A paramedic with NSW Ambulance has a question regarding
… the legal standpoint with unregistered trainee paramedics operating under our guidance if they do something wrong after being told to do it a different way causing an adverse outcome.
This comes back to the issue of vicarious liability. When someone rings for an ambulance they want an ambulance provided by the service that they rang, in this case NSW Ambulance. The caller has no control over who is in the ambulance or their level of clinical skill and the caller has no personal relationship with those paramedics. The caller has either rung triple zero or the ambulance service and it is the ambulance service that has responded.
Everyone who gets out of the ambulance is there representing ‘NSW Ambulance’ and NSW Ambulance is responsible for the level of clinical (and other) care that the patient receives. It follows that if there is a question of liability for an adverse outcome, it will fall to NSW Ambulance not the trainee nor the supervising paramedic.
But there are now, also, professional obligations. A paramedic must not engage in ‘[c]onduct that demonstrates the knowledge, skill or judgment possessed, or care exercised, by the practitioner in the practice of the practitioner’s profession is significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience’ (Health Practitioner Regulation National Law (NSW) s 139B). A failure to adequately supervise or instruct a trainee paramedic could fall within that definition but that would be more relevant where a trainee does ‘something wrong’ and the supervising paramedic does not correct them, rather than the scenario described above.
A registered paramedic also has obligations to report inappropriate practice. In particular a paramedic needs to report another health practitioner who has ‘placed the public at risk of harm because the practitioner has practised the profession in a way that constitutes a significant departure from accepted professional standards’. They are also required to make a report if ‘a student has an impairment that, in the course of the student undertaking clinical training, may place the public at substantial risk of harm’ (s 141). A prudent paramedic would also report to his or her employer or the student’s education provider if the student, although not impaired, is practicing in a way that is dangerous and where the student is refusing to accept correction or instruction as to his or her technique or procedure.
The health professions have always relied on practitioners to train students, it is one of the hallmarks of being a profession and certainly a hallmark of the health professions. No doubt trainee medical and nursing students (and others) have made mistakes and even caused adverse outcomes for patients. The supervising practitioner can only have legal consequences if the supervision has been inadequate, that is if they have allowed students to treat patients in a way that is beyond their skill level or having observed inadequate or inappropriate treatment have failed to take steps to correct it. That being the point of being a supervising trainer, to correct the trainee’s errors to ensure that when they finish training, they are competent.
Where the supervising trainer observes a trainee doing ‘something wrong after being told to do it a different way causing an adverse outcome’ the obligation of the trainer would be to again correct the trainee, depending on the nature of the adverse outcome and its seriousness report it. That may involve reporting it to the ambulance service so they can take action to advise the patient (see NSW Health, Open Disclosure Policy (3 September 2014)). It may involve reporting it to other carers, eg the hospital staff where the patient is transported to hospital, as the cause of the adverse outcome is part of the relevant medical history that they need to have in order to treat the person. As noted where the student refuses to accept instruction or correction then that needs to be fed back through the process of the ambulance service and the education provider that should have some way for supervisor’s to report on student progress.
But will the supervising paramedic be responsible in some legal way simply because there is an adverse outcome? No, that is not the law. Bad outcomes are not, in any legal rule, the sole determinant of liability whether that’s liability to pay damages, criminal liability or professional responsibility. If the supervisor has been actively engaged in supervision and corrected a student who still does the wrong thing, then the supervisor has behaved as one would expect ‘a practitioner of an equivalent level of training or experience’ to behave. And no-one, who is not an employer, is responsible for the negligence of others.