Today’s question comes from a Queensland paramedic who asks:
… if it is possible that someone is found civilly negligent for failing to apply the doctrine of necessity?
I am employed by a company that provides mine sites with paramedics (QLD), and I was discussing a hypothetical scenario with colleges in which we have a patient that urgently needs to go to hospital (a Myocardial Infarction was the hypothetical complaint) but QAS advised that there would be a significant delay in attending the patient. My colleague’s position was that it would be illegal to transport the patient to hospital ourselves according the Ambulance Service Act 1991 (QLD) section 43, and that they would remain with the patient on site, despite the significant delay in QAS providing transport, until QAS could conduct the transport. I disagree that that is the correct interpretation of that section of the Act, however, assuming that it was the correct interpretation, I believe the doctrine of necessity would apply, and I would transport the patient anyway. I also believe that following the law so strictly, even when it would clearly harm the patient is unethical, if not negligent.
I agree with my correspondent.
First the Ambulance Service Act 1991 (QLD) s 43 says (emphasis added):
A person, other than the chief executive or the commissioner, is not to directly or indirectly imply that the person provides or participates in providing ambulance transport without the approval of the Minister and except in accordance with such conditions (if any) as the Minister may impose.
That says that a person is not allowed to claim that they provide ambulance transport. It stops marketing of private ambulance services (see also s 48 ‘Restricted use of words ‘Ambulance Service’’) but it does not say that a person cannot transport another person to hospital. If that is what meant, then it would be an offence everytime someone drove a family member, or work colleague, to hospital rather than calling an ambulance.
I agree with my correspondent that the view that driving the person to hospital would be contrary to s 43 is not a ‘correct interpretation of that section of the Act’. It’s then hard to assume, for the sake of the argument, that this is the correct interpretation, but I will do my best. Let me assume that the on-site paramedic is provided by a private company that has a contract to provide on-site health services to the mine site. Let me also assume that it has a Ministerial approval to operate but that approval says that it is limited to operating on the mine site. One would have to ask why the approval was in those terms? Does the Minister really want to ensure that a registered paramedic is not to take a person in urgent need of medical care to hospital in any circumstances, or is it really intended to ensure that the private company does not start offering services away from the mine site, eg in the nearby town? It’s hard to know both because we are, at this stage, simply imagining a prohibition and because, even if there was a real approval it will set out its terms but not the reasoning behind them. So for the sake of the argument I’ll assume that there is an approval to operate an ambulance service only on the area of the mine site and that the standard on-site procedures that are both documented and rehearsed is that if the patient needs transport to hospital, QAS are called and they attend the site, receive a hand over from the on-site paramedics and then transport to the public hospital.
With that assumption we can now imagine the patient that urgently needs to go to hospital with an acute myocardial infarction. The onsite paramedics have an ambulance capable of making the journey and there is no conflicting demand that would stop them (eg the mine can continue to operate even if they leave the site because there is another crew on site to continue to meet the operational requirements of the operator). A call is made to triple zero and they are advised that there will be a significant delay in the QAS response, a delay that is so long that there is no doubt that if the on-site paramedics drive to hospital they will get the patient to hospital before QAS would be expected to be on the mine site. Could the paramedic company be liable to the patient if the patient suffers an adverse outcome that would, on the balance of probabilities, have been avoided if they refuse to transport rather than wait for QAS?
That’s a really difficult question. Generally speaking, you cannot be under a duty to breach the law. If we think of issues of consent to treatment it is sometimes argued that a paramedic (or doctor) has to treat a patient because of their ‘duty of care’ but the duty to take reasonable care of your patient cannot extend to assaulting them or subjecting them to false imprisonment. Nor can a duty to come to the aid of a patient justify driving a vehicle in a way that is negligent or poses a subjective danger to the public. Part of the reason why that is the case is that for necessity to apply the response has to be proportionate to the risk. The risk to one person does not justify exposing others to death or injury. Overriding a person’s autonomy because of a risk of physical injury is disproportionate if respect for autonomy and the right of people to make their own choices is the pre-eminent interest that the law wants to protect, rather than life per se. There is also however a demand that people do obey the law. Necessity is like asking for forgiveness rather than permission so before the fact one can say ‘don’t do that it’s against the law’ but after the event one can say ‘ok we’ll forgive that this time as the benefit outweighed the harm done by the breach’. Saying that one may be forgiven is not the same as saying that one has a duty to break the law.
