Today’s question comes from a Queensland paramedic who is a very difficult situation. There is a
… house very near to my own private residence which the occupiers all suffer with a variety of mental health conditions and social issues. Despite my efforts, the occupants are now aware that I am a paramedic with the state ambulance service, and they will on occasions make approaches to me when I am at home for advice on health matters. Last weekend I was woken by the matriarch of the house requesting that I assess her grandson who had allegedly been given illicit drugs the night before.
The matriarch has previous form for making health ombudsman complaints against other health practitioners, and I am aware that she is currently shopping for a lawyer to take on a case of medical negligence for the doctors involved in a previous hospital admission for her husband. With this in mind, I transported the drug affected grandson to the local hospital with his grandmother for further assessment.
I am trying to balance any risk between being a good neighbour and my professional registration. Is there a risk to my registration from any advice that I give to these people?
This is indeed a very difficult situation. As a general rule there is no duty to go to the aid of a stranger (Stuart v Kirkland-Veenstra  HCA 15) so you would be in within your rights to tell them to call triple zero if they thought it was an emergency or otherwise make their own arrangements. But that is not helpful if they have a distorted view of the world and may make your life difficult.
Further one has to recall the case of Lowns v Woods (1996) AustTortsReps ¶81-376. In that case Dr Lowns was liable for failing to render assistance when requested even though he had no prior doctor/patient relationship with the patient. Critical in that case was that he was approached because the family knew he was a doctor (as with my correspondent). Critically, also, Dr Lowns was at work, he was at his surgery ready to see, but not yet seeing patients and there was no impediment to his attending. That would not be the same with my correspondent who is clearly not at work and in some cases may be unable to attend. Whether that is because he or she has already had one or two cleansing ales or is caring for children or has dinner on the stove or has just come off shift or any number of an infinite number of reasons.
Another key factor in Dr Lowns’ case was a provision in the then Medical Practice Act that provided it was unsatisfactory professional conduct to fail to render assistance in an emergency. There is no equivalent provision in the modern Health Practitioner Regulation National Law. On balance I would suggest that finding that there would be a legal duty to provide any assistance would be difficult – even unlikely – but that’s probably what Dr Lowns’ lawyers told him, too.
The Paramedicine Board’s Code of Conduct (Interim) (June 2018) says (at [2.5]):
Treating patients or clients in emergencies requires practitioners to consider a range of issues, in addition to the provision of best care. Good practice involves offering assistance in an emergency that takes account of the practitioner’s own safety, skills, the availability of other options and the impact on any other patients or clients under the practitioner’s care, and continuing to provide that assistance until services are no longer required.
There is an expectation that good paramedic practice includes rendering assistance in an emergency but that begs the question of whether the events being described are, objectively speaking, an ‘emergency’.
The Code of Conduct also says (at [8.2]):
Professional boundaries allow a practitioner and a patient/client to engage safely and effectively in a therapeutic relationship. Professional boundaries refers to the clear separation that should exist between professional conduct aimed at meeting the health needs of patients or clients and a practitioner’s own personal views, feelings and relationships which are not relevant to the therapeutic relationship.
Professional boundaries are integral to a good practitioner–patient/client relationship. They promote good care for patients or clients and protect both parties. Good practice involves:
a) maintaining professional boundaries…
I’m not suggesting that my correspondent is not maintaining professional boundaries, but the family are not. Of course they are not bound by the Code of Conduct but it would be reasonable for my correspondent to try to establish those professional boundaries, ie to say ‘I’m at home and am not on call as a personal paramedic’; but one has to be careful if there really is an emergency.
Queensland does not have ‘good Samaritan’ legislation like other states. The Law Reform Act 1995 (Qld) s 16 says
Liability at law shall not attach to a medical practitioner, nurse or other person prescribed under a regulation in respect of an act done or omitted in the course of rendering medical care, aid or assistance to an injured person in circumstances of emergency…
But there are no other prescribed persons and my correspondent is a paramedic, not a ‘medical practitioner’ or ‘nurse’.
The Civil Liability Act 2003 (Qld) s 26 says:
Civil liability does not attach to a person in relation to an act done or omitted in the course of rendering first aid or other aid or assistance to a person in distress if—
(a) the first aid or other aid or assistance is given by the person while performing duties to enhance public safety for an entity prescribed under a regulation that provides services to enhance public safety; and
(b) the first aid or other aid or assistance is given in circumstances of emergency; and
(c) the act is done or omitted in good faith and without reckless disregard for the safety of the person in distress or someone else.
A prescribed entity for the purposes of s 26 includes ‘Queensland Ambulance Service established under the Ambulance Service Act 1991’ (Civil Liability Regulation 2014 (Qld) r 4 and Schedule 1). Queensland Ambulance is also a prescribed entity for the purposes of s 27 that seeks to ensure that a prescribed entity is also not liable. In State of Queensland v Roane-Spray  QCA 245 (discussed in State of Queensland STILL liable for paramedic negligence (October 25, 2017)) the Queensland Court of Appeal held that amendments to the Ambulance Services Act meant that
…the Queensland Ambulance Service, in its present form (as it was at the time of Ms Roane-Spray’s injury) is not a body corporate, and does not represent the State. It is an unincorporated body, an entity within the meaning of that term in schedule 1 to the Acts Interpretation Act 1954 (Qld), which consists of the commissioner, ambulance officers, medical officers and other staff members employed under s 13, from time to time. It is in that respect similar to an unincorporated club or association, which is comprised of its members from time to time.
