Today’s question comes from a paramedic who:
In the past … worked for a state ambulance service, but now I’m working for a private company contracted to provide paramedical services. There is currently no clinical training program for new employees as (I’m told) the company is only recruiting ‘experienced’ paramedics. I am now working with equipment and medications that I have never used before, but my entire scope of practice and all clinical skills appear to be considered ‘assumed knowledge’. Without an appropriate clinical education/training program, I am concerned about my lack of knowledge and inevitable deterioration of clinical skills. If I was to provide someone with emergency medical care, and it was found that the level of care was not at the expected standard, who would be held liable?
Assuming we’re talking about providing care whilst at work, the answer is ‘your employer’.
My original answer ended there because I wanted to make the point that the answer is clear and unambiguous. But let me now add some meat to those bones.
Firstly the employer will be liable because an employer is vicariously liable for the torts (negligence) of the employee. The employer, in this case the private paramedic company, is holding itself out as providing a service. It gets the economic benefit (ie it gets paid) for those services so it should take the risk. The point behind personal injuries compensation law is to ensure that the person who gets injured due to poor service is compensated and that can only happen if the entity that can afford to pay, and which earns the income, is the entity obliged to pay. If there was no vicarious liability the risk would fall to the injured patient or the employee, neither of which could afford the cost and the employer who would receive all the benefit would not pay any of the costs.
Whilst a jurisprudentially pure theory is impossible to come by, it is the case that an employer is liable for the torts of the employee. Relevantly in this case are the words of Justice McLachlin of the Supreme Court of Canada, who said in Bazley v Curry  2 SCR 534 (quoted in turn by Gleeson CJ, Gaudron, Gummow, Kirby and Hayne JJ of the High Court of Australia in Hollis v Vabu Pty Ltd (2001) 207 CLR 21 at ):
Fixing the employer with responsibility for the employee’s wrongful act, even where the employer is not negligent, may have a deterrent effect. Employers are often in a position to reduce accidents and intentional wrongs by efficient organization and supervision…
Holding the employer vicariously liable for the wrongs of its employee may encourage the employer to take such steps, and hence, reduce the risk of future harm. A related consideration raised by Fleming is that by holding the employer liable, ‘the law furnishes an incentive to discipline servants guilty of wrongdoing’.
If my correspondent fails to provide reasonable care to patients it is the employer that is in the position ‘to reduce accidents and intentional wrongs by efficient organisation and supervision’ and by ongoing training, procedures etc. In that case it is the employer that is and should be, liable for any sub-standard performance.
The company cannot avoid that liability by simply setting standards and then expecting employees to comply. To refer to a comment on my, original, short post it is not the case that the employer can avoid, or shift liability by some argument that ‘the employee acted outside our guidelines’. Vicarious liability extends to doing authorised acts (providing patient care) in an unauthorised way (New South Wales v Lepore (2003) 212 CLR 511). An employer cannot avoid it by having a rule that says ‘don’t be negligent’ as that would defeat the rule. It can only apply when there is negligence that is when the employee has acted outside guidelines or rules or procedures. If it didn’t apply then, it would never apply.
Apart from vicarious liability, the paramedic company also owes a duty of care to its patient’s and those that contract with it to provide services. It has to provide ‘reasonable’ care. If it fails to have quality assurance procedures then it has failed to act as the reasonable paramedic service provider and can be liable in its own right.
In either case, the employer is liable.
Will paramedic registration make a difference?
It might. It won’t affect vicarious liability. Employers are liable for the negligence of employed doctors and nurses and will also be vicariously liable for the negligence of employed paramedics.
Registration will add a professional responsibility on the paramedic that won’t sound in liability for damages but could have personal consequences. This is a two edged sword. If I can borrow from the Nursing and Midwifery Board of Australia Standards for Practice: Enrolled Nurses 1 January 2016 it says (amongst other things) that an EN:
1.6 Recognises own limitations in practice and competence and seeks guidance … and help as necessary.
1.7 Refrains from undertaking activities where competence has not been demonstrated and appropriate education, training and experience has not been undertaken.
1.8 Acts to ensure safe outcomes for others by recognising the need to protect people and reporting the risk of potential for harm.
If there is something similar in the ultimate Paramedic Code of Practice then my correspondent would have an obligation to take it up with the employer and ensure that they get the necessary training etc. If not there may be added industrial strength if the registered paramedics can refuse to operate in that environment, in which case unless the company provides better clinical governance they won’t be able to operate.
