Today’s correspondent is a paramedic who
… received a Signal 1 job (that’s the Victorian code for lights, sirens, urgent response) to one of the major nursing homes for a reported stroke patient.
On arrival at the facility, the receptionist was unaware of why we were there (pretty common, not a problem). She then asked us to read and sign a full A4 page document with questions relating to COVID-19 inclusion criteria; have we travelled overseas recently, have we interacted with other people who have been overseas recently etc.
She then insisted we submit to a tympanic temperature test.
My partner returned a reading of 37.3 and was refused entry to the facility.
I advised the receptionist that the normal temperature range is anywhere between 36.5 and 37.5 degrees Celsius.
She replied that her instructions were that nobody with a temperature over 37.2 would be permitted entry and the recently contracted security guard next to her desk would see those instructions were carried out.
We were both stunned.
A paramedic employed by a jurisdictional ambulance service is being refused access to a patient that on-site nurses had deemed to require urgent care and transport.
My question to you is; is that legal?
The question ‘is that legal’ raises so many issues because there are so many relationships at play. The operator of the facility has a duty to try to minimise the risk of COVID-19 to residents and staff, they also have a duty to ensure that residents get the medical care they need. Victoria ambulance also owes various duties to everyone involved. The receptionist and the security guard have obligations to obey the directions of their employer and you cannot expect them to know whether 37.5o is or is not safe if they’ve been told no-one above 37.2 o is to come in. And you may think that’s an unreasonable and arbitrary line but all lines are arbitrary and we don’t know who came up with the 37.2 line or on what basis, but if it is a nursing home one might at least expect that medical advice was considered.
With all those variables the only question I’m going to answer is ‘is it legal to exclude a paramedic employed by Victoria ambulance’?
The Ambulance Services Act 1986 (Vic) does not give any statutory authority to allow Victoria Ambulance to insist on, or force entry (compare that to the Ambulance Services Act 1991 (Qld) s 38 ‘Powers of authorised officers’). There is therefore no offence in refusing paramedics entry. (There may be relevant offences and obligations under nursing home licensing legislation regarding the proprietor’s obligations to residents but that is about the proprietor’s duties to the patients and that is beyond the scope of this blog).
The common law of necessity would suggest that paramedics can force entry – see Paramedics forcing entry to premises (March 25, 2014). The response has to be proportionate however and here they were not refusing entry to Ambulance Victoria or to everyone, just to one person. The other paramedic, my correspondent could go in and assess the patient and other paramedics may have been allowed in. Using force to push past the receptionist and security guard would not only inflame the situation and risk injury, it may also have been unreasonable in the circumstances.
The Ambulance Services Act 1986 (Vic) s 39B says:
At the request of an operational staff member providing care or treatment to a patient or attempting to provide care or treatment to a patient, a police officer is authorised to remove any person who interferes or may interfere, by his or her presence or otherwise, with the provision of care or treatment.
Police could have been called and they could have ‘removed’ the receptionist and security guard but whether they would have done so is another question.
Imagine a paramedic turned up, untidy, obviously dirty uniform, unclean hands dirt with obvious dirt under the fingernails etc and strong body odour suggesting that they hadn’t had a shower for some time. I don’t think anyone would think it would be unreasonable for a health facility to say ‘you’re not coming in here’. In COVID-19 times the health risk is not so obvious but if there are indicia (in this case a temperature over 37.2o ) why would the right to refuse be any different?
Things are legal unless there is a law that says they are not. The Ambulance Services Act 1986 (Vic) does not say that an occupier has to allow access to the paramedics, and in this case they were not refusing access to Ambulance Victoria just one paramedic. And if one were to consider their duty to their residents one cannot say that refusing access to this one paramedic was unreasonable where the institution had determined an indicium for access. Whilst that decision may have created an increased risk to one patient (ie they would be assessed by one, rather than two paramedics) it also reduced another risk to all the residents (the risk of introducing COVID-19). It would no doubt be subject to a lot of expert evidence before anyone could determine whether the decision was or was not a reasonable response to the competing risks.
Given that they were not refusing access to Ambulance Victoria, and they were not refusing access for no reason I cannot see that the action was prohibited or unlawful. It was not a breach of any provision of the Ambulance Services Act 1986 (Vic). The issue is not however ‘was the action legal?’ but ‘was the indicia reasonable?’ and that’s a question for clinicians.
Hi Emergency Law,
Pulling apart this example I just had some questions.
Is it legal (reasonable) for me to refuse to sign documents or submit myself to a temperature check? (One of my concerns is how often the nursing home equipment or pens are cleaned or if they are even accurate)
Would a reasonable alternative be (If I did not meet the criteria for entry or refused to sign documents or submit myself to a temp check) to contact my comms centre, explain the situation and ask them to bring the patient out to the ambulance if I was refused entry?
Yes that could be reasonable (if you had reasons not just a desire be difficult) and they could say ‘we’re not letting you in’. But why would they bring the patient to you if they think you may pose a risk to that patient and everyone else. The best thing may be to imagine you are in the facilities position and ask ‘what would you do if you thought this paramedic (not all paramedics) carried a risk?’
