Today’s question comes from a Queensland paramedic who tells that:
… here in Queensland, we have a fatigue management plan, whereby each paramedic has to ascertain their own ‘fatigue score’ using pre-set questions in regard to how much sleep they have had in the last 24hrs as well as the previous 24hrs as well. If the score is above a certain score, action needs to be taken, ranging from Comms being aware to standing down from duty. In my experience, individual officers don’t take this seriously, as they deem it another way that management can ‘screw us over’ if we report our score and have an accident in the line of duty. I was wondering what the law says in regard to fatigue management and the legal response should a paramedic be involved in an accident and claim fatigue as a cause?
In answering this question I’m not commenting on the specific Queensland policy as I don’t have access to the relevant policy documents, so this will be a general discussion.
The starting point is the Work Health and Safety Act 2011 (Qld). It says
(1) A person conducting a business or undertaking [a ‘PCBU’; in this context, Queensland Ambulance] must ensure, so far as is reasonably practicable, the health and safety of—
(a) workers engaged, or caused to be engaged by the person; and
(b) workers whose activities in carrying out work are influenced or directed by the person;
while the workers are at work in the business or undertaking.
(2) A person conducting a business or undertaking must ensure, so far as is reasonably practicable, that the health and safety of other persons is not put at risk from work carried out as part of the conduct of the business or undertaking.
Put simply Queensland Ambulance must take steps to try to ensure, as best it can, that neither its paramedics or those they meet are exposed to risk due to the work being undertaken. Neither the Act nor the associated Work Health and Safety Regulation 2011 (Qld) makes specific mention of fatigue management.
But let us assume for the sake of argument that fatigue management is an important issue for a 24/7 emergency service as it is for PCBU’s that ask people to drive for a living (see How to Manage Work Health and Safety Risks: Code of practice 2011). A fatigued paramedic is a risk to him or herself, their colleagues and their patients. An ambulance service can monitor what it asks its paramedics to do on any shift, ie they can know what jobs they’ve been doing and whether there’s been down time, but they can’t control what people do on their time off – whether between night shifts they’ve been working a second job or up all day at the family picnic. Or whether before the day shift they were out partying. But if the paramedic makes a mistake and harms someone (including him or herself) it will be the ambulance service that will be liable for the negligence of the paramedic and for the workers compensation costs and, if there has been no effort to manage that risk, for breach of the WHS Act.
Given all that it seems quite reasonable to implement some scheme and in this case, it’s self-monitoring. Whether that is sufficient I can’t say but it does at least force paramedics to think about it and if they know they are going to have to complete the checklist it may remind them to go to bed early rather than stay up on a Friday night before a Saturday morning start.
But what of the claim that it’s ‘another way that management can ‘screw us over’ if we report our score and have an accident in the line of duty’. Remembering that I haven’t seen the policy document I fail to see how that could be the case. If the paramedic reports their score and it is such that action should be taken, then the liability of the ambulance service, not the paramedic would be clear if the service did not in fact take the action that the policy called for. If, on the other hand, the paramedic does not honestly report their fatigue score, then that could well be used to their detriment should there be a clinical or other accident. It won’t affect liability – an employer is vicariously liable for the negligence of their employee but it may impact upon the paramedics’ compensation rights if they are injured and it may impact upon their employment. An employee must obey the reasonable directions of the employer and requiring the employee to complete the form honestly would seem to be a reasonable direction – at least if the policy is reasonable.
Put simply, if paramedics are worried about providing ‘another way that management can ‘screw us over’’, failing to complete the form honestly would give that to them. If the concern is that the paramedic will be stood down and lose wages or be required to take leave, then that should motivate paramedics to manage their fatigue between shifts.
Conclusion
Again, without seeing the policy I can’t see how anyone would think being dishonest on the self-assessment is going to be more in their interest than filling it out correctly. If they fill it out correctly and are involved in an accident and claim fatigue as a cause then they can point to their form and that they told the service, and that the service, being on notice, should have done something to reduce the risk to them and others.
Australian Emergency Law 
From personal experience with QLD ambulance the issue with fatigue is the importance being placed on response times over managing crew fatigue (with breaks, getting people home on time, finishing paperwork etc.)
Employers are legally responsible for ensuring their workers get breaks. However my understanding is as an emergency service the are exempt on the basis of needing a “time critical emergency response” – aka it can’t wait 30mins for someone’s break to finish. Therefore this is taken advantage of for the importance of having good response times. The problem is that a vast majority of jobs crews are responding to are in no way time critical & or even acute in nature. – (Wanting a lift to hospital, wanting to be “checked out”, problem as been ongoing for weeks).
In relation to fatigue scores often high numbers are caused by impacts of preceding shifts (no breaks in a 12hr shift & finishing 2hrs+ late cutting into sleep time etc.). The issue is that if reporting a high score the responsibility is placed back on the paramedics who are told that if they are too fatigued to work to go home BUT hours off work are taken off the paramedics sick leave. This is despite that it is the ambulance service failure to get people home on time or give them the breaks they are entitled too that causes the fatigue. Also if this happens multiple times a paramedics suitability is questioned instead of looking at their own managements of crew workload
Thanks for that further background. If however forms are filled in incorrectly to manage the score (rather than fatigue) then there will be no way to address the industrial issues as QAS can say either there is no problem or if it’s not reported to them they can’t do anything about it. Second, it doesn’t change the answer with respect to the question as put to me. My original correspondent said ‘individual officers don’t take this seriously, as they deem it another way that management can ‘screw us over’ if we report our score and have an accident in the line of duty…and claim fatigue as a cause’. It’s still my view that if there is a fatigue caused accident, the fact that it was reported will put the onus on QAS. If it’s not reported the onus fall more on the paramedic.
The industrial issues and whether QAS is using the process ‘in good faith’ is an issue I can’t comment on, but from a lawyers perspective what you are creating, if you don’t feel the forms in, is a ‘rubbish in/rubbish out’ system. And it gives QAS an ‘out’ from managing the problem. To protect oneself from the industrial issues is why you join the union.
The whole fatigue in emergency services needs a long hard look at, especially with volunteers who often work all day at their normal place of work and then attend call outs at night, often with little or no sleep.
This is particularly an issue with first response SES units who undertake road crash rescue or support Police at crime scenes as they can often be in attendance for many hours.
I’ve seen many times members go home for a couple of hours sleep at most and then go back to their normal workplace.
That is indeed an issue, Luke. And lying on self-reporting forms may make sense from an industrial point of view if the alternative is lost wages or questioning of one’s ability to perform the job but hiding an issue certainly doesn’t encourage the PCBU to deal with it.
The other thing with volunteers, in my experience, is getting them to go home. Emergencies may not happen that often and no-one wants to leave or miss the ‘big’ event that they have spent so long training for.