Today’s question is about
… the legal position of a paramedic who is required to supervise a new student in WA. I understand the clinical side, however I wonder what would happen if a student was involved in a road traffic accident, having received no formal emergency response driver training prior to my giving ‘supervision.’
When putting this question to my employer I was informed that the law does not allow for them to carry out emergency driver training and so the very first time that a student drives under these conditions is for a real event. In addition to this, I expressed my concerns about not being trained to train in emergency driving so would I be liable if a student crashes? No clear answer was given.
Furthermore, these situations bring about ethical issues with regard to the need for emergency transfer to a hospital. If my student is not allowed to drive, then I have to. The dilemma being to leave a student in the back with a very sick patient and I drive, or await backup, which of course both cases may be detrimental to the patient. Would I be considered negligent due to the fact that I am both trained and registered and would knowingly be causing possible harm by not providing care because my colleague was not trained appropriately to carry out the drive?
My employer’s response was to await back up- which could be too late, or have the student drive under normal conditions, which again may cause harm.
This all seems to be a grey area, but one which needs clarity. Any advice would be appreciated.
With respect to your employer it’s not really a ‘grey’ area.
With respect to liability there are two types, civil liability to pay damages and criminal liability.
With respect to civil liability every vehicle carries compulsory third party insurance to ensure that anyone insured as the result of the negligent operation of a motor vehicle is paid compensation – see Motor Vehicle (Third Party Insurance) Act 1943 (WA). Further, in conjunction with the roll out of the National Disability Insurance Scheme, the states and territories are developing a National Injuries Insurance Scheme. This ‘no fault’ scheme is beginning with catastrophic injuries from motor accidents. A person who suffers catastrophic injuries will receive assistance whether they can prove another person was at fault or not (Motor Vehicle (Catastrophic Injuries) Act 2016 (WA)).
In either case it is the third-party Insurer who is liable. The insurance covers ‘any liability which may be incurred by the owner or any person who drives the motor vehicle in respect of the death of or bodily injury to any person directly caused by, or by the driving of, the motor vehicle’ (Motor Vehicle (Third Party Insurance) Act 1943 (WA) s 4; emphasis added).
The short answer is that if the student causes an accident that injures some other person, whether the injured person sues the ambulance service or the driver, the third-party insurer will be liable.
With respect to damage to property it will be the ambulance service that will be liable as the student is driving their ambulance. And if anyone tried to make the supervising paramedic liable he or she is an employee and so the service would be vicariously liable.
With respect to civil liability the supervising paramedic will not be liable.
There are a number of traffic offences that may be committed, dangerous driving, negligent driving, failing to obey a traffic signal etc. Liability for those offences always falls on the driver. For example s 59 of the Road Traffic Act 1974 (WA) says (emphasis added):
If a motor vehicle driven by a person (the driver) is involved in an incident occasioning the death of, or grievous bodily harm to, another person and the driver was, at the time of the incident, driving the motor vehicle —
… in a manner (which expression includes speed) that is, having regard to all the circumstances of the case, dangerous to the public or to any person,
the driver commits a crime and is liable to the penalty in subsection (3).
There are circumstances where an instructor may be deemed to be in charge of a motor vehicle (s 49AA) but those circumstances are limited to a licensed driver instructing a learner driver. One assumes the student paramedic has a driver’s licence (if they don’t that’s a whole different matter). As a licensed driver it is up to them to drive safely and to recognise their own limitations – and not crash the ambulance.
The supervisor will not be liable unless the supervising is actively and knowingly urging the student to do something stupid, but I assume that is not the case so will not discuss that further.
Does the law allow for them to carry out emergency driver training?
It does not allow for training on a public street, that is the rules that give an exemption from the road rules and which require others to give way are predicated on the fact that there is an emergency. Driving under lights and sirens for training purposes cannot be justified under those rules; but that simply suggests that training should be conducted off a public street, not that there should be no training – see for example NSW Police Student Driver Training.