Hi Mr Eburn,
Thank you for your response.
Some of these places that ask us to sign forms asking for extremely personal details that I don’t feel comfortable giving.
I would hope most emergency services colleagues would not do something just to be difficult.
Unfortunately, the Statutory Ambulance can’t pick and choose who it sends to any case and there is every chance there would be a number of paramedics would be between 36.5 and 37.5 with the patient still requiring transport to the hospital.
The unfortunate thing is that every healthcare worker now carries the risk and we can only minimise it.
One strategy on the nursing home side is to minimise access to those who can be a risk, and so the community risk of the transmission in the facility is reduced.
If you isolate this risk management strategy, then the risk to the individual patient remains the same regardless of paramedic access to the facility or not.
However the patient still needs to go to the hospital and the only alternative that I can think up right now is that if the nursing home refuses access (like in the case of a temp 37.3), then the nursing home should bring the patient out. I don’t think they would get another ambulance if they called Triple Zero and asked for it.
Thanks for your reply and I just want to say I enjoy your blog a lot.
I think the discussion is getting too bogged down in the detail. The relevant question is ‘would you, if you were running a nursing home, want to let in a health care professional who had obvious symptoms of covid-19 infection?’ If you answer ‘no’ then the only issue is whether a temperature over 37.2 is an obvious sign. That is a clinical question, not a legal question.
The question I was asked was ‘did they break the law’ and the answer was ‘no’. If there are better ways to manage the risk they are also clinical questions. Ambulance Victoria’s doctor’s should be speaking to facility doctors to work that out. Again that is out of scope for this blog.
Hi With Student paramedics now being used can you see the Board removing the supervised practice from the conditions of Paramedic Registration.
Sent from my Samsung Galaxy smartphone.
I cannot comment on what the Board might do.
Does the receptionist not commit an offence under section 51 of the Summary Offences Act 1966? “A person must not assault, resist, obstruct, hinder or delay an emergency worker on duty, a custodial officer on duty or a youth justice custodial worker on duty.”
The paramedics are there for a stroke patient who, without medical attention, could die.
Could refusing them entry constitute reckless conduct endangering life?
Again I think the point is getting lost in the detail. It’s not the receptionist or the security guard that’s the issue it’s the facility. But sure the receptionist is hindering and delaying one of the paramedics – but she’s applying a policy and the policy at its broadest has to be right. A facility has to have the right to refuse a person entry who is showing symptoms of infection. They have a duty to protect all their residents. And with respect it cannot be part of the duty of a paramedic to be at work and treating people if he or she has symptoms of infection. If you accept that then the relevant question is ‘is a temperature in excess of 37.2 a symptom of infection?’ and as I’ve said that’s a clinical not a legal question, and so it’s not a question I can answer nor is it a question the receptionist can be expected to deal with.
Because of the receptionist’s position I cannot see how she would be guilty of the offence. Ask yourself this, do you think an Ambulance Victoria supervisor or police officer would be guilty of an offence under s 51 if they stopped a paramedic who they had reason to believe was suffering from COVID-19 from treating a patient? If your answer to that is ‘no’ then the receptionist and the security guard are in that position. You may not accept their reason (a temp of 37.2+) is good enough but they did not make that up; that is what they have been told by the managers of a nursing home – they have every reason to accept that that is good evidence. And the nursing home has a duty to protect its staff. You may have problems with the policy (ie the criteria is meaningless, and there are better ways to manage the risk) but on those points the issue is with the facility, not the staff.
And it’s true that the paramedics were ‘there for a stroke patient who, without medical attention, could die’ but the facility wasn’t refusing access to all paramedics, just one of them. And no, it’s not ‘reckless’ assuming that the temperature selected was not picked at random. If there was medical advice behind the decision and given the public health warnings, setting limits on who can and cannot come in is anything but reckless. Having entry criteria but saying ‘but it doesn’t apply to paramedics or health workers’ would be reckless as health workers may be more exposed to the virus than others and they need to keep the virus out of the facility. If you have a rule that says ‘you cannot come in if you meet these criteria’ then it would be reckless not to apply that to everyone. The question should be ‘is there good science or reason behind the criteria?’ Again not a question that is in scope for this blog.
I am grateful that this topic was raised as I encountered the same issue on my very next shift as a NSW Ambo. I understand the desire to screen everyone who enters a facility full of vulnerable people, however the approach does not appear to have been thought through properly.
Last night, my partner and I had our temps taken by nursing home staff and filled in a form that came with a pre-written stat. dec. stating we had not travelled or had contact with any COVID-suspected persons and would wear masks, and only “visit” a particular resident and sit in certain areas etc. Clearly, this was designed for visiting relatives, even though it has to be signed by all contractors, services and others.
The declaration did not differentiate between close contact, casual contact or medical contact wearing PPE. It only referred to “contact”.
The legal issue I see is that there is no JP on site at that time of night to witness a declaration.
The practical issue is that, as the virus spreads, nearly every paramedic in the State will have had some form of “contact” with known, suspected or possible COVID-19 cases.
