Today’s correspondent has two

… (semi-related) queries –

Question 1

First query pertains to Patient Care Records for Paramedics when treating someone OUTSIDE of work. I understand that it would be a relatively rare occurrence, however if you were to assess / treat someone (whether it be a family member, friend or other individual) in a private / alternative setting (for instance, at their private residence or in an austere environment with prolonged arrival times for emergency services) would you be required to document your assessment and treatment of the patient? Is there a legal obligation to create and maintain these records?

I’m excluding instances where one might provide “emergency assistance” e.g. Assisting in a cardiac arrest or at a motor vehicle collision. I’m purely interested in whether assessing and treating an individual at their request (as they may know you are a Paramedic) OUTSIDE of work would require appropriate documentation for patient safety and legal reasons.

Question 2

The second question pertains to Registered Healthcare professionals signing / writing “medical” certificates. I’ve had a lot of people jokingly ask me for sick notes to get a day off of work. Other than the clear ethical issues in providing friends and family with these certificates (even with full assessment and honest clinical judgement), I was wondering what abilities registered healthcare professionals have in regard to providing these certificates. I understand that medical certificates must be written by a registered medical practitioner, so obviously Paramedics cannot sign these – however theoretically could a Paramedic sign an alternative (Paramedical) form stating that they were assessed by a Registered Paramedic and deemed unfit for work for that day?…

(I’ve edited the question to make it shorter, but I assure you the correspondent is not saying they want to write medical certificates so there is no need for comments about someone overreaching or wanting to get themselves into trouble – it’s a ‘what if’, not ‘may I’ question).

Question 1

There is no legal obligation to keep a record, but it’s good practice – the old adage is ‘good records, good defence; bad records, bad defence; no records, NO defence’.    Written away from work, notes made at the scene will not be a business record so cannot be tendered into court to prove that the very things recorded really did happen.

That is the case with say patient records created in the course of employment – a court can trust them to record what did (and not record what did not) happen otherwise they would be of no value to the business.  You can then rely on them, later, so a witness may say ‘I can’t recall what I did but the patient record says I administered drug x and that is evidence that I did in fact administer drug x’.

Records, written at the time or immediately afterwards – contemporaneous notes – may be used as an aide memoir.  Later down the track when asked what happened you may answer ‘I can’t recall but if I read my notes that I wrote at the time, then that does help me remember and now that I have read them, I can recall that I did ….’ Or ‘I can’t recall but this is what I wrote …’

For more information see Michael Eburn, Emergency Law (3rd ed, 2010, The Federation Press) pp. 18-20 (and yes there is a 4th ed, but at the time of writing this post, I can’t put my hand on a copy of the 4th ed, but the page numbers will be something similar – chapter 1 in any event).

The Code of Conduct (Interim) for paramedics, issued by the Paramedicine Board in paragraph 8.4 discussed health records.  It starts with ‘Maintaining clear and accurate health records is essential for the continuing good care of patients or clients’ but that is only relevant if the paramedic is writing notes to pass onto to other members of the health care team, eg patient records of treatment en route that will be handed to hospital casualty staff.  Keeping a note of what you did that you don’t intend to pass onto anyone else is not quite the same thing.

Conclusion on Question 1

The real issue is whether in assessing someone the paramedic is practicing their profession – ie actually in some form of business and client/practitioner relationship or not.  If they are then like any health practice, they should keep records.  If they are not, and I don’t think having a family member or friend ask ‘what do you think about this…’ is practicing the profession, then it’s a good idea but not legally required.

(For professional practice you look for:

… evidence of continuity, of repeated acts; one would look for evidence of payment for those acts; one would look for evidence of seeking business from members of the public, or at least from other [practitioners]; one would look for evidence of a business system; one would look for evidence of maintaining books and records consistent with the existence of a practice; one would look for evidence of a multiplicity of clients.

