Today’s question is a follow up to the post COVID-19 and paramedic work health and safety (April 1, 2020). I’m asked for my:
… thoughts on the impact to a paramedic’s registration when they elect to not follow their employer’s PPE directive. The first paramedic into a cardiac arrest have been directed by Ambulance Victoria to use a lesser level of PPE than their partners (getting into the higher level after arrival at scene). Would delaying entry into the scene to put on the higher level of PPE (CPR is considered an aerosol generating procedure in the context of COVID19) leave the paramedic vulnerable to disciplinary action / sanction?
In that original post I was not told the jurisdiction involved but I assume that this question relates to the same direction and in both cases we were, and are, talking about Victoria.
That question can be answered at many levels. First would it leave the paramedic ‘vulnerable’? Yes I guess it would. One can imagine a situation where CPR is delayed by the paramedic taking time to ‘don full PPE’. The patient dies. The family of the patient become aware of the directive that ‘the initial rhythm check and shock may be performed by a paramedic with goggles, face mask and gloves’ but are also aware that this was not done. They may feel sufficiently aggrieved to lodge a complaint about the paramedic’s conduct so in that sense the paramedic is ‘vulnerable’. But I don’t think that is really what the question intends to ask; the question is would, or is it likely that, or do I think that, the complaint would be upheld. That is a more complex question.
One of the benefits of paramedic registration – of recognising paramedicine as a profession – is that it moves the capacity to define what is appropriate professional conduct from the employer, to the profession. Prior to registration a failure to comply with the employer’s direction might lead to the employer taking disciplinary action and ultimately an employee’s termination. If you were a paramedic by virtue of your employment with Ambulance Victoria, then losing that employment also lost that status. That is no longer the case. Even if the employer wants to take internal action, one’s status as a paramedic is determined by the profession.
A complaint can be made that a paramedic is guilty of (in increasing seriousness) ‘unsatisfactory professional performance’, ‘unprofessional conduct’ or ‘professional misconduct’. All those terms are defined in cl 5 of the Health Practitioner Regulation National Law. (The National Law is set out as a Schedule to the Health Practitioner Regulation National Law Act 2009 (Qld) and adopted as part of the law in Victoria by the Health Practitioner Regulation National Law (Victoria) Act 2009 (Vic)). The definitions are:
“unsatisfactory professional performance”, of a registered health practitioner, means the knowledge, skill or judgment possessed, or care exercised by, the practitioner in the practice of the health profession in which the practitioner is registered is below the standard reasonably expected of a health practitioner of an equivalent level of training or experience.
“unprofessional conduct”, of a registered health practitioner, means professional 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…
“professional misconduct”, of a registered health practitioner, includes—
(a) unprofessional conduct by the practitioner that amounts to conduct that is substantially below the standard reasonably expected of a registered health practitioner of an equivalent level of training or experience; and
(b) more than one instance of unprofessional conduct that, when considered together, amounts to conduct that is substantially below the standard reasonably expected of a registered health practitioner of an equivalent level of training or experience; and
(c) conduct of the practitioner, whether occurring in connection with the practice of the health practitioner’s profession or not, that is inconsistent with the practitioner being a fit and proper person to hold registration in the profession.
Note that the definitions refer to conduct that is ‘below the standard reasonably expected of a health practitioner of an equivalent level of training or experience’ or ‘of a lesser standard than that which might reasonably be expected of the health practitioner by the public or the practitioner’s professional peers’. It is not the employer that determines whether the allegation has been made out.
With respect to allegations of ‘unsatisfactory professional performance’ or ‘unprofessional conduct’ it is a Performance and Professional Standards Panel (established under s 182) that must decide whether a paramedic’s conduct in all the circumstances meets the relevant test (s 191). A panel must have at least 3 members of which at least 2 of whom are registered paramedics (s 182(2) and (4)). A panel can impose conditions on a paramedic’s registration but cannot cancel the paramedic’s registration. To use old language, it cannot ‘strike off’ the paramedic.
A paramedic can only have his or her registration cancelled if a complaint of ‘professional misconduct’ is established. Allegations of professional misconduct are heard by a ‘responsible Tribunal’ (s 193) which, in Victoria, is the Victorian Civil and Administrative Tribunal (VCAT) (Health Practitioner Regulation National Law (Victoria) Act 2009 (Vic) s 6).
Would a refusal to commence CPR until a paramedic has put on full PPE, despite the direction from the employer that ‘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’ constitute either ‘unsatisfactory professional performance’, ‘unprofessional conduct’ or ‘professional misconduct’?
