Todays’ question comes from a paramedic employed by a jurisdictional ambulance service, but which one is not identified. I’m told that
… one of the statutory ambulance services released the following statement regarding the management of cardiac arrests during the COVID19 pandemic. It reads as follows: ”
In suspected cardiac arrest patients, it may not be practical for first responding paramedics attending an arrest to don full PPE prior to approaching the patient, since this might significantly delay the initial rhythm assessment, first shock and commencement of chest compressions. If a family member is present, a rapid assessment of COVID-19 status might be possible and if confirmed positive, full PPE must be donned. If COVID-19 is uncertain, then the initial rhythm check and shock may be performed by a paramedic with goggles, face mask and gloves whilst each subsequent member of the attending team don full PPE.
Understandably I think this statement has caused some concern amongst paramedics working for this service. The part of particular concern is where it is suggested that in cases where the patient’s COVID19 status is uncertain (so where it cannot be established clearly as to whether or not the patient meets the suspected case definition), it is considered appropriate for one paramedic to enter and conduct patient management whilst wearing substandard PPE whilst other paramedics don appropriate PPE.
My question is whether or not the statutory Ambulance Service has breached Work Health and Safety Legislation by instructing employees to enter a potentially unsafe situation without appropriate PPE?
And secondly, if this does breach the Workplace Health and Safety legislation, is it no longer a “lawful direction” and can paramedics therefore refuse to enter the scene until they are wearing appropriate PPE.
The short answer is that provided there are reasons behind the decision, ie the policy wasn’t written by the accountant working at home one night, then it won’t be a breach of the work/occupational health and safety legislation. In exploring the answer I’m going to assume that the ambulance service is from a jurisdiction that has adopted the model Work Health and Safety Act 2011 (so every jurisdiction other than Victoria and Western Australia) and I will refer to the model Act as published by Safe Work Australia rather than as enacted in any particular state or territory.
The obligation under the Work Health and Safety Act is not (a duty to ensure the health and safety of workers; it is a duty (s 19) ‘ensure, so far as is reasonably practicable, the health and safety of: (a) workers…’. The addition of the words ‘so far as is reasonably practicable’ is vitally important. Section 18 says what is ‘reasonably practicable’
In this Act, reasonably practicable, in relation to a duty to ensure health and safety, means that which is, or was at a particular time, reasonably able to be done in relation to ensuring health and safety, taking into account and weighing up all relevant matters including:
(a) the likelihood of the hazard or the risk concerned occurring; and
(b) the degree of harm that might result from the hazard or the risk; and
(c) what the person concerned knows, or ought reasonably to know, about:
(i) the hazard or the risk; and
(ii) ways of eliminating or minimising the risk; and
(d) the availability and suitability of ways to eliminate or minimise the risk; and
(e) after assessing the extent of the risk and the available ways of eliminating or minimising the risk, the cost associated with available ways of eliminating or minimising the risk, including whether the cost is grossly disproportionate to the risk.
That is not a duty to reduce risk to zero and risk cannot be reduced to zero; rather what is required is steps to minimise the risk to an acceptable level, but what is acceptable will differ between people and where you stand.
Firefighters are exposed to risk. To manage that risk they are issued with PPE and equipment to allow them do their job and given training to reduce risk. But there is still a risk. Some people will say ‘the risk is too high, I’m not prepared to be a firefighter’ and they chose to do something else. For others, given the benefits of being a firefighter whether they are judging the benefits to their community or to themselves, the risk is acceptable, and they go to work or volunteer. The use of PPE does not make firefighting safe, it makes it safer. Sending firefighters to fight fires, even with PPE, is to instruct employees or volunteers ‘to enter a potentially unsafe situation’ but it’s not a breach of the WHS Act because when you consider the risk (as reduced by training, PPE, equipment) and the benefit of fighting a fire it’s worth ‘running the risk’.
Paramedics also work in a risky environment. It is indeed, in my view, one of the factors that distinguishes paramedicine from the other health professions. Paramedics work in uncontrolled environments, they take health care to where people are, in their homes, workplaces, the street, remote areas etc. Some nurses and some doctors do that too, but that is not an essential part of what it is to be a doctor or nurse. Equally some paramedics do (and will increasingly) work in controlled environments (doctor’s surgeries, hospitals, health clinics etc) but that doesn’t, in my view, change the fact that what sets paramedics apart from other professions is that they work where they do not control the environment in which they work.
Every time paramedics step into the ambulance they are entering ‘a potentially unsafe situation’. The biggest risk is probably driving the ambulance from the station to the patient. This could be made safer by taking the lights and sirens off the vehicle and requiring that ambulance are not driven in excess of 50km/h. That is a way to make the work environment safer but it comes at a cost in terms of the risk to the patients that the ambulance service is there to serve. That is it means the paramedics cannot effectively do their job.
In a cardiac arrest my understanding that time is of the essence. So taking time to don full PPE increases the risk that the patient won’t survive or, if they do survive, they will have a permanent impairment. The risk to the patient is something the ambulance service has to consider along with the risk to the staff. Paramedics also have to consider the risk to patients as well as the risk to themselves and different people will come to different conclusions on what is ‘reasonable’. Some people may try and talk a potentially violent jerk into leaving to allow them to treat a patient; others will wait for the police. Both options may be ‘reasonable’.
