Today we revisit the question of practice what you know or practice what the organisation you’re working for says. In context let me be clear I’m talking about treatment that is required to save a patient’s life or to save them from permanent disability. Not treatment that might be convenient or ideal but is not time critical.
Today’s correspondent is a paramedic who sees that
There is a varying scope of practice currently between the different sectors of Paramedicine in Australia. After recent legal cases involving the deaths of patients at festivals, it would be good to get some clarification on where paramedics stand in regards of whether they practice to their trained scope or whether they provide the standard of care that the private company scope allows even in situation where the required equipment is available. The answer to this question may be a little obvious though in the eyes of the law and recent AHPRA registration I’d like your take on where paramedics stand legally.
Let’s give this some context. Let us assume that my correspondent is trained in, and competent to perform, intubation and does so as part of his or her duties when working with the jurisdictional ambulance service. Today he or she is working for a private provider at an event and intubation is not within the scope of practice defined by that private provider, but, for whatever reason, an intubation kit is available. A patient comes in with a compromised airway, intubation is indicated and will improve their chance of survival. What do you do?
If you don’t intubate the patient dies but you can say you ‘stuck to the company’s procedures’. Remember the story of the death of Allison Hume ([2011] FAI 51; see Legal confusion leads to unnecessary death (December 8, 2011)):
[The Incident Controller] in particular, considered that the rescue operation was “a success”. In his view he had adhered to the policies and procedures set out by Strathclyde Fire and Rescue Service. He had obtempered to the letter the instruction contained within the Memoranda from Strathclyde Fire and Rescue Service of the 14 and 27 March 2008. There had been no casualties other than the one to whom the Service was called upon to rescue.
Unfortunately this was not a successful operation: a woman died who had … survivable though life threatening injuries…
You can ‘obtemper’ (‘obey, comply with’) the company’s ‘scope of practice’ but no-one is going to think that the outcome was a success if the patient dies when they could have been saved.
If you’re afraid of liability who’s going to sue? The family of the patient who life you save? Or the family of the patient you let die even though you had the skills, knowledge and equipment but you wanted to make sure you in no way ventured outside the protection of vicarious liability.
As for professional standards, it is ‘unprofessional conduct’ to engage in ‘conduct that is of a lesser standard than that which might reasonably be expected of the health practitioner by the public or the practitioner’s professional peers…’ (Health Practitioner Regulation National Law s 5). How would peers see conduct by a paramedic who is at work, caring for a patient, who has the skills and equipment necessary to save a life and fails to do so?
If you can save the patient’s life, do so. If you’re afraid to do so for fear or repercussions from your employer or because you’re afraid you may step out of the shield of vicarious liability it’s time to stop and rethink whether you believe you are competent and to ask why are you working for this company? If you aren’t willing to back yourself, then maybe it’s time for a new profession.
Conclusion
Don’t let the patient die if you can avoid it.
For related posts see https://emergencylaw.wordpress.com/page/3/?s=volunteer+scope+of+practice
Australian Emergency Law 
Ok, but there may only be one ambulance service that is a viable employer in the state. What happens if I disobey their guidelines, attempt to save the patient, the patient still succumbs to their injury and now I face disciplinary action from my employer? Even if the patient survives they won’t sue but my employer can still engage in disciplinary actions for stepping away from their published guidelines. I could still lose employment or have sanctions placed against me. Where would I stand at unfair dismissal if it got that far.
You’ve answered the question yourself, where would you stand? You would argue taking into account all the factors that a court is required to take into account in an unfair dismissal action that terminating your employment for saving someone’s life when that is your job is unfair. And why would your employer act like that? Imagine the press headlines – “ambo sacked for saving patient’s life” – the reputational damage would be enormous. But if you really feel your damned if you do and damned if you don’t, it’s your call on what’s going to be easier to live with.
Geoff’s post alludes to a broader discomfort that Paramedics seem to have with any form of scrutiny or review. Perhaps this is an area of professional education where we could give both new and old staff some reassurance that reviews and external scrutiny are not generally adversarial. On the other hand, many of our jurisdictional ambulance services don’t have a good track record of supporting their staff or providing a safe environment for continuous learning and quality improvement. Whilst adverse findings against individual clinicians have been rare, the personal repercussions of any form of investigation remain significant, and substantially not in accordance with reasonable community expectations.
So from the employer perspective they can’t set limits on practice? If they set guidelines on levels of care and then paramedics exceed or step away from in the interest of saving a life them how can the service protect itself and ensure that these extra skills are being performed competently or safely? We have a number of highly qualified practitioners from overseas where training and skill set is higher. Can these practitioners perform at the standard of their old service (assuming they still feel competent to carry out that skill)? I ask in the instance of life saving treatment only. Nice to have skills for patient comfort etc. are obviously not what your article addressed. I do feel that some services do limit life saving treatment for a variety of reasons (training and equipment costs, maintenance of competence, safety) and as a community we set similar limits – often around cost of service to the tax payer / consumer.
