It is well established the employer’s duty of care to employees includes an obligation to take all reasonable steps to provide a safe system of work and an obligation to take reasonable care to avoid psychiatric injury.
It is not in issue that [the Queensland Ambulance Service] QAS owed Mr James such a duty. The determinative issue in the case are not whether QAS owed Mr James a duty to take reasonable care to avoid psychiatric injury to him but whether it breached that duty of care.
So said Justice Henry in James v State of Queensland [2018] QSC 188, [10]-[11] (10 December 2018). One way to avoid risk of psychiatric injury would be to avoid exposing staff to traumatic events, but that is not possible if you are operating an ambulance service. As Henry J continued (at [133]):
It is inherent in the paramedic’s role of providing emergency medical assistance to the public that the paramedic will encounter traumatic and stressful events with consequent risk of psychiatric injury.
The issue is (or was) what does the reasonable employer do to assist the paramedic to deal with the compounding trauma from the exposure that is inherent in their work.
Mr James was a paramedic based at Mt Isa who worked shifts at Doomadgee (which is, according to Google maps, 612kms north of Mt Isa; 2198km north-west of Brisbane or 1833km south-east of Darwin). Whilst at Doomadgee Mr James attended three horrific incidents, one involving a young boy who was mauled to death by dogs and two involving the sexual assault of young girls, one of whom was a similar age to his own daughter. Between the second and third of these events Mr James was attending Mt Isa where he ‘reacted badly to being publicly corrected during training’ ([5]). These events all occurred between 30 September 2004 and 13 November 2004. (The judgement, at [5], says the last two events were in 2014 but that must be an error). Mr James left QAS on 23 November 2004 and was unable to work for the next 10 years.
In 2008 Mr James lodged a common law claim alleging that the QAS had been negligent in its response to the traumatic events that he had been exposed to and that, given his behaviour at the Mt Isa training, the QAS should have been aware that he was suffering from mental ill health and taken further steps to support him and provide treatment. Although the claim was lodged in 2008 ‘the plaintiff [Mr James] did not press for the trial to be heard until recently, well over a decade after the events’ ([1], note 1). The case was heard between April and August 2018 and judgement delivered on 10 December 2018.
QAS recognised the risk to paramedics in 2004. They had introduced a scheme to assist paramedics affected by their work. At [9]:
Priority One involved four core support services, namely:
- peer support by peer supporters,
- self-referral counselling,
- a telephone counselling service, and
- critical incident stress debriefing (“CISD”).
When the case came to be resolved there were three issues for the court to consider. They were (at [15]):
- the adequacy of Priority One,
- the alleged failure to activate CISD, and
- the alleged failure to respond to the training incident as signalling a need for intervention.
Mr James did not allege that if QAS had a more effective support scheme and/or implemented a CISD he would not have had adverse effects from the exposure to the three clinical events, but that the alleged negligence by QAS ‘caused him to suffer a more severe and prolonged psychiatric injury than would otherwise have occurred’ ([16]).
The adequacy of Priority One
After the first event Mr James gave evidence of multiple attempts to contact the Peer Support Officer that were unanswered. He also gave evidence of other attempts to engage with the Priority One system that did not work out. The problem for him was that his evidence was contradicted by others, by file notes made at the time and by statements made by Mr James to WorkCover and to investigator’s looking into complaints that he had made about the conduct of other officers following the incident at the Mt Isa training.
In response to the claims QAS provided details of the Priority One scheme and the training that had been provided to QAS officers both on how to recognise symptoms of mental ill health and how to access the confidential support services provided. The key issue was that it was up to paramedics to make contact with the peer support officers, the telephone service or the counselling service and they could do so without knowledge of and with no report to QAS. The only time officers might have been asked to attend debriefing was if a CISD was called, but CISD was (at [9]):
… applied to groups. That is, while all four services were calculated at assisting staff in dealing with clinical incident stress, it was only CISD which was calculated at providing such assistance to multiple persons when together as a group.
It followed ([141]) that there were ‘… systems and policies for provision of peer support and professional counselling to paramedics in isolated stations’. Further there was ‘no substance to the general allegation Priority One was not an adequate and sufficient response to the risk of psychiatric injury’. The crucial claim that Mr James had to make was that the QAS should have taken more action to ensure that Mr James took advantage of the services offered ([142]-[143]). The system adopted by QAS was however ‘A system respectful of individual autonomy’ [144]. That is it was up to the paramedics to determine if they needed or wanted assistance and to make contact with the Priority One service. One might think that it is unreasonable to leave it to the paramedics, but equally people don’t want to be hounded or pressured to seek care. At [146]-[149] Henry J said:
The recommendation that staff should “seek help” if experiencing such feelings is consistent with the underpinning philosophy of Priority One that to preserve staff control over their own destiny, it informs and empowers staff about when and how to seek assistance so that staff control the seeking of assistance rather than assistance being imposed upon them. In a similar vein, the code of conduct for PSOs [Peer Support Officers] stipulates in its code of ethics that PSOs should “respect an individual’s autonomy and ability to make decisions for themselves”.
