A correspondent writes with details of a news story from New Zealand. They say it:
… got me thinking about life saving interventions and scope of practice.
You can view the article here: http://www.nzherald.co.nz/nz/news/article.cfm?c_id=1&objectid=12009987
It relates to a midwife performing an emergency tracheotomy utilising a Stanley knife whilst off duty. I do not imagine even whilst on duty the scope of practice of the midwife would include such an intervention. She mentions reading about the skill in a book, but no specific training.
I am a paramedic working for one of the state services and have spent time working in the UK. As a paramedic currently, I am not trained to undertake such a skill, generally reserved for an intensive care paramedic or doctor.
If I was to undertake this intervention it would be exceeding my scope of practice and I have received no specific training on how to undertake such an intervention.
My conundrum is this:
If I was on shift and did such an intervention I may be reprimanded, especially if the outcome was poor
If I was off duty and performed it on a member of the public, I could be congratulated as a hero
I feel as if I would have more protection as a member of public with some medical knowledge as opposed to my role whilst on duty as a paramedic.
I think your conclusions are basically correct. Let me, for the sake of the argument, assumes this happened in Victoria. In Victoria the Wrongs Act 1958 (Vic) s 31B(2) says:
A good samaritan is not liable in any civil proceeding for anything done, or not done, by him or her in good faith— (a) in providing assistance, advice or care at the scene of the emergency or accident …
Was this Act done ‘in good faith’? That term is not defined. To quote from an earlier post (Good Samaritan legislation and scope of practice (March 27, 2015)), and noting the irony that my example was a person performing a tracheostomy) I said:
The key is ‘good faith’. One could argue that undertaking action that you know you are not trained is not ‘good faith’ but I don’t believe that would be the outcome. The key case on good faith is Mid Density Developments Pty Limited v Rockdale Municipal Council  FCA 408. This case involved a question of whether the council acted in good faith when giving advice in relation to a properties flood risk. In the course of their judgment Gummow, Hill and Drummond JJ said (at ):
His Honour found that the statutory concept of “good faith” in the performance of the functions in question, included two criteria. The first was that the act be done bona fide and not maliciously or to achieve an ulterior purpose. The second was that there be “a genuine attempt to perform the function correctly, that is to say that the function should not be performed without caring whether or not it be properly performed”.
With resect to the section in question they went on to say (at ) ‘ The statutory concept of “good faith” with which the legislation in this case is concerned calls for more than honest ineptitude. There must be a real attempt by the authority to answer the request for information at least by recourse to the materials available to the authority’.
Applying that reasoning to the good Samaritan provisions requires that the intervener is acting ‘not maliciously or to achieve an ulterior purpose’ so they’re acting to assist the injured person, not to steal their wallet or do them harm and it’s a genuine attempt not to harm the person, ie to do the right thing. So a person who is confident in the use of oxygen and who genuinely believes that oxygen is warranted in the best interest and to avert harm to the patient is acting in good faith when they administer that oxygen; or use the person’s epi-pen or help them with their ventolin, or do CPR or use an automatic defibrillator. The person who says ‘I always wanted to do a tracheostomy using a Swiss army knife and a pen (as in M*A*S*H Season 5 Episode 8, ‘Mulcahy’s War’) [hence my comment that life mimics art] and now I can because I can’t be sued’ is not acting in good faith.
It should be noted that whether or not one has a ticket or qualification to do something in no way determines whether or not one is negligent. A person who is unlicensed may be a perfectly safe and competent driver; a person with a licence may be a menace. Whether or not one holds a licence or certificate does not determine whether or not they are negligent in any particular case. There is no law that says one needs any particular authority to use oxygen. In a negligence action the question would be ‘was the use of oxygen reasonable?’ and with the good Samaritan provision, was it done ‘in good faith?’
The midwife in this story did not perform the procedure because she saw the chance to do something she always wanted to do, she did it because she had training, she identified the seriousness of the situation – the reality is he “… was a goner so there was nothing to lose.” She was a good Samaritan so in Victoria (and in every Australian state) she would be protected.
But does she need those protections? In this case, no as she wasn’t negligent, and she didn’t cause any harm. It was a good result all ‘round so the ‘good Samaritan’ protections are irrelevant. Even if he’d died, we can infer that without intervention he would have died. Had she attempted this procedure and he died, then she hasn’t made the outcome any worse. In the absence of damage there’s no liability so again there is no issue and the ‘good Samaritan’ protections are irrelevant.