That’s my view. If you have a skill set to save a life you should do it. If there are equipment costs, then presumably equipment is needed and if the equipment is not there you can’t use it. If there are maintenance of skills issues and the practitioner hasn’t done the procedure in some time, he or she may decide they are not still skilled. If the procedure can be done by others on scene or coming on scene and treatment can wait, then wait. But if the person’s going to die, and you have the skills to make the best effort to stop them, the law does not say ‘you must not’. It may say you have to act ‘reasonably in all the circumstances’. In most cases the law will not say you must act to save their life SAVE THAT if you are an Australian registered paramedic you must not ‘engage in ‘conduct that is of a lesser standard than that which might reasonably be expected of the health practitioner by the public or the practitioner’s professional peers…’ and so you have to consider what would they expect? If you have the skills and the equipment and the employer says ‘don’t do that’ you may have to say ‘sorry, I’m a registered paramedic and this person needs my care and I’m going to do what I know is indicated and I am competent to do to maximise the chance of their survival’. You’re not going to be sued, or disciplined by AHPRA, I can’t say what an employer will do, but neither can you. And lets assume it really is a choice, if I save them my employer will punish me and if I don’t AHPRA will, what would you prefer, to be able to stand up and say ‘I tried to save their life, do your worst’ or ‘I didn’t do my best for my patient because my boss told me not to’?
Thanks Michael, I think we are all on the same page it’s just an interesting thought experiment when there is an interplay between the requirements of the law (including AHPRA), community expectations, employer expectations and personal beliefs/capabilities. I don’t doubt that any of my colleagues would act in any way other than in the best interests of the patient.
Geoff, I’m not sure we are all on the same page. I was recently a participant in a discussion with a senior, decision making member of a statutory ambulance service who clearly stated that it was their organisations position that they would remain the only determinant of what interventions an individual clinician was to administer, and that any individual’s decision to treat in accordance with the patients condition in the manner described above would be the subject of internal disciplinary procedures up to and including including dismissal. The reason given for this position was that individual clinician decision making exposed the organisation to broader liability in the event that the patient died and the patients family sought to recover against the organisation.
At a very senior senior level these views still exist.
And my view is that their risk of liability is MUCH higher if that they stop a person saving the patient’s life when they could. The patient’s family are unlikely to sue if it can be shown that people did all they could; they’re much more likely to sue if it can be shown there was more that the person could do but failed to do due to a policy.
I am an admitted legal practitioner with a licence from the ACT Bar Association. My primary duty is to the court, not my client nor my employer. If my employer directed me not to do things that I am required to do as a legal practitioner then my duty as a legal practitioner comes first. Legal academics don’t have to be admitted legal practitioners and those that are do not have to hold a practising certificate so in one sense I am not employed because I am a practising lawyer. But that doesn’t mean my employer can tell me to do things that are illegal or unethical. If my employer directed me to do, or not do, something that conflicted with my responsibilities as a legal practitioner my responsibilities as a legal practitioner win every time.
A paramedic’s duty is to provide good paramedic care to the patient’s in his or her care. If the employer says ‘we don’t want you to do ‘x” but ‘x’ is within his or her competence, clinically indicated and the impact of not doing it is that the patient dies, then the obligation as a paramedic has to trump the employer’s edict. It does not expose ‘the organisation to broader liability in the event that the patient dies’. And why assume the patient will die. Consider that if the patient will die without ‘x’ doing ‘x’ and saving the patient’s life reduces the risk of liability. (Remember that liability is not automatic; just because someone dies it does NOT mean that someone must be liable).
Damned if you do; Damned if you don’t.
If you relieved a tension pneumothorax, and there was a significant complication (such as you mistakenly punctured an artery and the patient bled out), then you’ll have to answer for it.
If you didn’t release the pnuemothorax, and people knew you had training and competency to perform a thoracocentesis, and the patient died, then you’ll also have some explaining to do.
However in such cases I much rather have tried to save the person’s life than didn’t at all. To have to explain to the deceased family that I could have but didn’t because of departmental policy and guidelines, is a fairly poor reason.
I’m not sure what you mean by ‘you’ll have to answer for it’. It depends on the circumstances. It may be clear that there was a significant trauma and the cause of death may be put down to that. If there is an autopsy (and there isn’t always) there may be a question but again that may be accepted as part of the consequences of the trauma. That ‘you’ll have to answer’ for it assumes that every death is subject to detailed inquiry, and they are not (though a surprising number are). I agree with you though, and if the patient’s in a life or death situation if you try and they die, you haven’t made the situation worse.