If a complaint were to proceed it would be up to the complainant (most probably the Paramedicine Board) to establish to the panel or Tribunal’s satisfaction that the complaint has been established. The burden of proof is ‘on the balance of probabilities’ (not ‘beyond reasonable doubt’) subject to the High Court’s statements in Briginshaw v Briginshaw (1938) 60 CLR 336. In a paper Briginshaw In Land And Environment Court Proceedings – Introductory Observations from the Judicial Perspective, Justice Rachel Pepper explained the effect of Briginshaw. She said (at -):
The seminal statement or explanation derives from Dixon J in Briginshaw v Briginshaw, where his Honour stated that “when the law requires the proof of any fact, the tribunal must feel an actual persuasion of its occurrence or existence … It cannot be found as a result of a mere mechanical comparison of probabilities.” His Honour went on to explain that the standard is one of “reasonable satisfaction”:
…but reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequence of the fact or facts to be proved. The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer…. In such matters ‘reasonable satisfaction’ should not be produced by inexact proofs, indefinite testimony, or indirect inferences.
… The Briginshaw principle so-called is understood as requiring care in cases where serious allegations have been made or a finding is likely to produce grave consequences…
… [It] does import some flexibility to the civil standard by directing attention to the strength of the evidence required in attaining the civil standard of proof, focusing on the probative value of such evidence. Essentially, it goes to the degree of persuasion of the mind. Thus the High Court in Neat [Holdings Pty Ltd v Karajan Holdings Pty Ltd] stated that: “the strength of the evidence necessary to establish a fact or facts on the balance of probabilities may vary according to the nature of what it is sought to prove”. In short, the more serious the allegation, the more probative or stronger the evidence needs to be.
Clearly a finding of professional misconduct is a very serious finding with potentially grave consequences for the paramedic.
The prosecution case
In the circumstances described above, if I was counsel for the complainant one would point to the direction from Victoria Ambulance supported by scientific evidence and professional opinion that the risk of catching COVID-19 by doing ‘the initial rhythm check and shock … by a paramedic with goggles, face mask and gloves’ was sufficiently low that other paramedics of equivalent level of training or experience’ would perform that task and would be expected to do so by ‘the public or the practitioner’s professional peers’. That would of course require evidence from professional peers and educators.
I would also make the point (as I’ve made elsewhere on this blog) that risk is not and can never be zero. Paramedics (and firefighters and police) do things that carry risk all the time – it is in fact part of their job. The risks may be mitigated but are not reduced to zero. Risk may be described as a calculation of probability x likely consequences but even if that can be determined with mathematical precision, it does not determine whether the risk is worth ‘running’. We ask – we expect – our emergency services to take risks that we don’t ask of others. In the days of COVID-19 we are all asked to stay 1.5m from each other. Health practitioners cannot do that. In fires we ask everyone to evacuate but firefighters may enter the burning building. We ask emergency services to respond in a heavy motor vehicle with lights and sirens because the community accepts that the risk to them and to others is justified by the benefit of a usually faster response time.
To return to my submissions, if I was counsel for the complainant, I would want to bring evidence of
- How the decision to issue the directive was made. Who was advising Ambulance Victoria, what science were they relying on and how did they balance the risks to patients and the risk to paramedics;
- How long does it take to put on full PPE compared to ‘goggles, face mask and gloves’;
- What impact that delay is likely to have on survival rates for those needing CPR;
- What difference in protection is offered by ‘goggles, face mask and gloves’ compared to ‘full PPE’;
- What other risks paramedics are expected to take as part of their job and how the risk of COVID when wearing ‘goggles, face mask and gloves’ sits with those other risks (remember paramedics drive on urgent duty, crawl into damaged cars, get lowered out of helicopters into bush ravines, deal with people who are potentially violent due to the effect of drugs, alcohol or mental illness or just sheer bastardry, deal with people with other communicable diseases etc);
- I would draw on the ethics of the profession – paramedics are there to assist people in a medical emergency at their time of greatest need. Whilst the duty is not to sacrifice their lives, they do have to consider the well-being of the patient and are expected, by the public and peers, to take risks that others do not in order to do that.
- I would want to call senior paramedics and those who made the directive to lead evidence that the risk should be regarded as acceptable and that the community and other paramedics would expect this paramedic to act according to the direction.
The evidence would, I would hope, support a final submission that although there was a greater risk in doing ‘the initial rhythm check and shock … with goggles, face mask and gloves’ it is not out of proportion to other risks in paramedic practice and that a paramedic of ‘‘equivalent level of training or experience’ would, and the paramedics peers would expect him or her, not to delay those initial steps that are critical to the patient because of a misplaced fear or an unreasonable expectation as to how far risk can be reduced.
The respondent’s case
If I was counsel for a paramedic in this case one would refute the sort of material above. I would seek all the background papers to the policy to question who made the decision, how was it made and whether all the relevant factors (such as those listed in the Occupational Health and Safety Act 2004 (Vic) s 20(2)) had been considered. I would lead evidence from other experts to comment on the risk both the paramedics and patients. I would seek to find peer opinion from other paramedics the decision in the particular case given all the circumstances in that room (rather than looking at the policy in general) the decision by this paramedic to delay CPR was a decision that another paramedic of ‘equivalent level of training or experience’ would also have made in the same circumstances.