The relevant defendant given the structure of the Act was the state of Queensland and the State of Queensland is not a prescribed entity for either ss 26 or 27.
One would infer that my correspondent, even if responding to the neighbours was part of his or her duties as a QAS paramedic would not enjoy the benefit of s 26 as he or she would be performing ‘duties to enhance public safety for’ the State of Queensland (the putative employer of QAS paramedics, not the Queensland Ambulance Service that has no independent legal existence (Ambulance Service Act 1991 (Qld) s 13).
Let me then turn to my correspondent’s question: Is there a risk to my registration from any advice that I give to these people? I cannot see any risk to registration in answering questions and providing generic advice (such as I do on this blog) provided the advice is professional and often that will require statements such as ‘I cannot make a diagnosis’, ‘I don’t have the equipment’ and ‘you should go and ask your doctor’. There could be a risk if you provide advice you are not really in a position to give and the people rely on it or even if you qualify the advice and realise that they may still rely on it. The best advice may often be ‘you really need to go and see your doctor if you are worried about …’
In the story we’re told, my correspondent has been asked for assistance and has gone above and beyond the call of duty to respond. The question in disciplinary proceedings (which is where the risk to registration comes form) is how would other paramedics view the behaviour. Unsatisfactory professional performance is conduct of ‘the practitioner … below the standard reasonably expected of a health practitioner of an equivalent level of training or experience’. Would other paramedics judge the conduct in that way?
Transporting the person to hospital is, I would suggest, imprudent. First it means that my correspondent is driving the car not providing patient care. If the person needs to go to hospital a more prudent response would be to call triple zero so the patient can receive care en-route from paramedics equipped with necessary drugs and therapeutic agents and where proper records of treatment etc can be maintained. If the patient went ‘flat’ en route there could be a risk to registration if other paramedics judged that a practitioner of ‘equivalent level of training or experience’ would have judged that the risk to the patient’s well being of being transported in a private car existed and could easily be avoided by calling for an on-duty ambulance crew.
We can all imagine cases, however, where further assessment may be justified but the case does not need an emergency ambulance; the sort of cases that fill paramedic facebook pages and ‘Save 000 for emergency’ campaigns. As neighbours we are free to offer to assist our neighbours who would benefit from being ‘checked over’ but who don’t need an emergency ambulance. That makes sense if we are close friends, but I would infer that is not the case here. But the point of drawing that out is to show that one cannot say one should ‘always’ or one should ‘never’ do anything; the ‘right’ response depends on all the circumstances and the professional assessments made.
Equally, and hence the quote from the Code of Conduct, I don’t see that it would be open to find ‘Unsatisfactory professional performance’ if my correspondent refused to give advice and certainly if he or she refused to personally transport anyone to hospital. It would be open to any professional as part of maintaining professional boundaries to tell the neighbour that if they needed ambulance assistance, they should call triple zero and if they need to go to hospital but don’t need an ambulance call a taxi if they cannot drive themselves.
But again we cannot say there can never be a duty to help. We have been given the story in a particular way that no doubt colours all our views, but one can imagine that fellow professionals would think it ‘below the standard reasonably expected of a health practitioner of an equivalent level of training or experience’ to ignore cries for help from a neighbour with an infant child who says their baby is not breathing. I don’t think we can safely say it can never be expected that once a health professional is off duty, they can simply turn a blind eye to every request, just as Dr Lowns could not ignore the request from Ms Woods to come and help her brother; but consideration of all the circumstances would be relevant.
I am concerned about my correspondent’s position. A professional at home is at home and cannot be expected to provide a 24 hour medical service. Equally a health professional at home is still a health professional and a neighbour may well call them for help in circumstances where there are genuine threats to life and the professional neighbour is the only person with the skills to intervene. In between are many circumstances.
The Code of Conduct (Interim) recognises the limitations in providing care in an emergency where one has to consider all the circumstances, as well as the need to maintain professional boundaries which includes, I suggest, not turning one’s home into a clinic for demanding neighbours.
How my correspondent is to balance ‘being a good neighbour, professional obligations and ethics and the right to have a private life is a matter I cannot advise on. I can say that giving advice and assistance to the neighbour does not per se pose a threat to registration- there is nothing improper about helping those that ask for it should you chose to do so and the Code of Conduct expects that in a genuine emergency a professional will assist if they can. Equally refusing to attend and certainly refusing to provide personal transport and instead calling triple zero would not pose a risk to registration either. It follows that I would be very careful about adopting a policy of refusing to attend any request by a neighbour, but equally I would be very careful about ensuring those professional boundaries and not becoming their private paramedic and I would be very cautious about actually driving a neighbour who is not a close personal friend to hospital.
At the risk of ‘stepping out of my lane’ I would suggest that this issue needs careful management. My correspondent should think about raising the matter with peers for advice as well as with the QAS. It may be that if the situation becomes a problem the QAS, perhaps via a chaplain, could meet with the neighbours to help draw those necessary professional boundaries.