If a person has been tested and the test has returned positive and you are given copies of that test result, then you can know that person’s COVID status. You cannot ‘know’ anyone else’s. Even if you are told they had a negative test yesterday it does not mean they are not positive today; and most people will never have been tested. Managing the risk of blood borne disease means everyone uses protection every time for every patient – gloves, eye protection etc. It would be ‘reasonable’ to require paramedics to put on full COVID PPE for every patient they treat – treat everyone as if they COVID and you are best protected if they are and are not discriminating on unlawful grounds (see The coronavirus question (March 12, 2020). But to say it’s ‘reasonable’ is to say there are ‘reasons’ behind that decision; not that it is the only ‘reasonable’ decision.
It may be also be ‘reasonable’, taking into account the probability that someone will have COVID and the need to start resuscitation as soon as possible and the evidence of transmission, to give the direction quoted. Like the question of excluding a paramedic with a temperature in excess of 37.2 (see Refusing a paramedic access due to Covid-19 fears (March 28, 2020)) it’s a clinical question.
My correspondent put the question as, ‘has ‘the statutory Ambulance Service … breached Work Health and Safety Legislation by instructing employees to enter a potentially unsafe situation without appropriate PPE?’ That question can only be answered if one can answer the question ‘are goggles, face mask and gloves appropriate PPE for performing initial rhythm check and shock when considering all the matters listed in s 18 of the Work Health and Safety Act?’ I cannot answer that question, that question needs to be answered by health clinicians.
What I would say, however, is that if the answer to the question ‘are goggles, face mask and gloves appropriate PPE for performing initial rhythm check and shock when considering all the matters listed in s 18 of the Work Health and Safety Act?’ is yes; then why isn’t that true even they are COVID-19 positive? And if it does make a difference, don full PPE for every patient. But again, at least in the first instance, these are clinical or factual, not legal questions. The law applies to the facts and what we don’t have in this question are ‘the facts’ ie what is the reasoning behind the directive; are goggles, face mask and gloves appropriate PPE?
Conclusion
What we can say is that if the policy maker had regard to the factors listed in s 18 and genuinely and with regard to the state of the evidence and knowledge, considered those matters then no, this is not a breach of the duty upon an employer under s 19. But remember there are also duties to consult workers on WHS measures and that also needs to be considered, and if paramedics do not think this response is reasonable, that should be escalated through the WHS consultation process and/or one’s trade union. I would certainly be asking the question ‘if goggles, face mask and gloves are not good enough when we know a person is COVID-19 positive; why are they good enough when we don’t?’
Australian Emergency Law 
You have neglected some interpretive issues in your advice and it is wrong. Your advice suggests that the test of reasonable practicability is a subjective test – it is not (Read Tooma’s book for references). The test of reasonable practicality under s 18 is an objective one.
Secondly, a duty to ensure under s 19 SFAIRP when considered with s 17, S 18 s 3(2) of the 2011 Act would likely render the Ambulance Service in breach for directing the exposure to risk in such circumstances. Further, the directive would likely be void under s 272 of the WHS Act. You are also unfamiliar with the precedents that state that a high-risk work environment requires increased rigor of controls, not lesser standards as you appear to imply in your response. (See Tooma for references). In your Covid response, you have also failed to appreciate that risk is a reference to potential and not actual danger (See Tooma Re principle from Science Museum Case). There are a number of flaws in this advice. Readers should seek independent advice from a lawyer who specializes in WHS Law.
A reasonable test is indeed ‘objective’ but this is not the common law ‘reasonable man’ and what is reasonable has to consider the matters listed in s 18.
Work Health and Safety laws are enforced by criminal penalties which means the Crown has to prove its case beyond reasonable doubt. The Crown have to prove what the accused did that was a breach of duty (Kirk v Industrial Relations Commission; [2010] HCA 1). Whatever the duty there may be a number of responses that meet the test of a reasonable response, ie just because a defendant could have done more, or different, does not prove that what they did do was not also a ‘reasonable’ response.
The aim of this blog is to educate emergency workers on the law that applies to them. Critically that is thinking about the process that lawyers go through trying to answer questions such as ‘is this conduct a breach?’ It is intended to show that there is rarely an axiomatic ‘yes’ or ‘no’ particularly when the response has to be ‘reasonable’. Context is everything. If it was possible to conclude that the direction described ‘would likely render the Ambulance Service in breach for directing the exposure to risk in such circumstances’ with as much information as we have been given then there would never be a need for.a trial or evidence.
In any event I don’t see that I’ve drawn the conclusions you suggest I’ve drawn eg that I imply some lesser standard or control is required. What I said is that the risk has to be controlled so far as is reasonably practicable, not reduced to zero. And that the ‘question can only be answered if one can answer the question ‘are goggles, face mask and gloves appropriate PPE for performing initial rhythm check and shock when considering all the matters listed in s 18 of the Work Health and Safety Act?’ My conclusion was ‘ I don’t think we have enough of the science – the facts – to conclude whether the directive is a breach of the WHS Act; the best we can do is put the arguments – the factors that have to be considered.’
I agree 100% that ‘ Readers should seek independent advice from a lawyer who specializes in WHS Law’. This is a blog, not legal advice, no-one should act on the basis of what is written on this or any other post.