I was asked a question

… relating to the ongoing COVID pandemic:

There have been reports that the UK are looking to call up recently retired doctors to return to medical practice to assist with the COVID response. There are also some reports that Departments of Health in Australia are contacting medical schools to discuss using students to expand the medical workforce beyond the usual student role. Can you discuss the implications of these sorts of responses in the context of professional registration and the National Law in Australia?

When I asked for more details of what my correspondent had in mind, I was told:

implications of the National Law for surge workforce responses and people in those responses. Does the national law allow retired doctors to return to service in an expeditious way? If students are going to be used in the workforce above the usual degree how does that cause any issues if they are or seen to be acting as doctors?

By ‘acting as’ I mean not that these students would claim to be doctors, but that usually a student doctor would ask a patient if they can be involved in that patient’s care, and patients can say ‘no’ and see a doctor instead. In the situation where students are made a temporary part of the workforce there may be less of a choice for patients to not engage with students. I hope I’ve made a sensible distinction.

If you think it’s interesting, I’d also be interested to hear your thoughts on what this would mean in terms of liability for anybody participating in a surge workforce – I assume that the state would take on the liability vicariously as part of the act of engaging with retired and/or student doctors to do such work?

Personally, I cannot see any significant issue. The Health Practitioner Regulation National law means people who are not registered cannot use the title ‘Medical Practitioner’; it’s not about ‘scope of practice’.  Asking medical students or retired practitioners to expand the workforce is not contrary to the law provided they are not described as ‘medical practitioners’.

To identify other issues, we would need much more detail about what these people are going to do.  They can be used to expand the workforce but that doesn’t mean working as independent practitioners. It can just mean having people in the area who know how to work in the sector so can be readily incorporated into the workforce and trusted to do whatever they are competent to do (and that will be different depending on how long ago they retired, where they are up to in their studies etc etc).  A hospital/health service may want to expand its workforce by calling on retired doctors and/or medical students, or retired nurses and/or nursing students, or volunteers (eg St John Ambulance volunteers) or volunteers off the street and training them. All of that does require risk assessment, in effect benefit v risk both to the patient and the person incorporated into the workforce, but it doesn’t raise issues under the Health Practitioner Regulation National Law provided they are not using protected titles, ie those who are doctors and nurses are distinguished from those who are not.

It may be that ‘usually a student doctor would ask a patient if they can be involved in that patient’s care, and patients can say ‘no’’ but these are not usual times or measures.  When you go to hospital you don’t get to nominate who will be your carers, you don’t get to say I want an RN not an EN etc.  You go to hospital for care, the hospital decides how that care is given.

As for liability, the hospital is responsible to ensure that you receive ‘reasonable care’ and any failure is a failure by the hospital, so the hospital is liable for everyone incorporated into the workforce, from doctor (Albrighton v RPA [1980] 2 NSWLR 542; Ellis v Wallsend District Hospital (1989 17 NSWLR 553) to volunteer in the canteen (Hollis v Vabu Pty Ltd [2001] HCA 44).