of a doctor (Doctor as Volunteer Life Saver and Scope of Practice (February 6, 2015)). Other questions involved paramedic fire fighters where again it was at least inferred that there was no real consideration given by the fire service as to what paramedics who were also volunteer fire fighters might do Victorian Paramedic and CFA Volunteer Assisting with Patient Care (August 25, 2016) and NSW Paramedic and Fire Fighter – When Does One Role Start and Finish? (July 8, 2015)).
Those earlier posts have to be read in that context. If the organisation does have a robust scheme that seriously considers what people do in their ‘day job’ and their professional scope of practice then makes determinations based on that, that is a different matter. One would expect that whatever the professional scope of practice (and here I’m talking registered health professionals and paramedics) would apply in their first aid volunteering but again there may be good clinical reasons why it doesn’t. Provided the reasons are based on good clinical governance, not merely convenience and certainly not ‘we’ll all be sued if we let you do that’ then it must be honoured.
As for someone who claims a skill that the credentialing system doesn’t support, that is a different matter. The person who says ‘I have advanced skills because I’ve got this certificate from Dodgy Brothers First Aid doesn’t have to be recognised. If the ‘clinical credentialing framework to determine the clinical scope of practice of its staff’ is ‘robust’ there is presumably some Recognition of Prior Learning policy. So one can ask ‘Is this certificate issued by an RTO or an agency we trust?’ ‘Can the person demonstrate the claimed skills?’ In that case the failure to expand their scope of practice should come with advice that ‘even though you claim to have that skill set, you don’t actually have it’. Now in the questions I’ve answered I’ve accepted the person has the skill set claimed so those answers are different if they don’t.
That is clearly a problem as the person may not know and this is one of the situations where the legal answer is going to depend on the outcome. Let’s return to the patient with a tension pneumothorax and the first aider has a Dodgy Brothers Certificate in pneumothorax treatment. The organisation for which they volunteer has seen it and said ‘that’s rubbish, don’t ever try to do that when on one of our duties’ but here’s the patient in desperate need. We’re still not in a very different position. Dodgy releases the pneumothorax, the patient lives, everyone’s happy. Dodgy doesn’t and the patient dies (remember that law suits against first aiders are virtually unheard of but even so) perhaps the family are upset and they might sue – both Dodgy for not doing it and the organisation for not letting him or her. Answering whether they’d win or not would depend so much on the facts that I can’t make a prediction. Or Dodgy does do it and does a bad job and someone sues.
In this case the organisation is going to want to disown Dodgy and if the organisation can point to a ‘robust’ assessment and communication to Dodgy that he or she really wasn’t skilled that will be much stronger than a non-existent process or a simple rule – ‘when you volunteer with us you apply our teaching and forget what you know’.
To repeat, all of my previous answers have been predicated on the unstated assumption that there is not a ‘robust clinical credentialing framework to determine the clinical scope of practice’. The restrictions that have been imposed have been done due to a misguided legal fear or to avoid paying people for their skills. If the restriction is evidence based, it’s a different story.
What concerns me is that whilst individuals can only work with the equipment provided, some will use the ‘greater good’ argument to supply their own equipment …
That is both fair enough and relates to the discussion above about ‘professional recognition, clinical credentialing and issuance of scope of practice etc’. First, if the person starts bringing their own kit they begin to look like they are on a ‘frolic of their own’ that is they are not volunteering for the agency but in their own right. That could be the case if they start carrying an intubation kit or a kit to release a pneumothorax, it would definitely be the case if they start carrying a drug kit where the lawful authority comes from their status as a registered health professional rather than as a person endorsed by the first aid organisation. If they are ‘on a frolic of their own’ (as the first aider with the pen knife and biro above) then the agency can argue that they are not vicariously liable for any negligence.
