Today’s question relates to professional insurance and the Registration Standard on Professional indemnity insurance arrangements. My correspondent asks:
(1) My understanding is that whilst engaged in employment, we are covered under vicarious liability and the employer’s insurance policy. How, if at all does registration change this?
(2) In WA we have the Civil Liability Act 2002 (WA) s 5AD which provides the relevant coverage. It says:
(1) A good samaritan does not incur any personal civil liability in respect of an act or omission done or made by the good samaritan at the scene of an emergency in good faith and without recklessness in assisting a person in apparent need of emergency assistance.
(2) A medically qualified good samaritan does not incur any personal civil liability for advice given in good faith and without recklessness about the assistance to be given to a person in apparent need of emergency assistance.
(3) This section does not affect the vicarious liability of any person for the acts or omissions or advice of the good samaritan or medically qualified good samaritan.
How does this change, if at all, with the introduction of paramedic registration?
From what I can tell, there is no need to have PPI for activities carried outside of work, and I would be covered under my employers insurance under vicarious liability. Am I missing something?
Vicarious liability
Most paramedics will be practising as employees and many as employees of state ambulance services. Those services will carry insurance, often under state or territory self-insurance schemes. By virtue of the doctrine of vicarious liability, those employers will be liable for any negligent practice by employed paramedics.
The Registration standard: Professional indemnity insurance arrangements issued by the Paramedicine Board of Australia (17 May 2018) says ‘When you practise as a paramedic, you must be covered by your own or third-party PII [Professional Indemnity Insurance] arrangements…’ Where you are working solely as an employee, your employer will be vicariously liable for any negligent acts or omissions and there cover should be sufficient. The Standard does say:
If you are covered by a third-party PII arrangement, it must meet this registration standard. If you are in any doubt about whether the third-party cover meets this registration standard, you should always ask what is covered by the third-party PII arrangement.
An employer’s liability is not simply determined by their insurance. Further state based ambulance services have the resources of the state behind them so there could not be any serious question that a paramedic who practices only as an employee is covered.
It is likely therefore that paramedic practitioners acting solely as employees, particularly employees of state ambulance service, will be sufficiently covered by the employer’s insurance arrangements. It should be understood that an employer is not paying for insurance on behalf of the employee, rather the employer is insuring against their own risk that is that they are liable for any negligence by employees. If there is inadequate insurance the employer is still liable, they just cannot pass the cost to an insurer so they have to meet the liability out of their own funds. Where an employer is the state operated ambulance service, it will be the state that is liable so the question of capacity to meet any liability will not arise.
Registration won’t change that and despite some fears, registration won’t change the nature of vicarious liability. Nurses are registered health professionals but where they are employed it is their employer that wears any liability and that is also true for medical practitioners. The difference is that medical practitioners often arrange their business affairs so that even when working in public hospitals, they are contractors rather than employees.
The ‘good Samaritan’ provisions are more complex.
Registration won’t change s 5AD or its equivalent in the other jurisdictions. The paramedic is protected by that section but that doesn’t resolve the issue of whether or not the paramedic is practising the profession in that context.
What is unique for paramedics is that emergency out of hospital care is the essential or defining aspect of paramedic practice. A doctor or nurse may feel they need to assist at an emergency but may not see that they are ‘practising’ their profession. Paramedics are experts in out of hospital emergency care. Where a paramedic comes across an accident or is aware that a person is having a sudden medical emergency, they will be aware that assisting that person is the essence of paramedic practice.
A paramedic may not have private insurance, eg because they hold a non-practicing registration or their practice is limited to their employment with a state ambulance service. Even so, a paramedic may be concerned that they would be held to be practicing their profession, without insurance, if they offered to provide care, even basic first aid, at a sudden accident or emergency. In a personal submission to the Paramedic Board I argued that the Board should expressly say that such conduct does not constitute practice without insurance. In those circumstances a paramedic won’t be in a position to engage in high risk practices and the delivery of emergency care should be encouraged. A similar argument was also made in the submission by Paramedics Australasia.
We argued that the Registration Standard on Professional Indemnity Insurance Arrangements should make reference to, or adopt the sort of language used in the good Samaritan’ provisions that exist in every Australian state and territory. For example:
A paramedic who, in good faith and without expectation of payment or other reward, comes to the assistance of a person who is apparently injured or at risk of being injured is not considered to be practising paramedicine for the purposes of this standard.
A rule to that effect will bring the professional standard in line with the civil law. An off duty paramedic who steps forward to assist in an emergency would be able to rely on state and territory ‘good Samaritan’ provisions so that he or she is not liable to pay damages for acts done in good faith. ((Civil Laws (Wrongs) Act 2002 (ACT); Civil Liability Act 2002 (NSW); Personal Injuries (Liabilities and Damages) Act (NT); Law Reform Act 1995 (Qld) and Civil Liability Act 2003 (Qld); Civil Liability Act 1936 (SA); Civil Liability Act 2002 (Tas); Wrongs Act 1958 (Vic); Civil Liability Act 2002 (WA) and Volunteers and Food and Other Donors (Protection from Liability) Act 2002 (WA)). Where they are not liable for acts done, in good faith, they should also be reassured that they will not be subject to professional discipline for practising paramedicine without insurance.
Regrettably the Paramedicine Board did not address that in the final version of the registration standard. It therefore remains to be seen what view the Board will take should it ever consider whether an uninsured paramedic who steps up as a good Samaritan is at that time ‘practising as a paramedic’. Even without an express statement to that effect, it would be my view that they are not.