So it was that, rather than mandatorily imposing psychological assistance upon its individual employees, QAS educated its employees in understanding and recognising signs of critical incident stress, equipping them with the knowledge necessary to be aware of its potential effects upon them and the means of seeking assistance to cope with those effects.
The notion inherent in Mr James’ case, that the QAS should not have left it to him to make the choice to request assistance and was instead obliged to “ensure” he received assistance, fails to give due deference to the autonomy of the individual. The employer’s obligation is to take reasonable care, not invasive or dictatorial care.
The importance of individual dignity and privacy in this context was explained by Keane JA as he then was in Hegarty v QAS, a case also involving Priority One. His Honour observed:
“The area of debate in the present case concerned the extent to which the defendant was duty-bound to ensure that its superior officers should intervene with individual ambulance officers in relation to possible signs of deterioration in their mental health. The private and personal nature of psychological illness, and the consequential difficulties which attend the discharge of an employer’s duty in this respect, must be acknowledged as important considerations. The dignity of employees and their entitlement to be free of harassment and intimidation, are also relevant to the content of the duty asserted by the plaintiff. …
In cases of apprehended psychiatric injury, unlike cases concerned with amelioration of physical risks in the workplace, important values of human dignity, autonomy and privacy are involved in the formulation of a reasonable system of identification of psychiatric problems which may warrant an employer’s intervention and the making of a decision to intervene. An employee may not welcome an intrusion by a supervisor which suggests that the employee is manifesting signs of psychiatric problems to the extent that help should be sought… .
Employees may well regard such an intrusion as an invasion of privacy. Employees may rightly regard such an intrusion as a gross impertinence by a fellow employee, even one who is in a supervisory position.”
Further QAS had tried a process of mandatory intervention and had found (at [153]) that it did not improve outcomes, was unappreciated by operational staff and:
…more damage was being done to the already well established level of goodwill built up by PSOs by persisting with what was perceived to be, and was variously described as the “unnecessary and intrusive” pursuit of ambulance personnel following attendance at cases.
Mr James faced great difficulty arguing that QAS should have ‘ensured’ that he sought assistance when QAS had previously tried that and determined, based on evidence, that this was counter-productive.
The trial effectively confirmed the merit of Priority One’s systemic respect for individual autonomy and the right of individuals to decide for themselves whether to use the assistance made available…
The alleged failure to activate CISD
The CISD process was intended to apply when a group of officers had been involved in a traumatic event. It was not a process for one-on-one debriefing and there was therefore no negligence in not implementing in circumstances it was not designed for ([156]-[181]).
The alleged failure to respond to the training incident as signalling a need for intervention
MR James had walked out of a training session and used abusive language about the trainers and his colleagues. He argued that QAS should have understood that his ‘behaviour was so aberrant or unusual that it should have been realised he needed to be provided with psychological support and not sent back to Doomadgee’ ([182]). Henry J said ([183]-[187]):
The unstated premise of the alternate case is that what occurred was not explicable in the normal course of events. However, it was explicable in the normal course.
The evidence surrounding the episode has already been analysed at length. It shows Mr James was not keen to participate in the training, raising issues about venue and the inconvenience caused to Ms Barr. More significantly Mr James was ill-prepared for the training. Mr Shepherd noticed Mr James did not seem to have done the background study. Mr James told persons at the training he feared he was not going to pass. Then, not only did he make an elementary auscultation error, he was also corrected indelicately about it in front of others.
These were all considerations which readily explained why Mr James suddenly left the training, using abusive language once downstairs and departing. They were all considerations connected directly to the training.
Further, there is no evidence suggesting that in the aftermath of the training episode Mr James made any link between his behaviour at the training incident and the first and second incidents. He clearly regarded it as an industrial issue relating to how he had been treated in respect of the training.
When there existed such obvious collective and connected reasons for Mr James’ outburst of bad behaviour at the training episode why would the employer have looked beyond them for some other less obvious explanation for his conduct? Mr James’ behaviour was explicable in the normal course. It may have been bad behaviour but it appeared to have arisen as an obvious result of his issues regarding the training. His behaviour was not such as to, as Mr James contends, “raise a red flag” indicating to QAS that he needed some form of debriefing or other psychological support. The supposed failure to respond to it as a sign there was a need to intervene and provide such support was not a breach of QAS’s duty of care.