Legal Services Commissioner v Bradshaw [2009] LPT 21, Fryberg J cited in Michael Eburn ‘Registered paramedics, insurance and first aid – looking for coherence in law’ (2019) 16 Australian Journal of Paramedicine DOI: https://doi.org/10.33151/ajp.16.663)).

Question 2

A paramedic can write and sign a Paramedic Health Certificate.  I could write and sign a certificate saying I examined someone, and, in my view, they are not fit for work or school.  It’s not a question of whether you can do it, it’s a question of whether anyone else has to believe it or accept it.  I could write a certificate but unless it’s addressed to the head of my infant child’s school and relates only to the health of my infant child, my certificate is meaningless.  It may record that I actually did examine the person and it may record my actual and honestly held opinion, but who cares?

The Fair Work Act 2009 (Cth) s 352 says:

An employer must not dismiss an employee because the employee is temporarily absent from work because of illness or injury of a kind prescribed by the regulations.

Regulation 3.01 of the Fair Work Regulations 2009 (Cth) says:

A prescribed kind of illness or injury exists if the employee provides a medical certificate for the illness or injury, or a statutory declaration about the illness or injury…

within certain time frames.  A medical certificate is ‘a certificate signed by a medical practitioner’ that is ‘a person registered, or licensed, as a medical practitioner…’ (s 12).  Not a paramedic, and not a pharmacist.  Accordingly, if a doctor writes a certificate that you have a ‘prescribed kind of illness or injury’ then that is evidence that you do indeed have that illness or injury and the employer cannot sack you.  A paramedic certificate is not relevant evidence (though the employer may choose to accept it).

I do note that pharmacists are issuing ‘absence from work’ certificates. The Pharmacy Guild says (at https://www.findapharmacy.com.au/our-services/absence-from-work-certificates)

Under the Fair Work Act 2009, pharmacists have authority to issue Absence from Work Certificates to people covered by the Act as proof of legitimate absence from work.

But I can find nothing in the Act or its regulations the specifically refers to pharmacists.

The Guidelines for pharmacists issuing certificates for absence from work (October 2010) have been updated (see https://www.psa.org.au/updated-guidelines-released-on-absence-from-work-certificates/) but I can’t find the 2018 guidelines online.   The 2010 guidelines say:

Under the current system of industrial law, employees can be required by their employer to provide certificates to verify certain absences from work…

A pharmacist’s certificate has to be able to “satisfy a reasonable person” of the relevant condition necessitating an absence from work (see s. 107(3) of the Act).

Section 107(3) says:

An employee who has given his or her employer notice of the taking of leave under this Division must, if required by the employer, give the employer evidence that would satisfy a reasonable person that…

the leave has been taken for a legitimate purpose.  The section appears in Division 7—Personal/carer’s leave, compassionate leave and unpaid family and domestic violence leave.  One of the grounds for paid personal leave is ‘because the employee is not fit for work because of a personal illness, or personal injury, affecting the employee’ (s 97).  I can see that a pharmacist’s certificate could be ‘evidence that would satisfy a reasonable person that’ the person that the certificate relates to was in fact sick, but I cannot see that there is any obligation upon an employer to accept it.

The Pharmaceutical Society of Australia says ‘While issuing absence from work certificates is within the scope of practice for pharmacists, they must comply with strict guidelines recognised by Fair Work Australia…’ (https://ajp.com.au/news/can-issue-sick-note/) but I can find nothing on the Fair Work Australia site to confirm that guidelines have been issued or adopted by them. Benedict Brook, journalist, reports in her article ‘$20 sick notes slammed’ (Daily Examiner (Online) 8 March 2018) that:

EMPLOYERS are increasingly concerned at the growth of paid-for sick notes which they say are being handed out like headache tablets in some pharmacies.

The so-called “absence from work” forms are available from major pharmacy chains and can be used in place of traditional sick notes from GPs…

But Innes Willox, Chief Executive of peak employer organisation the Australian Industry Group (AI Group) told news.com.au some bosses would be sceptical of notes obtained from a chain store pharmacy.