The alternative is that the employer will seek to require the paramedics to self-fund their own training and CPD in order to meet their professional obligations. To quote from another comment on the short version of this answer ‘Everyone I know as a private paramedic are always training or learning. It is also tax deductible.’ It may be that professional registration will open the door for employers to shift training costs. How that works in practice, and who has the industrial strength, remains to be seen.
Finally, and again to quote from a comment, it was said ‘Your company WILL have a medical director and there WILL be a clinical practice guide available’. That is not axiomatically true (see The need for a medical director in an ambulance service (May 4, 2013)). Paramedicine remains unregulated in most of Australia. In any state I could set up a private service, even in NSW where it appears most strongly regulated, the rule that says one can’t provide a private ambulance service has been ignored. Writing in 2010 Jason Bendall and I identified at least 10 private providers and, at the time an FOI request to the Department of Health had confirmed that no approvals had been given under the Health Services Act 1997 (NSW) to allow those operations (see Eburn, M. and Bendall, J., ‘The provision of Ambulance Services in Australia: a legal argument for the national registration of paramedics’ (2010) 8(4) Australasian Journal of Paramedicine Article 4).
Today, in NSW, Tasmania and South Australia, a practitioner cannot not use the title ‘paramedic’ unless they meet the requirements in those states. And in all states practitioners and private providers cannot use scheduled drugs without an approval from the relevant department of health and that approval may, in turn, impose an obligation for clinical protocols and supervision, but that could be avoided by provided a service that does not include the use of scheduled drugs. One might argue that is a sub-standard service, but given the description from my correspondent, one might infer that ‘high quality’ is not a concern for this employer.
When I first answered this post I said:
Assuming we’re talking about providing care whilst at work, the answer is ‘your employer’.
I’ve now given some more details, but that remains the answer.
You will find that being in private practice, we are not spoon fed training (like most government jobs) It is however, expected to have our own documented professional development each year (same goes for nursing) If is an unwise and frowned upon move to administer any medication you have no experience with…some would say negligent. I have International registration from some of the countries I work in (whilst Australia is re-inventing the wheel). Your company WILL have a medical director and there WILL be a clinical practice guide available. Everyone I know as a private paramedic are always training or learning. It is also tax deductible.
That must be the shortest blog on record Michael! Short, sharp and succinct!
If something does go wrong and your employer says ‘the employee acted outside our guidelines’, can the employee then be held liable personally?
Sorry Sarah, for some reason I’ve only just seen this comment/question. The answer is ‘no’ – vicarious liability extends to an employee doing authorised acts in an unauthorised way. Going ‘outside our guideline’s is evidence that the employee was negligent and therefore the employer is liable. To avoid liability the employer would have to show that the employee has gone on a frolic of their own, that whatever they are doing is so far outside their role that it can’t be said that they were acting in the capacity of an employee. The sort of example that is currently taking up court time is when will education authorities be vicariously liable for damage caused by employed teachers who sexually assault their students. It’s not part of their job but they reason they are in a position to assault the students is because they are teachers, the students are vulnerable and depend on the authorities to ensure appropriate selection of staff and an environment where it can’t happen and if it does is detected and acted upon – see Prince Alfred College Incorporated v ADC  HCA 37 (5 October 2016) (College not liable); see also New South Wales v Lepore (2003) 212 CLR 511 (6 February 2003). It is that sort of conduct, so far from the employers work, that allows an employer to avoid vicarious liability. Let me say that, in context, it is not at all clear that an ambulance service would NOT be vicariously liable if a paramedic sexually assaulted a patient – as Gleeson CJ said in NSW v Lepore “If a teacher employed by a school authority sexually abuses a pupil, is the school authority liable in damages to the pupil? No one suggests that the answer is “No, never”. In Australia, at least until recently, an answer “Yes, always” would also have been surprising. More information would have been required.” A similar statement could be made with respect to sexual assault by a paramedic when treating a patient:
“If a paramedic employed by an ambulance authority sexually abuses a patient, is the ambulance authority liable in damages to the patient? No one suggests that the answer is “No, never”. In Australia, at least until recently, an answer “Yes, always” would also have been surprising. More information would have been required.”
I would suggest that it is still the case that the answer is not clearly or always ‘yes’ or ‘no’ but that more information in each case would be required.