With respect to risk and what is an acceptable risk I would focus on the fact that the risk calculation is different if you are the one at risk. A general who commands troops into battle may recognise that there will be certain losses but that this is a price to pay for the greater objective. The soldiers on the front line may see the calculation very differently. The community may be willing to accept the risk posed by responding emergency vehicles, but the family of the person killed in a collision with an ambulance, fire appliance or police car may not see it the same way. Ambulance Victoria may recognise that the risk of doing CPR without full PPE is higher than doing it without but the risk to the patient of not delaying CPR is much higher. They are looking at the big picture, the paramedic is looking at his or her own risk and that from that perspective the decision to delay commencing CPR is reasonable and what other paramedics, and the public if they understood the issues, would expect.
I would certainly look to see if Ambulance Victoria had complied with the Occupational Health and Safety Act 2004 (Vic) on questions of whether they had consulted with employees and what alternative policies had they considered and rejected, and why.
The evidence would, I would hope, support a final submission that even if it were accepted that the policy in question was reasonable as a general statement, every case and every patient presentation is different and in this presentation the decision by this paramedic was one that other paramedics of ‘‘equivalent level of training or experience’ would also have made and that this performance, in this case, was what would be expected by peers who knew all the facts.
That is a very long answer but it’s long for a reason. It is to show, again, that law only operates on facts. It is rarely the case that can draw a legal conclusion by looking up a rule book, finding the rule and then knowing the answer. The question was would dealing ‘the initial rhythm check and shock’ whilst the paramedic dons full PPE leave the paramedic ‘vulnerable to disciplinary action / sanction?’
The first part of the answer is ‘what do your peers think?’ If there is a body of opinion that says the policy direction is unreasonable then the answer is more likely to be ‘no’. (And if there is such a body of opinion then, rather than wait, it should be raised both as an industrial issue and under the consultation processes set out in the Occupational Health and Safety Act 2004 (Vic)).
Whether such conduct does amount to either ‘unsatisfactory professional performance’, ‘unprofessional conduct’ or ‘professional misconduct’ is not determined by Ambulance Victoria or the Paramedicine Board, but by a Panel or the relevant Tribunal (VCAT). All I can do here is demonstrate the process and the sort of arguments that might be made. How the Panel or Tribunal would determine any matter would depend on all the facts.
I suppose one can say, with some certainty, that ‘delaying entry into the scene to put on the higher level of PPE …’ contrary to a direction not to do that but to perform ‘the initial rhythm check and shock …by a paramedic with goggles, face mask and gloves whilst each subsequent member of the attending team don full PPE’ could lead to a complaint and therefore ‘leave the paramedic vulnerable to disciplinary action / sanction’ (even if they ultimately win). On the other hand, entering the room and performing ‘the initial rhythm check and shock … with goggles, face mask and gloves whilst each subsequent member of the attending team don full PPE’ could not be subject to a complaint by the patient or AV. At that very simple level, one would have to answer the question ‘yes’ but again it’s all a question of risk.
There’s a risk the family may complain if they realise you did not act in accordance with the policy direction (and it’s just a risk, it’s not certain they’ll complain, it’s not certain the Paramedicine Board would entertain the complaint, it’s not certain what the result would be). There’s a risk that your employer will seek to impose internal disciplinary action. And there’s a risk you will contract COVID-19 (but the patient may not have it, goggles etc may be sufficient protection, you won’t be in contact with them for more than 15 minutes before your colleagues in full PPE take over). And finally, there’s the risk that the patient you have come to help will die and I would infer that no-one became a paramedic to let people die who they can save. How you balance those risks is a matter of your clinical and professional judgment. Make the call you’re comfortable with and are prepared to defend – to AV and the patient’s family (if you delay treatment) and to yourself, your colleagues and your family if you come home with COVID.
That’s the sort of reasoning that you do everyday even if not consciously. In response to a triple zero call you drive at 70km/h in a 60 zone but your response time would be faster at 90km/h. Some would argue (and have done so on this blog) that paramedics should have no exemptions because of the danger to others. The patient’s family and your employer may be concerned that your response time at that speed is 10 minutes, not 6 and want to complain that you did not ‘proceed with all speed’ (to quote, out of place, the Fire and Rescue Act 1989 (NSW) s 11)). The police may issue a ticket because you caught by a speed camera and they think that, in all the circumstances, you were not taking reasonable care and the exemption in rule 306 of the Road Safety Road Rules 2017 (Vic) should not apply. You make the call and you may have to defend that decision to any of those people and to yourself that you thought about the risk to other road users, the patient, you and your family and that was the call you were prepared to make.
And if you think the AV policy is unreasonable and unacceptable, exercise your rights under the Occupational Health and Safety Act 2004 (Vic) to get the policy statement changed.