It seems to me that such entry requirements, particularly the declarations, will have to be redesigned or these nursing homes will indeed be refusing entry to the entire ambulance service.
You make two good points. You are correct that a statutory declaration that is not ‘declared’ before an authorised witness is just a piece of paper – see https://emergencylaw.wordpress.com/2019/03/19/can-members-of-victorias-emergency-service-administer-oaths-and-declarations/.
Also I agree that agencies and facilities actually need to think about risks and who their procedures are aimed at. Getting a form and saying everyone has to fill it in is literally putting form over substance. A health facility should ask ‘what do we do to screen local GPs that come to see their patient – and we apply that to all visiting health professionals including paramedics’. Getting some form and believing that is sufficient is both a ‘cover your arse’ rather than protect patient’s attitude, and is not ‘reasonable’ ie not based on reason. The person one has to feel sorry for is the gate keeper receptionist or security officer who is asked to implement a one size fits all policy and has no training or discretion to think ‘but this can’t apply in this context’.
I received this comment by email:
“Hi, I saw a post of yours the other day by a crew who had been turned away from a nursing home as one of the paramedics had a temperature higher than the nursing home allowed. I’ve seen similar processes in place in NSW and have been asked to sign a document when entering a nursing home stating, among other things, that I’ve not been in contact with anyone who has confirmed covid19. I’ve now seen there is a public health order which states anyone who has had any contact with covid 19 is not allowed to enter a nursing home. I can’t see anywhere in the order sating an exemption for emergency services or if the contact you had was while wearing appropriate ppe. Just wondering if your take on this is that a paramedic would be allowed entry if their covid19 contact was while wearing appropriate ppe or if there is something I’m missing.
I think this link should take you to the order https://www.vision6.com.au/ch/75695/8vr29/2170322/wL43T4mWJ3KtSiYh3OVEOELe8WZx68n8I8A1xeLu.pdf“
In my post I was considering the rights of an operator to restrict entry based on their position as occupier of the premises (which gives a right to exclude people) and as operator of a facility (that has to give rise to a right to take steps to protect residents). This Order confirms that there has to be a right to exclude but more than that, it compels operators to exclude people that meet the criteria listed. It should certainly stop arguments with the reception/security staff and it does mean that operators don’t have to make their own decisions. They must comply with the order.
And it is correct that the order says that it applies to anyone who ‘during the 14 days immediately before the proposed entry, the person had known contact with a person who has a confirmed case of COVID-19’. There is no distinction between the type of contact or the circumstances of that contact. NSW Ambulance is either going to have to get an exemption or if they become aware that a paramedic has treated someone with COVID 19, even if they wore full PPE, that they are not being sent to nursing homes.
For another legal opinion on this order see see https://www.maddocks.com.au/blog/state-government-restrictions-on-aged-care-facilities/ and note their concluding comment “We are also seeing that some providers, based on their own particular circumstances and risk assessments, are imposing tighter controls than those required by the orders and directions.” Facilities MUST comply with this order but it does not mean they cannot have stricter requirements eg a temperature in excess of 37.2.
Just out of curiosity, do we know how this case was resolved and what the solution was?
If access is refused to one paramedic and hypothetically, the other goes in by themselves to assess the patient, you are then relying on nursing staff to get your patient onto a stretcher, use your equipment etc. then, once exiting the facility, the other paramedic that was refused entry is going to be with the patient anyway. I don’t see how this policy is at all useful. If you call for an ambulance, you get one, you don’t get to pick or chose which ambulance staff you want or not. If you want this, set up your own private transport with hand picked employees. Resources are finite and ambulance services are screening their employees at the start of their shift for temperatures and specifically stating “Don’t come to work if you feel unwell at all.” They also have procedures in place to ensure employees aren’t attending work if any symptoms or criteria is met. The evidence suggests people can also be asymptomatic for a number of days and be carrying SARS2 (covid-19). Therefore, the ominous temperature testing seems arbitrary. See https://www.ncbi.nlm.nih.gov/books/NBK554776/
I struggle to comprehend the logic behind the above scenario, that is; a facility calling for an ambulance to then refuse one of the paramedics entry. Why should another ambulance be sent to come and provide an additional employee when there is no need? What if that other ambulance attends and they both have temperatures of 37.2 because they have both just physically exerted themselves? What will the facility do? There is no way another resource can be sent morally.
Sorry for the continued discussion, but I’m not sure where else to discuss it.
I don’t know how this matter was resolved but it’s largely been overtaken by the Public Health (COVID-19 Residential Aged Care Facilities) Order 2020 which now compels facilities to exclude anyone, including a paramedic, who meet the listed criteria (see https://gazette.legislation.nsw.gov.au/so/download.w3p?id=Gazette_2020_2020-55.pdf). Ambulance services are going to have to deal with that. But to make the point again, the particualr policy that was the subject of this post may indeed have been unhelpful but that cannot deny the point that facilities have to balance various risks including risks to one patient of excluding a person with symptoms; and the risk to everyone. I don’t see that is controversial and what’s more it is now mandatory; what was controversial was whether a temperature of 37.2 was a symptom.