Pharmacists are not doctors and the Fair Work Act makes no reference to them being appropriately qualified to issue medical certificates for the purposes of personal/carer’s leave entitlements,” Mr Willox said.

“Many employers are likely to take the view that they are not satisfied with certificates obtained from pharmacists.”

The forms issued by pharmacists make no mention of the ailment the person is suffering from, simply the time frame for which the sick note is valid.

The Pharmacists Code of Conduct, issued by the Pharmacists Board, says (at [8.8])

The community places a great deal of trust in practitioners. Consequently, some practitioners have been given the authority to sign documents such as sickness or fitness for work certificates on the assumption that they will only sign statements that they know, or reasonably believe, to be true.

The Code of Conduct does not say by whom, or on what authority, pharmacists have been given this authority.

I agree with Mr Willox as quoted, above.  The Fair Work Act does not refer to them (see also Fair Work Australia ‘Notice & medical certificates’ (Page reference No: 1898)).  In short, an employer cannot sack an employee who has a medical certificate (s 352) and must pay a person for their sick leave if they have ‘evidence that would satisfy a reasonable person that…’ the leave has been taken for a legitimate purpose (ss 97 and 107) and that evidence may be a certificate from a pharmacist.

Equally an employer may accept that a certificate from a paramedic is sufficient evidence that a person really was sick.  For example, an employee may say that he or she was unable to be at work as they were sick and rang an ambulance, but the paramedics treated on site but did not transport- and they might tender the ambulance record as proof of that attendance.  And that may be accepted for sick leave purposes.

‘[I]ssuing absence from work certificates is within the scope of practice for pharmacists’ (https://ajp.com.au/news/can-issue-sick-note/ and Pharmacists Code of Conduct) and it could, in due course, become part of a paramedic’s scope of practice.  Until it does a paramedic could write a note saying that they examined someone and formed the view that the person was ‘not fit for work because of a personal illness, or personal injury’.  Whether an employer (and if push came to shove, Fair Work Australia) would accept that this was ‘evidence that would satisfy a reasonable person that’ the person was indeed not fit for work remains to be seen.  At least initially, an employer could accept that, or reject it, it would be up to them.

Paramedics do of course write reports in their patient records and these are useable to prove the facts recorded – that the paramedic formed the view that the person had a certain injury or illness, that various treatments were administered and, perhaps, how they were injured (but see Lithgow Council v Jackson [2011] HCA 36 (28 September 2011) (October 5, 2011)).  That information may be in a patient care record or a statement later given to police or legal advisor’s in any dispute between the patient and the person who is alleged to have caused their injuries.  That is a certificate as much as a form ‘Absence from Work’ certificate.

Certificates may be required for other reasons, to seek an extension on assignments, to demonstrate eligibility for a social security benefit, to get a parking permit etc.  Whether the certificate has to be signed by a doctor or other evidence is acceptable would depend on the legislation (for example Fair Work Regulations 2009 (Cth) r 3.01 that requires a medical certificate) and the attitude of the decision maker if there is no strict requirement (as in Fair Work Act 2009 (Cth) s 107 that only requires ‘evidence’).  Where all that is required is ‘evidence’ it is up to the decision maker to decide if a certificate signed by a paramedic is acceptable.

Conclusion on question 2

Writing a certificate is no more than writing a letter setting out the author’s honest opinion.  It may say ‘this person is not fit for work’ or it may say ‘I examined the person, I did these tests…, I observed these things …, I formed the opinion that they had this illness or injury and, on that basis, I formed the opinion that they are not fit for work’.  It doesn’t really matter whether it is written as a letter or filled out on a notepad of form certificates.  Regardless of the detail it should report the honest opinion of the letter writer.

It stands to reason that a paramedic can write a letter, or a certificate, reporting his or her opinion.    Whether anyone would accept it as evidence that the person was, in fact, not fit for work and therefore entitled to paid personal leave is quite another matter.