What about the on-duty paramedic? He or she is not a good Samaritan as they are at work with the expectation of getting paid; they are there because it’s their job to be there. Performing work outside their skills and training may lead to a reprimand, but that’s got nothing to do with the law and something to do with their employer. From a legal perspective, again if there is a good outcome what’s the issue? If there’s a poor outcome, that was inevitable in any event.
Paramedics have moved from automatons – condition A, do procedure B – to health professionals. Protocols have been replaced with Guidelines and on the job training with tertiary education to consider the ethics of practice and to allow paramedics the flexibility to think ‘if procedure B isn’t working, what other options might I have?’ The law would be no harder on the paramedic in this scenario than on the off-duty midwife. The employer’s attitude is a matter for the employer and hopefully, the paramedic’s union. I would expect however that if there’s a good result the paramedic is also a hero and if the media picks up on that, the employer will have some difficulty giving him or her a hard time.
Remember too, that the treatment of the unconscious is justified by necessity (In Re F  2 AC 1).
… not only (1) must there be a necessity to act when it is not practicable to communicate with the assisted person, but also (2) the action taken must be such as a reasonable person would in all the circumstance take, acting in the best interests of the assisted person.
I would not be acting reasonably if I attempted that procedure, but a paramedic (or a midwife or a nurse or a doctor) may do. The reason I wouldn’t attempt such a procedure is that it is so far outside of my skill set and experience that any attempt by me would be no more than ‘honest ineptitude’, but a qualified health professional, with experience in dealing with bodies and, to put it crudely, experience with actually taking a knife and cutting another person and have fingers, if not hands inside another person, may well think that whilst this is beyond the norm it’s not so foreign to what I’m used to that ‘I can do it’. As the midwife in this story said ‘”I didn’t find it frightening – it was just the next thing that had to happen if we were going to keep him with us.”
A paramedic, on or off duty, will no doubt be aware that the procedure is extreme, “… it should only be used as an absolute last resort – even by doctors”, they “certainly wouldn’t recommend it because “a lot can go wrong” but “”When everything else has been tried and the person is going to die for want of an airway – the person is on death’s door and has lost their pulse” and “There [is] absolutely no other choice” then a reasonable paramedic may well think “it’s this or it’s certain death so I’ll give it a go”. That doesn’t mean that they were negligent or that the action was not anything other than that which “a reasonable person [with equivalent skill and experience] would in all the circumstance take, acting in the best interests of the assisted person.”
One doesn’t want to encourage reckless behaviour but, in some circumstances,, when it’s a choice of life or death – do nothing the person dies, do something and it may help – then the law encourages action. That is the very purpose behind the good Samaritan provisions and they would apply to anyone including the off-duty midwife and paramedic. When at work those protections don’t apply but they’re not really relevant. If the outcome is good, the outcome is good; if the outcome is bad it was going to be bad anyway.
A not dissimilar situation was encountered by Victorian Paramedics during the Thunderstorm Asthma event of approximately 18 months ago. ALS paramedics operated outside their guidelines to utilise medications and skills normally only used by MICA Paramedics, as there was such a huge workload and inadequate resources to meet demand. Not only were they rightly hailed as legends in the community, but the employer recognised outstanding clinical decision making and skills and has extended some of those skills into standard ALS practice. It wont always end badly with the employer.
As a long time Instructor in the practical firefighting arts ,I often enjoy relaying operational quotes from a multitude of sage, experienced and informed sources.
Kenneth Moore plays ‘Ace’ fighter pilot Douglas Bader in the 1956 film ‘Reach For The Sky’, and gives a classic line to his apprentice fighter pilots on remaining flexible and focused ,when ever caught in a dog fight…
“Rules are meant for the obedience of fools and guidance of wise men.”
In the same breath ,I often mention to my squirming and irritated students ,that of Sir Philip Sidney quoted from him ,in the front plate of The Australian Shipmaster’s Guide 1858, which delightfully seems to sum it all up…
” Laws are not made like lime-twigs or nets, to catch everything that toucheth them … but rather like sea marks, to guide from shipwreck the ignorant passenger.”
Nice sentiments ,but I Dunno how these would stand up in a modern court room.
Professor and others ,I really get a educational kick, from your AEL posts.
How they would stand up would depend on the laws – some are inflexible nets – you must not exceed the speed limit. Others are indeed guides – do what is ‘reasonable in the circumstances’. What happens in many cases, including this one, is people think there is hard, fixed law and there just isn’t. For example this person has not committed any criminal offence – people have all sorts of beliefs about what is or is not prohibited and there it’s not the law that’s guiding – it’s the coast in the fog and the fog horn that you can hear but not properly locate that’s guiding the sailors.