Today’s question comes from a NSW paramedic whose
… enquiry or question relates to Paramedic fatigue and how NSW Ambulance currently manages and assists its officers with mitigating their on-shift fatigue. Recently there has been several on shift and post shift vehicle crashes that are attributable to fatigue. This I understand involves Paramedics not being given access to their crib breaks due to significant caseload and short staffing.
Could you advise or discuss the legal ramifications of the control/coordination centre staff have surrounding the duty of care they have to operational crews under their care who have not gained access to crib breaks?
If during or after a 12 1/4 nightshift, an operational paramedic was to have a fatigue related motor vehicle crash, would there be any recourse against the coordination staff who have a duty of care to those in their charge?
Would there be any recourse against the coordination staff? I suppose there could be some internal process if they had not complied with internal policies. One would hope that would be in the nature of training and assistance rather than disciplinary action as I can’t imagine coord staff deliberately choose not to give crews their break ‘just for fun’. If we’re talking legal recourse – liability in negligence or breach of WHS law my view is there is no chance of recourse.
The coordination staff are part of the ‘system’ as are the on-road staff. The coordination staff don’t determine how many ambulance officers or ambulances are available on any given shift; they don’t determine the demand for ambulance services; they have to implement the fatigue management policy set by the employer, not by them – and they can’t say to a triple zero caller ‘look I’m sorry the nearest crew are on dinner break, stand by we’ll be there in an hour’.
If there is some negligent failure to have or implement a fatigue management policy that failure will be a failure by the employer not the coordination centre staff member personally. That’s true whether your considering negligence law or work health and safety law. The obligation to manage risk belongs to the Person Conducting the Business or Undertaking (the PCBU) and it employs the paramedics and coordination staff to do that, but the responsibility stays with the PCBU.
It may be argued that governments should allocate more resources. Remember that questions on the allocation of resources are not justiciable – that is they cannot be determined by a court (Graham Barclay Oysters v Ryan [2002] HCA 54; Civil Liability Act 2002 (NSW) s 42). If the government allocates more money to ambulance services that comes at a cost to other services. How governments allocate resources is a political not a legal issue, so we get to vote for the government that will spend money the way we want them too, we can’t sue to persuade them that our priorities should be the government’s priorities. An injured paramedic cannot sue either the government or the ambulance service to say that they should have allocated their budget and resources in a different way to protect that person from the risk that eventuated as that is just one of the risks that have to be managed with finite resources. If you can’t sue the government/ambulance service for not having more staff you certainly can’t have an action against the coordination staff.
What I find distressing about this question is what it suggests about morale and division in the service. There’s no suggestion that ‘we’re in this together’. If there are a lack of adequate resources relative to demand that impacts upon everyone including the coordination staff who, no doubt, feel the pressure of trying to get resources to those that call and trying to give the on-road crew their breaks and down time. The coordination staff like the on-road staff have to manage with the resources they have. For on-road staff to query whether there can be a personal recourse against their colleagues in coordination is concerning, to say the least.
Conclusion
The duty of the coord staff is to do their job within the parameters set by the employer and to coordinate the crews that are working that shift. They have to manage competing demands in particular the demand for ambulance services and the need to allow crews their rest breaks.
If crews can’t get a rest break because of demand for services that is not the fault of the coord staff. Even if there are things they could and should do (eg call in staff who were not rostered) then any negligent failure will fall to the ambulance service, not individual officers.
The [modified] question was:
If during or after a 12 1/4 nightshift, an operational paramedic was to have a fatigue related motor vehicle crash, would there be any [legal] recourse against the coordination staff who have a duty of care to those in their charge?
The answer is: No.
Australian Emergency Law 
Until the public are better educated on what an emergency is, until those on welfare who don’t have to pay, are charged a fee for non-ambulance cases, until Mental Health have Acute Mobile Units that deal with their OWN patients, and until the government meet demand, Ambulance crews will continue to be overworked & have late or no meal breaks. It causes not only fatigue, but, stress, low blood sugar levels, low staff morale etc etc. I could say so much more.
Is the onus then on the individual paramedics to call in sick or ‘fatigued’?
Thinking about a news article I came across about Victoria Police: https://www.google.com.au/amp/s/amp.9news.com.au/article/d8af89c5-f656-4b43-a54f-9f42dc4fbd83
G’day Nicole, myself and some other colleagues were just talking about this topic just the other day. Define ”fatigued”? Who isn’t fatigued at the beginning of their second (or even their first) night shift? Booking off because you are fatigued would bring every ambulance service to a grinding halt. There are varying levels of fatigue, ranging from ”light” levels that really don’t impact your job at all (“just a bit tired tonight”) through to ”heavy levels” that make someone potentially dangerous (”I got bugger all sleep today, I’m really really tired”).
I have had it happen where I feel well-rested going into a shift but hit an absolute brick wall halfway through the shift. Now, I could be responsible and put my hand up and say ”that’s it, I’m too tired, I’m going home”. What happens then is that your crew is offline while they try to fill the remainder of the shift (often they cannot), which increases the workload that the other crews have to endure, which increases their fatigue levels.
It is well-established that in any job requiring shift work, there are those that cope well with night shifts (in particular) and those that do not cope with night shifts very well at all. Some people get by with only a few hours of sleep between their night shifts. Others will go home and straight to bed, not rising again until just before they are due to leave for work – and still be tired when they get to work.
I think the question that we should be asking ourselves, when we are preparing to go to work is ”am I rested enough to be able to perform effectively? I may not be at my best, but am I able to perform to the minimum standard required?” If the answer is yes (as it is in most cases, thus people show up for work tired but still able to perform their duties). If the answer is no, then of course it is appropriate to book off. Then of course, there is what I described before – you feel fine at the start of your shift, at 2am though…
Fatigue management is of course becoming a focus in our line of work, and rightly so, but fatigue is somewhat of a spectrum affecting everybody differently. Fatigue is expected in any job requiring shift work, it is difficult to manage sometimes (or often for some) – it is certainly something that you cannot put some kind of measurable cut-off on, because everyone is different and copes with shift work differently.
Yes true. I agree with everything you have said. There is a certain amount of responsibility on the part of the ambulance service though to manage shifts so people aren’t too tired, and tired people aren’t a great judge of their own capabilities.
I have called in fatigued 15 minutes before the end of a shift. We were at a hospital a long way from branch and I didn’t think I’d be safe to practice if we got another job on the way home. The DM tried to tell me I’d have to fill out all the paperwork before I could go to sleep (not true), in an attempt to dissuade me from doing it. They were so hostile about it I felt like I’d committed some sort of crime. Granted this is just one DM, but I’d argue there is a culture, or was at the time, that said you were supposed to soldier on.
The article I linked to claims Victoria police have a device that can measure fatigue. I wonder how that affects when paramedics can or should call in fatigued?