Mr James was provided with offers of support
The problem for Mr James’ was that he was provided with offers of support. Despite his claims that he had tried to contact peer support officers without success the evidence was that there had been contact with his peer support officers after each incident. His Doomadgee colleague approached him, a local peer support officer made contact and in response to queries about how he was travelling he answered (generically) ‘Yep, it’s OK. I’m right, mate. It’s good.”, or words to that effect’ ([32]). Offers were made to bring him back from Doomadgee and to contact the Priority One counsellors on his behalf ([44]) but these were all declined. He also spoke to clinical officers and colleagues, but each time affirmed that he was ‘ok’.
With respect to the training incident a number of documents were produced to deal with what was, in effect, a breach of discipline. At [84] Henry J said (emphasis added):
None of the above materials, including those generated by Mr James, contained any reference to the first or second incidents at Doomadgee, let alone identified their potential connection with Mr James psychological state or his conduct in and after the training incident. Nor did they allude to him not feeling right in the head at training. Mr James claimed that was because they were about the training not how he felt, however some of the documents did touch upon Mr James’ feelings regarding what occurred at the training episode and its aftermath. These are significant matters. If Mr James was not making any link between the training episode and the first and second incidents it is hardly surprising his employer made no such link.
There was further evidence of contact with colleagues and peer support officers. After the third incident (at [104]):
On [the PSOs] account, [Mr James] told her that he “wasn’t in a very good way”. Her impression was that he “wasn’t travelling very well at all”. She testified that she asked him to seek assistance with Priority One and the counsellors and offered again to make appointments for him, but he declined, explaining he would be home in a few days. She testified she also asked him if he wanted her to arrange with the managers to have him relieved to come home, but he declined. Mr James could not recall speaking to her about the possibility of arranging relief to come home.
Discussion
I have discussed elsewhere in this blog the value the law places on personal autonomy and the right of people to make their own decisions regarding health care, including mental health care (see for example Victorian decision on refusing medical treatment – reviewing the principles (November 24, 2018)).
It is well known that people in the emergency services are exposed to experiences that most us would only imagine in our worst nightmares, but even so they retain the right to autonomy. More so responders are likely to see intrusive demands that they seek care as challenging their sense of resilience and worth. The report on the QAS trial of mandatory intervention said (at [154], emphasis added):
“The frequency of follow-up and the perceived if not implied message embedded in the frequency of follow-up was beginning to have a reverse effect. Rather than projecting a “caring and supportive” message the implication was “personnel may not or would not cope with the event”.
This goes to the core of key features of contemporary understanding of coping mechanisms within emergency services personnel. In particular individuals intuitively select into this occupational setting and have a robustness or resilience about their perceived capacity to cope. Research by Shakespeare-Finch (2002) found that paramedics recognised that whilst an event may be objectively distressing and unpleasant they are able to simultaneously articulate positive benefits to them; positive benefits of their involvement with the event which offset the distress. Also of importance in this matter are findings by Orner (2000) suggesting that ambulance personnel “know” when assistance is required and are able to identify and access assistance when appropriate for them.
There are some instances in which proactive support can and should be offered and which is greatly appreciated by ambulance personnel, specifically in the event of the death or injury of a work colleague. However the assumption that follow-up should occur on a case by case basis when it is “thought to be” distressing is unnecessary and often unacceptable, and indeed appears to diminish the benefits of having a sensitive responsive support program which promotes resilience.
See also Negligence claims relating to PTSD (May 14, 2018).
The problem for Mr James was that so long after the event people’s recollections vary and more importantly people retell the story in their own minds to better reflect their perceptions. Mr James’ story that he was not offered support was contradicted by the evidence of everyone else involved. He was offered support but declined to accept it. One can imagine the cultural environment where it is perceived as unacceptable to respond to the question ‘R U OK?’ with ‘no I’m not’ but if you do not answer honestly you cannot expect people, including colleagues and employers, to disregard your claim and treat you as if you are not OK when you say you are.
Respecting a person’s autonomy also means that the person has to accept responsibility for the choices they make. Mr James had support options but chose not to use them. Both respect for autonomy as well as theory and evidence said that allowing him to make his own choices would have a better outcome. And one can imagine claims of uncaring bullying if a paramedic was constantly being urged or required to undertake counselling or taken off the road because a supervisor thought he or she was not coping despite their protest that they are.
Conclusion
In finding that there had been no breach of the duty of care owed by QAS to its employed paramedic, Henry J described (at [2]) Mr James’ case as:
… an exercise in hindsight identification of a means by which his injury might have been avoided by an all-knowing and intrusive employer. It fails to acknowledge his employer did take reasonable care, conscientiously educating him about signs of adverse reaction to traumatic events and providing a system of support which respected his autonomy and was a reasonable response to the risk of injury from exposure to such events.
Australian Emergency Law 