Today’s correspondent is a student:

… studying a Diploma in Paramedical Science and have just read about “abandonment”.

A PowerPoint presentation the Uni has sent us on legal responsibilities advises that “You must always transfer care of a patient to a professional of equal or better or better training to avoid charges of abandonment”.

I have never heard of this term before, but I have had a couple of overseas paramedics argue the point on abandonment. And I was like…So if that’s who turns up what do you do?  For example, I have been talking to some fellow students who have advised it is illegal for anyone other than ACT ambulance to transport patients in the ACT. Further, I used to work in Regional Western Australia as an industrial Para/medic, the state Ambulance service there [St John Ambulance Australia (WA)] is staffed by volunteers. As they are the only recognised Emergency transport Service provided by the state, I previously have felt comfortable handing a patient over to them, now with the words professional and higher training, I am concerned I might be opening myself up for a liability.

This got me thinking: how do the rules work if a care giver is required to hand a patient over and the attending retrieval team aren’t qualified to the same skill level? Is there any specific direction In Australia on this?

The concept of abandonment has come up on this blog before. In an earlier post (Physical restraint of patients by paramedics (February 14, 2014)) I said:

Abandonment is not a term that I am familiar with in Australian law but I have heard of it in US law (see Curt Varone, Fire Law Blog: Abandonment Issue Raised in Asiana Crash Case) but even there it does not sound like a well-accepted principle.

In Varone’s blog he says:

Abandonment occurs when a medical provider who has assumed care and control of a patient in need of medical attention either stops providing care leaving the patient unattended or leaves the patient under the care of someone with lesser qualifications WITHOUT LEGAL EXCUSE OR JUSTIFICATION. While some authorities identify abandonment as an intentional tort, most courts that have dealt with the subject view it as a breach of the standard of care under a negligence theory.

If I refer to an Australian torts textbook (Harold Luntz et. al., Torts: Cases and Commentary (7th ed, Lexis/Nexis, 2013)) and an Australian medical text (J.A Devereux Australian Medical Law (3rd ed, Routledge, 2007)) the term ‘abandonment’ does not appear in the index of either book.  If I go to Austlii, I can search the case law from all Australian jurisdictions and the search “tort of abandonment” produces no results.   The use of the word ‘charges’ implies criminal law but there is no relevant crime of ‘abandonment’.

One only needs to think of it, as my correspondent has, to show why the idea of a tort (or crime) of abandonment described as “You must always transfer care of a patient to a professional of equal or better or better training to avoid charges of abandonment” has to be nonsense.

Think of my correspondent’s example of an intensive care paramedic on a mine site who calls St John Ambulance (WA) to respond and transport a patient to hospital.  If the mine paramedic can’t hand over the patient to St John, but equally can’t leave the mine site, then no-one is going anywhere.

Or imagine a rapid response intensive care paramedic (ICP) who responds to a triple zero call and finds, on arrival, a person fractured leg.  They don’t have life threatening injuries so don’t need intensive care intervention but they need pain relief and transport to hospital. The ICP has to be able to hand over to paramedics with lower level skills, skills adequate for this patient’s needs but not the same as the ICP but not if the description of the tort (or crime) described in the university’s PowerPoints is correct.

Or a doctor who is treating a patient in the surgery and determines that the patient needs transport to hospital.  Maybe the doctor has ‘equal or better training’ than the paramedics but can he or she hand over the patient’s care to the paramedics.  Clearly they must if the patient is actually going to be transported to hospital.

If we accept that the tort exists, and it is as Curt Varone has described it, then the issue is ‘without legal justification or excuse’ and of course there’s a legal justification to hand on patients to the agency that is created (in the case of state ambulance services) or contracted (as in WA and the NT) to provide ambulance services.   In an unrelated case, Zangari and St John Ambulance Service [2010] WASAT 6, the WA tribunal said this about the interaction between St John (WA) and a medical practitioner:

… on arrival, the ambulance officers are entitled, if not required, to take charge of the situation … they have the primary conduct of patient care… The medical practitioner takes a step back once an ambulance arrives, allowing the ambulance officers to attend to the patient and provide what is needed… The patient becomes SJA’s patient and for the purposes of the particular incident is no longer the medical practitioner’s patient, regardless of the physical location of the patient…

The role of the medical practitioner is to provide patient and other pertinent information and medical or other assistance if required, by the ambulance officers. It would be good practice if the medical practitioner does what they can to facilitate patient diagnosis and care by the ambulance officers. It would certainly be pertinent and helpful for a doctor present at the scene to identify themselves as such, particularly if they are the patient’s treating doctor. There is no stated policy document or procedure (of which we are aware) that requires ambulance officers to seek out or engage the assistance of a medical practitioner if they are called to provide assistance at a doctor’s surgery (as was the case here), or indeed at any place where a medical practitioner is present. It might be common sense to do so, but it is a discretion exercisable by the ambulance officers based on their appraisal of the situation they are attending and on the needs of the patient, and on the ability of the patient to provide the required information.

The same must be true if the person providing care before the arrival of St John is an ICP.  But if the tort of ‘abandonment’, as described by my correspondent and allegedly quoting a University PowerPoint, existed the relationship would be quite different and the doctor couldn’t ‘transfer care’ to the paramedics (assuming the paramedics are not ‘a professional of equal or better or better training’ a matter of some controversy) or else the doctor would risk ‘charges of abandonment’. (For a more detailed discussion of that case, see Step aside – I’m a doctor (October 17, 2014)).

If the principle, as stated by my correspondent were correct, everyone responding to an emergency would need to carry their CV and spend some time at the scene comparing them  (one can think of a gendered parallel where people may be said to be comparing the size of something other than their CV, a parallel I’ll leave to your imagination).

A better view is to see the issue as a question of whether or not the decision making is reasonable in all the circumstances, or as Varone says a question of ‘a breach of the standard of care under a negligence theory’; see also my discussion in Paramedics leaving patients in casualty (January 24, 2015).

If the question is simply one of negligence then issues of duty of care, and standard of care arise.  Remember no-one ‘owns’ the patient.  The issue must always be what is in the patient’s best interests or who is best able to provide the care that the person needs.

The off duty ICP who goes to assist a person injured in a West Australian shopping centre can ‘hand over’ the patient care to the on duty St John volunteers because the ICP isn’t under a duty to provide care and the first place and taking into account all of the circumstances, it would be reasonable to do so as the transport of the patient is their task. Equally a doctor that stops to assist can and must hand over the care to the on duty paramedics.  Equally a paramedic in the ACT or NSW will hand over care to other paramedics who may be less qualified if that is reasonable in the circumstances.  And sometimes people will be left in the care of their family or others who will look after them.

Conclusion

It only takes 10 minutes to think about the implications and realise that a claim “You must always transfer care of a patient to a professional of equal or better or better training to avoid charges of abandonment” is nonsense. There is no ‘specific direction In Australia on this’ because it’s never arisen.  There is, in Australia, no relevant crime of ‘abandonment’.  Nor is there a tort of abandonment.  Whether it is reasonable to leave a patient in the care of others depends on all the circumstances.

It should go without saying that it would be better if universities teaching paramedical science degrees did not communicate information that is clearly wrong.