And the problem can be dealt with in this way. Whilst an agency can’t tell a person ‘pretend you don’t know what you do know’ they can say ‘this is the kit list, this is what is on the first aid post, this is what you can carry if you have our endorsement but don’t bring ‘stuff’ that isn’t on the list’. In essence if you don’t carry the kit, you don’t have a choice to make. There can’t be a ‘duty’ to carry the equipment to treat every possible injury because a duty of care is not owed to the world at large – it is owed to actual patient’s not potential ones. So the mere fact that it is foreseeable that a person may present to a first aid post with a tension pneumothorax does not impose a duty on the event first aider provider to ensure that there is someone there who can treat it. You might also foresee that you might have patients with the bends but that doesn’t mean you must have a decompression chamber. So the fact that the equipment is not there cannot lead to liability (within reason, there has to be some basic kit that no reasonable first aid organisation would fail to have, but the equipment for relieving a tension pneumothorax probably isn’t on that list).
… and additionally I am concerned (especially with healthcare professionals) that ‘context’ is a large contributor to an individual exercising clinical judgement and undertaking a skill.
Being trained and/or qualified in skills and exercising their judgement in undertaking that skill in their work environment vs in a hostile, minimally resourced mass gathering environ with no similarly or higher skilled clinician for support is a very different shift in context for many clinicians, (I accept for some it will be a comfortable and easy shift but for many (especially doctors and nurses) it’s an unfamiliar one…
That is correct and that is why for example, doctor’s fears of getting sued at an accident are overstated. A registered health professional may well be justified, on a clinical basis, in saying ‘I’d do x if I was in my hospital, but I’m not and I’m not going to try it here’. And that would also be a defence if the injured person (or in extreme cases, the family of the deceased) want to argue ‘you were a doctor you should have done x’ if ‘x’ is what say, an experienced emergency physician might have done, but the doctor in question is a city general practitioner with no emergency experience since leaving medical school. Again, the questions I’ve answered before are predicated on the assumption that the person has the relevant skills in the particular circumstances.
Another issue to address is that what I’ve been talking about are life saving, time critical issues. A doctor who volunteers with St John Ambulance is volunteering to do what doctors with St John ambulance do – first aid. If a person develops a tension pneumothorax and is likely to die within 5 minutes and the ambulance won’t be on scene for 10, acting to relive that is part of providing first aid. If, on the other hand, a patient comes in with a cut leg and the doctor can see it will need stitches and considers that he or she has a suture kit, there is no ‘duty’ to stitch them up. St John practice would be to clean and dress the wound and tell them to go to casualty. They’re not going to die, it’s not going to affect their outcome etc. Where a relevant duty may arise here is if the volunteer first aider says ‘that’ll be right it won’t need a stitch’. The doctor may think that as a St John volunteer it’s not his or her place to give medical advice, but as a doctor it would be reasonable to say ‘no, I think it does need stitches, you should go to casualty’ (or, if you prefer, have a quiet word with the volunteer so they can correct their advice). Again, the doctor can’t not know what he or she knows.
As I said at the start too, I think the situation is mostly hypothetical because it’s difficult to imagine exactly what skill set we are talking about. When volunteering, health professionals, including paramedics, have knowledge and confidence but what other skills do people think they have that they’ll be able to use, that will make a significant difference to the patient outcome, but which the agency for which they volunteer has said they are not to use? And if you’re a registered health professional and you seriously think that if it came down to a matter of life and death the organisation would prefer you to let the patient die than do something that you are qualified and competent to do, you need to rethink your volunteering.
Is anyone going to get sued in these cases? If the patient has a good outcome, no. And in most other cases, no. To go back to my starting point, however, if you are worried about risk, the risk is highest if you don’t do what is in the best interests of the patient.
So, should organisations continue to seek to improve clinical governance or is it irrelevant?
Absolutely, because that is the key. As noted the questions I’ve answered before have implied a failure to have proper clinical governance. If there is a system that considers each case on its merits, not just a blanket ‘This is Kaos First Aid – We don’t do that here’ (for those that remember ‘Get Smart’) then it is much more likely to stand up to scrutiny. But any system is going to be difficult to justify if life saving treatment, or treatment that will avoid permanent and/or significant ongoing disability, is withheld by a person capable of providing it on the basis that ‘my organisation said I couldn’t and I didn’t want to be sued if I stuffed it up’.
For a registered health professional, failing to do what they know needs to be done, and is within their professional scope of practice could lead to professional discipline regardless of the edict from their volunteer agency unless, at least, there is an evidence based clinical reason for a decision to restrict their practice.