In Stuart v Kirkland-Veenstra  HCA 15 the widow of Mr Veenstra sued Victoria Police arguing that the police officers who observed her husband sitting in a car with a pipe from the exhaust into the car, should have detained him under the Mental Health Act 1986 (Vic). In the High Court the issue came down to whether or not the police had the requisite power. The police officers had determined that Mr Veenstra was not displaying the symptoms of mental illness so they did not have any power and did not detain him. Whilst the police may have owed a duty to exercise reasonable care that duty could only be a duty to do what they were empowered to do. In the High Court of Australia Gummow, Hayne and Heydon JJ said (at ) ‘There can be no duty to act in a particular way unless there is authority to do so’. In our hypothetical there is a limitation on the paramedics field of operations. In that scenario, arguably, there could be no duty to transport the patient to hospital as the prohibition removes any other authority they may have had. In simple terms a private company or citizen does not need authority to drive someone, particularly someone who consents to hospital but where there is a prohibition that general authority to do as one pleases is removed.
There is another difference. Mr Veenstra did not look for police assistance, nor was he asking police to assist him. In our hypothetical scenario registered health professionals are providing care to a person who is both in need of care and is looking to the paramedics to provide professional care, albeit within the limits permitted by law. That close relationship must give rise to a duty of care even if it is yet unclear what that duty requires.
If we accept that there is a duty of care then the response to that duty requires consideration of multiple issues. In Wyong Shire v Shirt  HCA 12, Mason J of the High Court said (at ):
In deciding whether there has been a breach of the duty of care the tribunal of fact must first ask itself whether a reasonable man in the defendant’s position would have foreseen that his conduct involved a risk of injury to the plaintiff or to a class of persons including the plaintiff. If the answer be in the affirmative, it is then for the tribunal of fact to determine what a reasonable man would do by way of response to the risk. The perception of the reasonable man’s response calls for a consideration of the magnitude of the risk and the degree of the probability of its occurrence, along with the expense, difficulty and inconvenience of taking alleviating action and any other conflicting responsibilities which the defendant may have. It is only when these matters are balanced out that the tribunal of fact can confidently assert what is the standard of response to be ascribed to the reasonable man placed in the defendant’s position.
That formula has been largely restated in legislation. In Queensland, the Civil Liability Act 2003 (Qld) s 9 says:
(1) A person does not breach a duty to take precautions against a risk of harm unless—
(a) the risk was foreseeable (that is, it is a risk of which the person knew or ought reasonably to have known); and
(b) the risk was not insignificant; and
(c) in the circumstances, a reasonable person in the position of the person would have taken the precautions.
(2) In deciding whether a reasonable person would have taken precautions against a risk of harm, the court is to consider the following (among other relevant things)—
(a) the probability that the harm would occur if care were not taken;
(b) the likely seriousness of the harm;
(c) the burden of taking precautions to avoid the risk of harm;
(d) the social utility of the activity that creates the risk of harm.
In our case we can assume that the risk of adverse consequences for a patient with an acute myocardial infarction no receiving timely in-hospital care is foreseeable and not-insignificant (ie s 1(a) and (b) are established). Would the reasonable paramedic transport the person to hospital or wait for QAS? That requires consideration of (2)(a) to (d). One might infer that there is (or was) a high probability that the adverse outcome would occur and that it would be serious. There is little burden if, as I’ve assumed, the paramedics have a vehicle and the skills, and the mine can continue to operate in their absence. They are not creating the risk of the heart attack but there is little social utility in staying on site (there might be if their departure meant the mine had to close) and little social disutility in transporting the patient. What the Civil Liability Act doesn’t mention, and Mason J did was the issue of the ‘any other conflicting responsibilities which the defendant may have’. One of those responsibilities is a responsibility to honour the limitation in their licence or approval. Another way to put that is that a court would be reluctant to impose a duty to act if that led to incoherence in the law, ie putting two laws into conflict.
At the end of the day a lawyer can hide behind the generic legal answer – the obligation upon the paramedic is to act as the reasonable paramedic in all the circumstances. That is the answer but it is impossible to answer in the abstract.
My opinion on this interesting and tricky question is that necessity is a defence – if you like an act of forgiveness – it cannot give rise to a duty to act contrary to law. If there really is an in-force prohibition on, in this scenario, transport off-site then there can’t be a legal (as opposed to a moral) duty to act contrary to that prohibition. What a court would, no doubt, consider is exactly how is the prohibition phrased and why is it there and they may well look to find a way to say that it did not apply in the circumstances in which case a duty could be established that would not set the law up in internal conflict.
I could certainly make an argument that just as anyone can drive someone to hospital if that is required so could any paramedic and any purported prohibition is directed to not operating a fee for service private ambulance company rather than treating the very people who the paramedic is engaged to treat, or any other person in need, and whilst the ‘normal’ practice may be to wait for QAS but it was not intended to do that where that put’s the patient’s life at risk. How that argument would stand up would depend to a large extent on how the prohibition was worded, and here again I note my agreement with my correspondent that I don’t think the Ambulance Service Act 1991 (Qld) s 43 is such a prohibition.
However the question I was asked was ‘if it is possible that someone is found civilly negligent for failing to apply the doctrine of necessity?’. To answer the question directly I think the answer to that question is ‘no’; one cannot be duty bound to break the law, even if one can be forgiven for doing so.