Paramedics may want to take out personal insurance, even if their practice is limited to work as an employee because professional indemnity insurance can provide cover that is more extensive than the employer’s cover. Under the doctrine of vicarious liability an employer would be liable to meet any damages due to an injured patient but is not required to provide assistance if the paramedic is subject to professional discipline or if their employer tries to take disciplinary action. Personal PI insurance will usually provide legal assistance to the insured in these circumstances.
Paramedicine Australia (of which I am a board member) has negotiated with Guild Insurance to provide professional indemnity insurance. This policy provides insurance for many risks associated with running a practice as a paramedic which may not be relevant for a paramedic who is only practice is as an employee but it does provide cover for work done in a voluntary capacity (eg for a paramedic who is a volunteer first aider in his or her days off) and for ‘good Samaritan’ actions. Further it provides insurance to cover the legal costs of appearing before an inquiry which includes:
- an official investigation, examination, inquiry or prosecution directly relating to an act, error, omission or conduct by You in Your provision of the Professional Services:
- brought by a registration board, statutory regulatory authority, tribunal or any disciplinary committee of an association or professional body of which You are a member;
- arising from a complaint made against You by a third party to any court, statutory health authority or agency, registration board or a professional association or body of which You are a member; or
- brought by way of coronial inquiry or royal commission:
These sort of costs are not met by an employer and that cover may be sufficient for many paramedics, even though who practice only as an employee, to take out cover.
Conclusion
It is likely that a paramedic who practices only for one employer and in particular if that employer is a state ambulance service will not need to obtain private insurance.
There is an issue that because paramedicine involves out of hospital care, that providing ‘good Samaritan’ assistance may be seen as practicing the profession and if a paramedic does not have insurance that may be a breach of the Health Practitioner National Law even though they are protected from civil liability by the various good Samaritan provision. The Paramedicine Board failed to address that in the final Registration Standard.
To mitigate any risk of an allegation of practicing without insurance, and to provide insurance to help cover the costs of matters not covered by vicarious liability, in particular the cost of defending professional disciplinary proceedings, paramedics may like to consider obtaining private insurance.
(This discussion is based on and drawn from Eburn. M and Townsend R, ‘Professional Insurance for Paramedics’ (2018) 45 Response pp. 20-21).
Australian Emergency Law 
I see paramedics are required to have insurance. Why are us nurses working as paramedics on mine sites not required to have insurance.?
Just an observation.
you are – see Nursing and Midwifery Board Professional indemnity insurance arrangements http://www.nursingmidwiferyboard.gov.au/Registration-Standards/Professional-indemnity-insurance-arrangements.aspx. But the employer (as with an employer of doctors and paramedics) will be liable for any negligence so that liability meets the professional standard –
To further your comment
“Further state based ambulance services have the resources of the state behind them so there could not be any serious question that a paramedic who practices only as an employee is covered.”
The State of Western Australia does not have a state provided ambulance service.
The State of Western Australia contracts its provision of service as mandated by the Commonwealth to a limited liability company. That company is St John Ambulance Australia Western Australia Inc. Also registered as WA Ambulance Service Inc.
It should be noted there is no “Ambulance Act” as such in force by legislation or regulations.
However the Heath Department of WA has given registration to six “ambulance services” within the State and terrority of Christmas Island.
SJAA WA Inc is the contracted state provider of emergency ambulance services. However in some remote reguonal areas the ambulance service is provided by the District Hospital such as the Derby Hospital.
In towns like Marble Bar and Nulligine the Clinic Nurse has 4WD that is used as an ambulance for motor vehicle accidents and RFDS transfers as wrll as meeting the SJAA WA ambulances at transfer points from Hedland and Newman. Indigenous Land Councils often operate a service of sorts.
As a contractor SJAA WA would not have access to the Department of Attoney General or Health Department legal team. Therfore, they would not have the backing of the State as per this article referance.
That’s quite right, there is no state based ambulance service in either WA or the NT. I did not mean to imply that there was.
Thank you for that Micheal.
However the writer did refer to WA legislation in his enquiry.
The highlied reply gave the impression (how I read it) that the writer’s situation would be covered by the state.
I feel this is not the case in Western Australia.
So basically the standard is deficient in its detail. In fact it is just the generic form.
It appears that that even as a state employee I am still most probably having to take out insurance.
The other part of the standard no one has talked about is the continuing insurance I will have to continue to carry in a couple of years when I retire.
The solution is very simple. Registration fee covers the insurance.
It’s true it does appear rather generic. As a state employee you won’t require insurance if that is your only practice . As for ‘run off’ insurance whilst I can’t confirm the terms of any given policy, I would expect that the policies will relate to when the claim is made so the insurance in any given year will cover claims arising in that year whenever they are made and that is it will be ‘run off’ cover. You won’t need insurance for years after you retire to cover a claim that may be made during that time.
The registration standard states that “Practitioners are exempt from requiring PII arrangements when a practitioner has statutory exemption from liability.”
Under section 39 of the Ambulance Service Act (Qld) 1991, “The State is to indemnify every service officer against all actions, proceedings and claims in relation to (a) acts done, or omitted to be done, by the officer under
section 38; or (b) acts done, or omitted to be done, by the officer in good
faith for the purposes of section 38.
Section 38 covers most foreseeable actions (and lack of actions) that a paramedic might undertake in the course of their duties.
Therefore, provided you are working for an ambulance service covered by this act, you are exempt from the standard’s requirement for PII.
For those that might want a quote for professional indemnity insurance, you can easily get one through Guild Insurance at http://www.guildinsurance.com.au