Two related stories have come out regarding drug use by Ambulance Paramedics. The first is the report by Victoria’s Independent Broad-based Anti-corruption Commission (IBAC) ‘into allegations that Ambulance Victoria (AV) paramedics engaged in serious corrupt conduct, namely the theft, trafficking and use of drugs of dependence, and misappropriation of AV equipment’ (Operation Tone: Special report concerning drug use and associated corrupt conduct involving Ambulance Victoria paramedics (Independent Broad-based Anti-corruption Commission, September 2017), p. 5).
No doubt related to that is news that Ambulance Victoria was fined $400 000 for failing to ensure a safe workplace (‘Ambulance Victoria fined following paramedic’s death’, WorkSafe Victoria News, March 9 2018).
The court was told Ambulance Victoria had exposed the paramedic and volunteer officers at the station to health and safety risks by failing to minimise the potential for illicit access to morphine and fentanyl.
During the IBAC investigation (p. 7):
Twenty-two paramedics were investigated… They included ALS level paramedics, clinical instructors and graduates. Operation Tone found that several line managers were aware of widespread practices such as the misappropriation of AV equipment for personal use, but were not directly involved.
During the course of the investigation (p. 5):
… one paramedic was terminated and eight paramedics resigned while under investigation. Six paramedics retained their employment with a formal warning; of these, five were relocated to different regions for varying periods, were enrolled in an ethics counselling course, and precluded from development opportunities for 12 months…
Further (p. 11):
Around the time of – and during – IBAC’s investigation, there were two further instances of misappropriation of fentanyl. One AV paramedic, who was alleged to have stolen fentanyl, died in October 2015 and fentanyl was subsequently found to have been involved. Separately, another paramedic selfreported that they had stolen fentanyl. The paramedic was subsequently dismissed and later died from a suspected drug overdose, however it is not known whether fentanyl was involved.
The Commission found evidence of:
- Misappropriation and use of AV drugs of dependence (pp. 11-13);
- Use and trafficking of drugs of Dependence (pp. 13-15);
- Unauthorised cannulation by paramedics (pp. 15-16); and
- Misappropriation of AV equipment (p. 16).
The Commission recognised the complexity of the situation facing AV. It said (at p. 25):
The possibility of misappropriation will always be an issue for AV. IBAC recognises it is a delicate balance in empowering paramedics to make life-saving, timecritical decisions within the context of a sound risk management framework.
Even so there were ways that AV could further secure the supply of drugs and reduce opportunities for misappropriation. The IBAC recommended (p. 30):
That AV conduct a comprehensive review of the use of illicit drugs and misuse of drugs of dependence by AV employees, as well as the development and implementation of a more robust framework to prevent and detect such drug use. The review should consider, among other things:
- the development and communication of a clear policy on the use of illicit drugs and misuse of drugs of dependence, and the consequences of such use by AV employees, with reference to contemporary best practice
- the adequacy of the current drug testing regime and how it can be improved (eg by conducting random testing of a minimum percentage of the workforce)
- the adequacy of current drug controls, including drug disposal processes
- improving training and communication to operational employees on relevant policies, including drug handling policies and procedures, and use of AV equipment for personal use
- ensuring mechanisms are in place to encourage employees to report suspected misconduct or corrupt conduct including illicit drug use, misuse of drugs of dependence and misappropriation of equipment
- strengthening recruitment processes and policies to more effectively identify and manage risks
- providing appropriate welfare and support arrangements to employees who appear to be using illicit drugs and/or drugs of dependence.
AV is to provide IBAC with a progress report by 30 March 2018 and a final report by 28 September 2018 on the implementation of this recommendation.
The recommendations that AV both ensure ‘mechanisms are in place to encourage employees to report suspected misconduct or corrupt conduct including illicit drug use’ and, at the same time provide ‘appropriate welfare and support arrangements to employees who appear to be using illicit drugs and/or drugs of dependence’ highlight the competing demands on any organisation but particularly one that exposes its staff to the sorts of experience that are inherent in ambulance work. On the one hand they need to monitor their staff and act decisively, almost punitively, when they discover that their staff are misappropriating, or worse, dealing in scheduled drugs but equally they owe a duty to their staff to support them by on the one hand having procedures to limit the ability of staff to access means to harm themselves, but to also recognise and assist with the inevitable harm that working as a paramedic causes.
Failing to ensure that staff couldn’t access drugs and that procedures weren’t in place to allow them to identify and hopefully support, not just sack, paramedics who were using drugs would appear to be the basis of the prosecution by WorkSafe Victoria.
The impact of registration
Having outlined the event, I want to consider what impact paramedic registration may have on this matter or events like it in the future. IBAC identified forthcoming paramedic registration as an issue (p. 24). It said:
Under the [National Registration and Accreditation Scheme] NRAS, national boards and [the Australian Health Practitioner Regulatory Authority] AHPRA work together to ensure that practitioners are appropriately qualified and competent to practise a registered health profession…
In relation to nurses, AHPRA works closely with that profession’s national board to conduct random urine drug screens and tri-monthly hair tests for those who have an identified substance-related impairment. A former paramedic who is now a nurse, is subject to that process and advised IBAC they ‘…had restrictions that I couldn’t work casually and that I had to inform the organisation I was working for of all my conditions and that they had to provide a three monthly report detailing how I’m progressing’.