Can the student drive?
That does not mean they are not allowed to drive or drive under emergency conditions. For the purposes of the Road Traffic Code 2000 (WA) an emergency vehicle includes ‘an ambulance, answering an urgent call or conveying any injured or sick person to any place for the provision of urgent treatment’. It does not say that the driver has to be an employee of the relevant ambulance service.
If there is a policy that restricts the student to non-emergency driving that is a service policy, not a rule of law.
Drive or patient care?
The issue of whether the paramedic drives under lights and sirens or gets in the back with the patient and asks the student to drive without lights and sirens has to be a question of what is in the best interests of the patient. One would assume that getting care from a paramedic is likely to be more beneficial than whatever extra speed is gained by an urgent response.
It might be negligent to put high speed driving ahead of advanced clinical care if a patient was more likely to benefit from care than high speed driving. Here one has to ask really how much benefit one would get from using the lights and sirens to get the patient to hospital. How much time is really saved and how much extra stress is caused to everyone by the sound and movement of the ambulance? And if there’s a crash along the way that’s bad for everyone. I appreciate that I am not a clinician, but I find it hard to believe that in most if not all cases, the net benefit to the patient would favour ‘load and go’ without paramedic intervention rather than provide paramedic care and get the driver to drive at a reasonable and lawful speed.
A single responder may have to ask someone else to drive whether that’s a good Samaritan bystander, a member of the SES or some other agency. In those circumstances you would not expect them to use the lights and sirens so it’s probably similar with a student.
I think the employer’s response – “… await back up- which could be too late, or have the student drive under normal conditions, which again may cause harm” – has to be correct. Everything carries risks. Waiting back up may delay the patient’s transfer to hospital but modern paramedics should be providing some benefit during the wait. Having the student drive under normal conditions may ‘cause harm’ as it may be a slightly slower trip to hospital but having a student drive under urgent conditions may also cause harm both because it affects the efficiency of care in the ambulance and increases the risk of an accident. It’s all about risk assessment – what’s the bigger risk to the patient – taking longer or having an untrained person drive under emergency conditions?
Occupational Health and Safety
The Occupational Safety and Health Act 1984 (WA) provides that (s 19):
An employer shall, so far as is practicable, provide and maintain a working environment in which the employees of the employer (the employees) are not exposed to hazards and in particular, but without limiting the generality of the foregoing, an employer shall — …
(b) provide such information, instruction, and training to, and supervision of, the employees as is necessary to enable them to perform their work in such a manner that they are not exposed to hazards…
And (s 21):
An employer … shall, so far as is practicable, ensure that the safety or health of a person, not being … an employee of the employer, is not adversely affected wholly or in part as a result of —
(a) work that has been or is being undertaken by —
(i) the employer or any employee of the employer; …
It may well be a breach of the Act to ask paramedics to instruct students in emergency driving without first ensuring the paramedics are trained to do providing that instruction and training.
Equally it may be a breach of the Act to allow a student to drive the ambulance (under emergency or non-emergency conditions) without ensuring he or she has had appropriate driver instruction which may require training at a training centre rather than ‘on road’.
The critical question is ‘liability’. The supervising paramedic will not be liable if a student crashes the ambulance.
As for the decision to drive or treat, the paramedic has to decide which of those options is in the patient’s best interests. I find it hard to believe that rushing under lights and sirens will be better for the patient than driving to hospital whilst providing paramedic care but that will be the treating paramedic’s call.
In VICPOL the first exposure to emergency driving involves playing a siren audio track in the vehicle, to desensitise the student to the stimuli.
In ambulance there is no legal provision to allow on road over speed training. Nor does there need to be. There are sufficient instances to allow adequate training in real scenarios.
We also need to disconnect lights and sirens from speed. The warning devices are there to request other road users to give way. It is not a magic lance that carves a path through traffic.
The devices allow expediency, not speed.
The treat or drive dilemma is a good clinical discussion, not a legal one.