Inclusion in the NRAS adds another layer of complexity around drug testing for AV. AV will need to establish how its drug testing arrangements will complement that administered by the national regulator.
The consequence of the IBAC review was that one paramedic was sacked and six resigned. Six remained employed but with conditions on their employment. The problem for others is that we don’t know who those paramedics are. There may be informal ‘back channels’ between ambulance services to stop those 7 former AV paramedics getting employed elsewhere but the community don’t know that. And should their careers be terminated? They have extensive skills that are of value to the community, a community that has spent a great deal of taxpayers money training them. The community may be better served if they could continue to use those skills for the public benefit. As for those paramedics still employed by AV again we don’t know who they are and a patient, or new employer, may not be aware of the restrictions on their practice. And finally, the ultimate decider of what conditions or restrictions to apply is Ambulance Victoria, but as noted, Ambulance Victoria has multiple interests here – protecting its own reputation and legal standing; protecting community confidence; ensuring high quality patient care and also supporting its staff. As an agency facing prosecution AV may want to be seen to take severe measures as that may go to reduce its penalty but is that best for staff?
Professional registration may change this. First the paramedics found to have done the wrong thing can expect to face an inquiry by the National Board. The Board may refer them to a Health Panel or a Performance and Professional Standards Panel. These panels, made up of three members including at least one registered paramedic. Unlike a court, the panel hearings are not open to the public. Where a panel determines that the paramedic ‘has an impairment, or … has behaved in a way that constitutes unsatisfactory professional performance or unprofessional conduct’ then it may suspend their right to practice or allow them to continue to practice subject to conditions (Health Practitioner Regulation National Law cll. 181-192). Once conditions are imposed they are recorded on the register so anyone can identify the conditions applying to any paramedic (s 225).
The value of allowing someone to practice is that it retains their skills for the community. And if someone has an impairment, even one that manifests itself in drug taking, removing their identity (“I am a paramedic”) and their ability to earn an income is unlikely to assist them to overcome the issues that has led to their drug taking or otherwise deal with their impairment.
Where the tribunal thinks that the matter warrants more significant penalties, in particular that the evidence may warrant the paramedic being ‘struck off’, the matter can be referred to the ‘responsible tribunal’ (s 190). In Victoria the responsible tribunal is the Victorian Civil and Administrative Tribunal (VCAT); Health Practitioner Regulation National Law (Victoria) Act 2009 (Vic) s 6)). The tribunal can determine that a registered paramedic is to be struck off the register or to be allowed to practice subject to conditions Health Practitioner Regulation National Law cll. 193-198).
Where a person is struck off, every potential employer will be able to identify that they were struck off, and why. If a person thinks that result is too harsh, they will be able to see why the Tribunal was of the view that it was the appropriate remedy. Alternatively, if that is not the result people will be able to see why.
By virtue of a national registration scheme and published reasons for decisions, paramedics who find themselves in the same position will be able to find an indication of what the likely consequence will be. And that will apply across jurisdictions. The ACT Civil and Administrative Tribunal (ACAT) will be able to see how VCAT has dealt with like cases and one can expect, or at least argue, for a similar result. That will see paramedics treated the same rather than being subject only to their employer’s determinations.
Before a Tribunal (and a panel), a paramedic will be entitled to ‘natural justice’ which means they’ll be able to put material before the Tribunal to explain their position, what they’ve done to address their drug taking etc and to make submissions as to the response the Tribunal should make. This may or may not happen with their employer but is guaranteed before the Tribunal.
And the employer has to look to their own interests the way a panel or the Tribunal does not. The employer that sits in judgment of its staff is also considering its own best interests. For the panel or the Tribunal, the issue will be an independent assessment of the community risk.
The release of the IBAC Report and the prosecution of Ambulance Victoria reveals that AV is expected to manage the risk to staff and the community and like many companies and individuals, it faces criminal prosecution if it fails to do so.
For paramedics however having AV as both the employer and regulator of their practice may give rise to a perceived conflict of interest. With professional registration, whilst employers will still be able to hire and fire staff, it will the Health or Performance and Professional Standards Panels and/or the relevant Tribunal that will determine whether a registered paramedic is to be allowed to remain on the register or subject to conditions on their practice. Once that has been determined the information will mean that paramedics who have been struck off cannot obtain employment elsewhere whilst those that have been found to have an impairment may be better assisted to recover with the promise of being able to return to their career.
Whether that will lead to better outcomes for paramedics remains to be seen but at least it will be more transparent than current arrangements so should maintain community confidence and also allow employers to leave determinations to others. This will make decisions to retain impaired paramedics easier to justify to the court of public opinion if an independent tribunal, that includes paramedic representatives, has determined that the paramedic should be allowed to continue to practice.